EXHIBIT 10.37
WARRANT
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement") is made as of December
30, 1999, by and between XxxxxXxxxx.xxx Inc., a Delaware corporation (the
"Company"), and Oxygen Media, LLC, a Delaware limited liability company (the
"Oxygen").
The parties hereto agree as follows:
1. Purchase and Sale of Securities.
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(a) Authorization of Issuance. The Company's Board of Directors (the
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"Board") has authorized the issuance and sale to Oxygen of a warrant,
substantially in the form attached hereto as Exhibit A (the "Warrant"), to
purchase an aggregate of 136,500 shares of common stock, par value $.01 per
share of the Company (the "Common Stock"). The Warrant is being issued pursuant
to that certain Term Sheet dated October 28, 1999, between the Company, Oxygen
and The Right Start, Inc., a copy of which has been attached hereto as Exhibit B
(the "Term Sheet").
(b) Purchase and Sale. Subject to the terms and conditions set forth
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in the Warrant and this Agreement, including the covenants contained in this
paragraph, Oxygen agrees to purchase, and the Company agrees to issue and sell
to Oxygen, a Warrant to purchase 136,500 shares of Common Stock, subject to
adjustment from time to time as set forth in the Warrant.
(c) Oxygen Representation and Warranties. In connection with the
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purchase and sale of the Warrant and the Common Stock issuable upon conversion
of the Warrant (the "Warrant Stock"), Oxygen represents and warrants to the
Company that:
(i) the Warrant and the Warrant Stock to be acquired by Oxygen
pursuant to this Agreement will be acquired for Oxygen's own accounts and
not with a view to, or intention of, distribution thereof in violation of
the Securities Act of 1933, as amended (the "Securities Act"), or any
applicable state securities laws, and the Warrant and the Warrant Stock
will not be disposed of in contravention of the Securities Act or any
applicable state securities laws;
(ii) Oxygen is familiar with the term "accredited investor" as
defined in Rule 501 under the Securities Act and Oxygen is an "accredited
investor" within the meaning of such term in Rule 501 under the Securities
Act;
(iii) Oxygen is sophisticated in financial matters and is able
to evaluate the risks and benefits of the investment in the Company's
securities;
(iv) Oxygen is able to bear the economic risk of its investment
in the Warrant and the Common Stock issuable on conversion thereof for an
indefinite period of
time because the Warrant and the Common Stock (A) have not been registered
under the Securities Act and, therefore, cannot be sold unless subsequently
registered under the Securities Act or an exemption from such registration
is available and (B) are subject to additional restrictions as provided
herein;
(v) Oxygen has had an opportunity to ask questions
and receive answers concerning the terms and conditions of the sale of the
Warrant and the Warrant Stock and has had full access to such other
information concerning the Company as it has requested; and
(vi) this Agreement constitutes the legal, valid and binding
obligation of Oxygen, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by Oxygen does not
and will not conflict with, violate or cause a breach of any agreement,
contract or instrument to which Oxygen is party or any judgment, order or
decree to which Oxygen is subject which would have a material adverse
effect on Oxygen or the Company.
2. Legends. Oxygen agrees that a legend in substantially the form set
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forth below shall be placed on all certificates evidencing the Warrant or the
Warrant Stock (in addition to any legend required under applicable state
securities laws). Such legend shall read as follows:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR
TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER SUCH ACT OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL OR OTHER EVIDENCE, SATISFACTORY TO THE COMPANY AND
ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
3. Representations and Warranties of the Company.
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(a) Corporate Existence; Authority. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of Delaware, and
it has all requisite power and authority to carry on its business as it is being
conducted.
(b) Authorization. All corporate action necessary for the
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authorization, execution and delivery of this Agreement and the Warrant by the
Company, and the performance of all obligations of the Company hereunder and
thereunder, has been taken, and this Agreement and the Warrant, each when
executed and delivered, will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their respective terms except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting creditors' rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies, and (iii) as to rights to indemnity and
contribution that may be limited by applicable laws.
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(c) Valid Issuance of Common Stock. Upon issuance in accordance with
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the terms of Warrant, the Common Stock issuable upon exercise of the Warrant
will be duly authorized and validly issued, fully paid, and nonassessable and
will be free of restrictions on transfer other than restrictions on transfer
under this Agreement, the Warrant and under applicable state and federal
securities laws.
(d) No Conflicts. The execution, delivery and performance by the
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Company of this Agreement and the Warrant, and the consummation of the
transactions contemplated hereby and thereby, will not result in any violation,
be in conflict with or constitute, with or without the passage of time or giving
of notice, a default under the Company's certificate of incorporation or bylaws
or, to the Company's knowledge, any agreement, contract or instrument to which
the Company is a party, the effect which would have a material adverse effect on
the Company.
4. Registration Rights.
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(a) Incidental Registration. If the Company at any time proposes to
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register any of its securities under the Securities Act on Form X-0, X-0 or S-3
or the equivalent (otherwise than to register debt securities under Form S-3, or
any comparable successor form), whether of its own accord or at the request of
any holder or holders of such securities, it will each such time give written
notice to Oxygen of its intention so to do.
Upon the written request of Oxgyen given within 20 days after receipt
of any such notice, the Company will use its best efforts to cause all
Restricted Securities (including Restricted Securities issuable upon conversion
of a Warrant that is converted at least 15 days prior to the effective date of
the registration for such securities) to be registered under the Securities Act
pursuant to such registration statement, all to the extent requisite to permit
the sale or other disposition (in accordance with the intended methods thereof
as aforesaid) by the prospective Seller or Sellers of the Restricted Securities
so registered. For purposes of this Agreement, the term "Restricted Securities"
shall mean all Warrant Stock that bears the restrictive legend set forth in
Section 2. For purposes of this Agreement, the term "Seller" or "Sellers" shall
mean a holder of Restricted Securities of the Company for which the Company
shall be required to file a registration statement or which shall be registered
under the Securities Act at the request of such holder pursuant to the
provisions of this Section 4. Neither the Company nor any of its Affiliates (as
defined in the Warrants) shall be deemed a "Seller" for any purposes of this
Agreement.
If the managing underwriter for the respective offering, if any,
advises the Company in writing that the inclusion in such registration of some
or all of the Restricted Securities sought to be registered by the Seller or
Sellers in its opinion will cause the proceeds or the price per unit the Company
or the requesting or demanding holder of securities will derive from such
registration to be reduced or that the number of securities to be registered at
the instance of the Company or such requesting or demanding holder plus the
number of securities sought to be registered by the Sellers is too large a
number to be reasonably sold, the number of securities sought to be registered
for each Seller shall be reduced pro rata, in proportion to the
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number of securities sought to be registered by all Sellers holding pari passu
registration rights, to the extent necessary to reduce the number of securities
to be registered to the number recommended by the managing underwriter. It is
the intention of the Company that Oxygen's registration rights rank pari passu
as to cutbacks with that of registration rights granted to other holders of the
Company's securities, except as set forth in that certain Investors' Rights
Agreement dated as of July 9, 1999 between the Company and the investors named
therein.
(b) Registration Procedures.
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(i) If and whenever the Company is required by the provisions of
this Section 4 to use its best efforts to effect the registration of any of
the Restricted Securities under the Securities Act, the Company will
(except as otherwise provided in this Agreement), as expeditiously as
possible,
(A) cooperate with any underwriters for, and the Sellers
of, such Restricted Securities, and will enter into a usual and
customary underwriting agreement with respect thereto (provided that
the Company shall not be required to enter into more than two such
underwriting agreements (one for a domestic offering and one for an
international offering) in connection with any such registration) and
take all such other reasonable actions as are necessary or advisable
to permit, expedite and facilitate the disposition of such Restricted
Securities in the manner contemplated by the related registration
statement, in each case to the same extent as if all the securities
then being offered were for the account of the Company, and the
Company will provide to any Seller of Restricted Securities, any
underwriter participating in any distribution thereof pursuant to a
registration statement, and any attorney, accountant or other agent
retained by any Seller or underwriter, reasonable access to
appropriate Company officers and employees to answer questions and to
supply information reasonably requested by any such Seller,
underwriter, attorney, accountant or agent in connection with such
registration statement;
(B) furnish or cause to be furnished to each Seller of
Restricted Securities covered by such registration statement,
addressed to such Sellers, a copy of the opinion of counsel for the
Company, and a copy of the "comfort" letter signed by the independent
public accountants who have certified the Company's financial
statements included in the registration statement, delivered on the
closing date to the underwriters of such Restricted Securities;
(C) prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to
cause such registration statement to become and remain effective; and
prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of all securities covered by
such
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registration statement whenever the Seller or Sellers of such
securities shall desire to sell or otherwise dispose of the same;
provided that no such registration statement will be filed by the
Company until counsel for the Sellers of securities included therein
shall have had a reasonable opportunity to review the same and to
exercise their rights under clause (A) above with respect thereto and
no amendment to any such registration statement naming such Sellers as
selling shareholders shall be filed with the Commission until such
Sellers shall have had at least seven days to review such registration
statement as originally filed and theretofore amended and to exercise
their rights under clause (A) above;
(D) furnish to each Seller such numbers of copies of a
summary prospectus or other prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act,
and such other documents, as such Seller may reasonably request in
order to facilitate the public sale or other disposition of the
securities owned by such Seller;
(E) use its best efforts to register or qualify the
securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as each Seller shall
request, and do any and all other acts and things which may be
necessary or advisable to enable such Seller to consummate the public
sale or other disposition in such jurisdictions of the securities
owned by such Seller, except that the Company shall not for any such
purpose be required to qualify to do business as a foreign corporation
in any jurisdiction wherein it is not so qualified or to file therein
any general consent to service;
(F) in the event of the issuance of any stop order
suspending the effectiveness of any registration statement or of any
order suspending or preventing the use of any prospectus or suspending
the qualification of any Restricted Securities for sale in any
jurisdiction, use its best efforts promptly to obtain its withdrawal;
(G) in the event any prospectus used in connection with the
distribution of Restricted Securities registered under the Securities
Act pursuant to the provisions of this Section 4 is discovered to
contain any untrue statement of any material fact or any omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, promptly
provide each holder that shall have requested registration of
Restricted Securities with amended prospectuses correcting such
statements;
(H) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission; and
(I) list such securities on any securities exchange on
which any stock of the Company is then listed, if the listing of such
securities is then permitted under the rules of such exchange;
provided, however, that notwithstanding any other provision of this
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notwithstanding any other provision of this Section 4, the Company
shall not be required to maintain the effectiveness of any
registration statement for a period in excess of one year (plus any
period during which the effectiveness of such registration has been
suspended). From time to time after a transfer of Warrant Stock
pursuant to a registration statement the Company will file all reports
required to be filed by it under the Securities Act, the Exchange Act
of 1934, as amended (the "Exchange Act") and the rules and regulations
adopted by the Securities and Exchange Commission thereunder, and will
take such further action as any holder or holders of Restricted
Securities may reasonably request, all to the extent required to
enable such holders to sell Restricted Securities pursuant to such
laws and regulations thereunder. Upon written request, the Company
will deliver to such holders a written statement as to whether it has
complied with such requirements.
(ii) In connection with the registration of Restricted
Securities under the Securities Act pursuant to the provisions of this
Section 4, each holder of Restricted Securities requesting such
registration will (except as otherwise provided in this Agreement), as
expeditiously as possible,
(A) in the event of the issuance of any stop order
suspending the effectiveness of any registration statement or of any
order suspending or preventing the use of any prospectus or suspending
the qualification of any Restricted Securities for sale in any
jurisdiction, use its best efforts promptly to discontinue the
disposition of such Restricted Securities owned by such holders in
such jurisdiction until such order has been withdrawn; and
(B) in the event any prospectus used in connection with the
distribution of Restricted Securities registered under the Securities
Act pursuant to the provisions of this Section 4 is discovered to
contain any untrue statement of any material fact or any omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, use its best
efforts promptly to discontinue the disposition of such Restricted
Securities owned by such holder until amended prospectuses correcting
such statements have been provided to such holder.
(c) Expenses; Limitations on Registration. All expenses incident to
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the Company's performance of its obligations in connection with any registration
of the Sellers' Restricted Securities under this Agreement including, without
limitation, printing expenses, fees and disbursements of counsel for the
Company, fees of the National Association of Securities Dealers, Inc. in
connection with its review of any offering contemplated in any registration
statement and expenses of any special audits to which the Company shall agree or
which shall be necessary to comply with governmental requirements in connection
with any such registration shall be paid by the Company. In addition, the
Company shall pay (i) all registration and filing fees for the Sellers'
Restricted Securities under federal and state securities laws, and (ii) expenses
of registering or qualifying under or complying with the securities or blue sky
laws of any
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jurisdictions. Notwithstanding the foregoing, in the event a Seller withdraws
its request for registration of Restricted Securities other than by reason of
(1) the Company's failure to perform its obligations in connection with such
registration, (2) the failure to be timely satisfied of any closing condition
contained in any underwriting agreement entered into in connection with such
registration and not within the exclusive control of such Seller, (3) the
termination of such underwriting agreement by the underwriters party thereto
other than by reason of the failure on the part of such Seller to perform its
obligations thereunder, or (4) the occurrence of any change that, in the sole
judgment of such Seller, may materially adversely affect the selling price or
marketability of the Restricted Securities for which registration was requested,
including, without limitation, (A) any material adverse change in the business,
business prospects, properties, condition (financial or otherwise) or operations
of the Company, (B) the suspension of trading in the Common Stock by the
Commission or any national securities exchange or automated quotation system or
trading in securities generally on the New York Stock Exchange or the
establishment of limited or minimum prices on any such national exchange or
quotation system, (C) the declaration of any banking moratorium by Federal, New
York or California State authorities, or (D) the occurrence of any outbreak or
escalation of hostilities, the declaration by the United States of any national
emergency or war or the occurrence of any other calamity or crisis the effect of
which on financial markets is such, in the sole judgment of the managing
underwriter for such Seller, as to make it impracticable or inadvisable to
proceed with the offering of the Restricted Securities, then such Seller shall
bear such expenses. In addition, under all circumstances, each Seller shall pay
one hundred percent (100%) of the gross underwriting spread or fees with respect
to such Seller's Restricted Securities covered by any registration pursuant to
this Section 2.
It shall be a condition precedent to the obligation of the Company to
take any action pursuant to this Section 4 in respect of the securities which
are to be registered at the request of any prospective Seller that such
prospective Seller shall furnish to the Company such information regarding such
Seller and the securities held by such Seller and the intended method of
disposition thereof as the Company shall reasonably request and as shall be
required in connection with the action to be taken by the Company.
(d) Indemnification.
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(i) In the event of any registration of any Restricted Securities
under the Securities Act pursuant to this Section 4, the Company shall
indemnify and hold harmless the Seller of such Restricted Securities and
any underwriter thereof, and their respective directors and officers, and
each other Person, if any, who controls such Seller or any such underwriter
within the meaning of the Securities Act ("Controlling Person"), against
any losses, claims, damages or liabilities, joint or several, to which such
Seller or underwriter or any such director or officer or Controlling Person
may become subject under the Securities Act or any other statute or at
common law, insofar as such losses, claims, expenses, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(A) any alleged untrue statement of any material fact contained, on the
effective date thereof, in any registration statement under which such
securities were registered under the Securities Act, or in any preliminary
prospectus or final prospectus contained
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therein, or any amendment or supplement thereto, or (B) any alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall
reimburse such Seller or such director, officer or Controlling Person for
any legal or any other expenses reasonably incurred by such Seller or such
director, officer or Controlling Person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon any alleged untrue statement or alleged omission made in such
registration statement, preliminary prospectus, prospectus, or amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such Seller
specifically for use therein. The indemnity provided in this subsection
shall remain in full force and effect regardless of any investigation made
by or on behalf of such Seller or such director, officer or Controlling
Person, and shall survive the transfer of such securities by such Seller.
(ii) Each holder of any Restricted Securities shall, by acceptance
thereof, severally and not jointly, indemnify and hold harmless the
Company, each other selling stockholder and any underwriter of such
Restricted Securities and their respective directors and officers and each
other Person, if any, who controls the Company or such underwriter (within
the meaning of the Securities Act) against any losses, claims, expenses,
damages or liabilities, joint or several, to which the Company or such
underwriter or any such director or officer or any such Person may become
subject under the Securities Act or any other statute or at common law,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (A) any alleged untrue
statement of any material fact contained, on the effective date thereof, in
any registration statement under which Restricted Securities were
registered under the Securities Act, or in any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereto,
or (B) any alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such alleged
untrue statement or alleged omission was contained in written information
furnished to the Company through an instrument duly executed by such holder
specifically for use therein, and shall reimburse the Company or such
director, officer or other Person for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
loss, claim, damage, liability or action; provided that in no event shall
such indemnification amount to be paid hereunder be in excess of the net
proceeds received by such selling stockholder in such offering .
(iii) Indemnification similar to that specified in clauses (i) and
(ii) of this Section 4(d) shall be given by the Company and each holder of
any Restricted Security (with such modifications as shall be appropriate)
to each other and to any underwriter with respect to any required
registration or other qualification of any Restricted Securities under any
federal or state law or regulation of governmental authority other than the
Securities Act. The indemnity and expense reimbursements obligations of the
Company under clauses (i)
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and (ii) of this Section 4(d) shall be in addition to any liability the
Company may otherwise have.
(iv) Each Person (an "Indemnitor") who under the preceding provisions
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of this Section 4(d) agrees to indemnify another Person (the "Indemnitee")
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shall have the right, subject to the provisions hereto, to designate
counsel (acceptable to the Indemnitee) to defend any case or proceeding
against the Indemnitee arising in respect of any claim of liability for
which such indemnification may be claimed, to the end that duplication of
legal expense may be minimized; provided that, if the Indemnitee notifies
the Indemnitor that the former has been advised by its counsel that any
single counsel in such case or proceeding would have a conflict of interest
in representing both the Indemnitor and the Indemnitee, the Indemnitee may
designate its own counsel in such case or proceeding and, to the extent so
provided above in this Section 4(d), shall be entitled to be reimbursed by
Indemnitor for its legal expenses reasonably incurred in connection with
defending itself in such case or proceeding.
(e) Termination of Registration Rights. The right of any holder to
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request registration or inclusion in any registration pursuant to this Section 4
shall terminate on the closing of the first Company-initiated registered public
offering of Common Stock of the Company, if all shares of Warrant Stock held by
such holder (assuming exercise in full of the Warrant) may immediately be sold
under Rule 144 during any 90-day period, or the earlier of (i) such date after
the closing of the first Company-initiated registered public offering of Common
Stock of the Company as all shares of Warrant Stock held by such holder
(assuming exercise in full of the Warrant) may immediately be sold under Rule
144 during any 90-day period, and (ii) five (5) years after the closing of the
first Company-initiated registered public offering.
5. "Lock-Up" Agreement. If requested by the Company or any representative
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of an underwriter of Common Stock (or other securities) of the Company following
the Company's initial public offering, Oxygen shall not sell or otherwise
transfer or dispose of any Common Stock or other securities of the Company held
by it (other than those included in the registration) during the one hundred
eighty (180) day period following the effective date of a registration statement
of the Company filed under the Securities Act. If requested by the Company or
any representative of an underwriter of Common Stock (or other securities) of
the Company following the first public offering of the Company, Oxygen shall not
sell or otherwise transfer or dispose of any Common Stock or other securities of
the Company held by such holders (other than those included in the registration)
during the ninety (90) day period following the effective date of a registration
statement of the Company filed under the Securities Act. The obligations
described in this Section 5 shall not apply to a registration relating solely to
employee benefit plans on Form S-1 or Form S-8 or similar forms that may be
promulgated in the future, or a registration relating solely to a transaction on
Form S-4 or similar forms that may be promulgated in the future. The Company may
impose stop-transfer instructions with respect to the shares of Common Stock (or
other securities) subject to the foregoing restriction until the end of such
lock-up periods.
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6. Notices. Any notice delivered in connection with this Agreement must
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be in writing and must be either personally delivered, mailed by first class
mail (postage prepaid and return receipt requested), sent by reputable overnight
courier service (charges prepaid) or sent by facsimile (with follow-up telephone
confirmation of receipt) to the recipient at the address and facsimile number
below indicated (unless such information is subsequently modified in writing by
such recipient and delivered pursuant to this notice provision):
If to the Company, addressed to:
XxxxxXxxxx.xxx Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxx X
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer or General Counsel
Facsimile: (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Oxygen, addressed to:
Oxygen Media
00 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
6. General Provisions.
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(a) This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective, permitted successors
and assigns. Either party may assign any of its rights or obligations hereunder
without the prior written consent of the other party
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hereto to a successor to substantially all of such assigning party's business or
assets, provided that such successor agrees to be bound by this Agreement.
(b) So long as the Warrant and the Warrant Stock have not been
registered under the Securities Act, prior to transfer of a Warrant or Warrant
Stock by Oxygen, Oxygen agrees that its transferee will execute and deliver a
copy of this Agreement to the Company and Oxygen.
(c) This Agreement shall be governed by and construed in accordance
with the law of the State of Delaware (excluding the law of conflicts thereof).
(d) No course of dealing or any delay or failure to exercise any
right, power or remedy hereunder on the party of any party hereto shall operate
as a waiver of or otherwise prejudice such party's rights, powers or remedies.
(e) Notwithstanding anything in this Agreement, the Company shall not
be obligated to issue or sell any of the Warrant Stock if, in the judgment of
the Board, such issuance or sale may violate Federal or applicable state
securities laws or regulations or may require the Company to register or qualify
any such Warrant Stock under any Federal or state securities laws, or require
the Company or any of its agents or representatives to register or qualify with
any governmental agency or organization, pursuant to such laws or regulations.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
XXXXXXXXXX.XXX INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
OXYGEN MEDIA, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Taltz
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Name: Xxxxxx X. Taltz
Title: General Counsel
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