1
EXHIBIT 10.37
DIGITAL ENTERTAINMENT NETWORK, INC.
SUBSCRIPTION AGREEMENT
PLEASE READ CAREFULLY BEFORE SIGNING
ALL SUBSCRIPTIONS ARE SUBJECT TO ACCEPTANCE BY THE COMPANY. ALL INFORMATION
REQUIRED TO BE PROVIDED HEREIN BY SUBSCRIBERS FOR DETERMINING PURCHASER
QUALIFICATION WILL BE KEPT STRICTLY CONFIDENTIAL.
To: Digital Entertainment Network, Inc.
0000 Xxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Ladies and Gentlemen:
1. SUBSCRIPTION FOR SHARES. The undersigned hereby irrevocably subscribes
for ___________ shares of Series A Convertible Preferred Stock, par value $.01
per share (the "Shares"), of Digital Entertainment Network, Inc., a Delaware
corporation (the "Company"), for $100.00 per Share, representing an aggregate
purchase price of $__________.
2. ACCEPTANCE OF THIS SUBSCRIPTION AGREEMENT. It is understood that this
subscription is not binding on the Company until the Company accepts it, which
acceptance may be made in the Company's sole discretion. The closing of the
purchase and sale of the Shares shall take place on December 18, 1998, unless
such date is extended by the Company in its discretion.
3. REPRESENTATIONS AND WARRANTIES. To induce the Company to accept this
Subscription Agreement, the undersigned hereby represents, warrants and
covenants to the Company as follows:
A. The undersigned acknowledges that the undersigned has been
furnished with the Company's Confidential Offering Memorandum, as
supplemented or amended from time to time (the "Memorandum"), which sets
forth the relevant terms and conditions of this offering (the "Offering"),
and such other documents, materials and information as the undersigned
deems necessary or appropriate for evaluating an investment in the Company.
The undersigned confirms that the undersigned carefully has read and
understands such materials and has made such further investigation of the
Company as the undersigned deemed appropriate to obtain additional
information to verify the accuracy of such materials and to evaluate the
merits and risks of this investment. The undersigned acknowledges that the
undersigned has had the opportunity to ask questions of, and receive
answers from, the Company and persons acting on its behalf, concerning the
terms and conditions of the Offering and the information contained in the
Offering materials, and all such questions have been answered to the
undersigned's full satisfaction.
B. The undersigned understands that neither the Securities and
Exchange Commission nor any other federal or state agency has recommended,
approved or endorsed the purchase of the Shares as an investment or passed
on the accuracy or adequacy of the information set forth in the Memorandum
or any other Company documents.
C. The undersigned confirms that the undersigned is acquiring the
Shares subscribed for herein solely for the undersigned's own account, for
investment, and not with a view to the distribution or resale of such
Shares.
2
D. The undersigned understands that: there are substantial
restrictions on the transferability of the Shares; holders of the Shares
have limited rights to require the Shares to be registered under the Act
(as hereinafter defined) or the securities laws of any state; there will be
no public market for the Shares; and it may not be possible for the
undersigned to liquidate the undersigned's investment in the Company, and
accordingly, the undersigned may have to hold the Shares, and bear the
economic risk of this investment, indefinitely.
E. If the undersigned is an individual, the undersigned has the legal
capacity and authority to execute, deliver, and perform the undersigned's
obligations under this Subscription Agreement. If the undersigned is a
corporation, partnership, trust, or other entity, the person executing this
Subscription Agreement has the full power and authority to execute and
deliver this Subscription Agreement on behalf of the subscribing entity,
and such entity is duly formed and organized, validly existing and in good
standing under the laws of its jurisdiction of formation, and such entity
has duly authorized the execution, delivery and performance of its
obligations under this Subscription Agreement.
F. If the undersigned is an entity, it has not been organized for the
specific purpose of acquiring the Shares or, if it has been organized for
the specific purpose of acquiring Shares, each of its beneficial owners is
separately accredited as defined in Rule 501(a) of Regulation D under the
Securities Act of 1933, as amended (the "Act").
G. If the undersigned is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), in making the proposed
investment it is aware of and has taken into consideration the applicable
fiduciary standards of conduct under ERISA, including but not limited to
the prudence and diversification requirements of Section 404(a)(1) of
ERISA.
H. The undersigned confirms that Shares were not offered to the
undersigned by any means of general solicitation or general advertising,
that the undersigned has received no representations, warranties or written
communications with respect to the offering of Shares other than those
contained in the Memorandum and in entering into this transaction the
undersigned is not relying upon any information other than that contained
in the Memorandum and the results of the undersigned's own independent
investigation.
I. The undersigned hereby understands and agrees that this
subscription, when accepted by the Company, is irrevocable and that the
representations and warranties set forth in this Subscription Agreement
shall survive the acceptance hereof by the Company.
J. The undersigned acknowledges that the undersigned has been advised
to consult with the undersigned's own attorney regarding legal matters
concerning the Shares and to consult with the undersigned's tax advisor
regarding the tax consequences of owning the Shares.
4. RELIANCE ON REPRESENTATIONS AND WARRANTIES. The undersigned
understands the meaning of the representations and warranties contained in this
Subscription Agreement and in the suitability questionnaire attached hereto (the
"Suitability Questionnaire") and understands and acknowledges that the Company
is relying upon the representations and warranties contained in this
Subscription Agreement and in the Suitability Questionnaire in determining
whether the Offering is eligible for exemption from the registration
requirements contained in the Act and in determining whether to accept the
subscription tendered hereby. The undersigned represents and warrants that the
information contained in this Subscription Agreement and in the Suitability
Questionnaire is true and correct as of the date hereof and agrees to notify
immediately the Company of any changes in such information (or, if there have
been any changes in the information provided to the Company by the undersigned
in the Suitability Questionnaire since the date the Suitability Questionnaire
was furnished, the undersigned has advised the Company in writing of such
changes). The undersigned hereby agrees to indemnify and hold harmless the
Company and each director, officer, stockholder, affiliate, attorney,
representative and employee thereof from and against any and all losses,
damages, costs, expenses, liabilities or attorneys' fees incurred, directly or
indirectly, from a breach of any representation or warranty of the undersigned,
whether contained in this Subscription Agreement or the Suitability
Questionnaire. Notwithstanding any of the representations, warranties,
acknowledgments or agreements made in this Subscription Agreement and in the
Suitability Questionnaire by the undersigned, the undersigned does not
2
3
hereby, thereby or in any other manner waive any rights granted to the
undersigned under federal or state securities law.
5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. In the event that this
subscription is accepted, the undersigned agrees that the representations,
warranties and agreements set forth in this Subscription Agreement and in the
Suitability Questionnaire shall survive the acceptance of this subscription.
6. ASSIGNABILITY. The undersigned agrees not to transfer or assign this
Subscription Agreement, or any interest of the undersigned herein. This
Subscription Agreement and the representations and warranties contained herein
shall be binding upon the heirs, executors, administrators and other successors
of the undersigned and this Subscription Agreement shall inure to the benefit of
and be enforceable by the Company, and its successors and assigns. If there is
more than one signatory hereto, the obligations, representations, warranties,
and agreements of the undersigned are made jointly and severally.
7. APPLICABLE LAW. This Agreement shall be construed in accordance with
the laws of the State of Delaware, without regard to principles of conflicts of
law.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof, may be
amended only by a writing executed by all of the parties and supersedes any
prior agreement between the parties with respect to the subject matter hereof.
9. CONSENT TO REPRESENTATION. The undersigned acknowledges and agrees
that Xxxxxx Xxxxxx & Xxxxx has acted as legal counsel to the Company in
connection with this offering of Shares and that such firm has in the past and
may from time to time in the future render services to the Company and its
affiliates. The undersigned further acknowledges and agrees that such firm may
also, in the future, render services to the Company with respect to activities
other than the offer and sale of Shares. The undersigned understands that Xxxxxx
Xxxxxx & Zavis is not representing the undersigned or any other prospective
purchaser of Shares in connection with this Offering.
10. LOCK-UP AGREEMENT. The undersigned acknowledges and agrees that, if
requested by the underwriters of the Company's initial public offering of Common
Stock ("IPO"), the undersigned will not, without the prior written consent of
such underwriters, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, or otherwise
dispose of or transfer any shares of Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock (collectively with Common
Stock, "Common Stock Equivalents") or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequences of ownership of Common Stock Equivalents,
prior to and for up to 365 days after the Company's IPO.
3
4
DIGITAL ENTERTAINMENT NETWORK, INC.
Subscription Agreement
SIGNATURE PAGE FOR INDIVIDUALS AND JOINT ACCOUNTS
I/we hereby subscribe for ___________ Shares, at a price of $100.00 per
Share, for a total subscription price of $________________.
---------------- ---------------- --------------------- -------
Signature Print Name Social Security No. Date
---------------- ---------------- --------------------- -------
Signature Print Name Social Security No. Date
----------------------------------- ------------------------------------------
----------------------------------- ------------------------------------------
----------------------------------- ------------------------------------------
Residential Address Mailing Address
Type of Ownership (Initial One) ____ Individual
____ Tenants in Common (Both Parties Sign)
____ Joint Tenants with Right of Survivorship
(Both Parties Sign)
____ Community Property (Both Parties Sign)
4
5
DIGITAL ENTERTAINMENT NETWORK, INC.
Subscription Agreement
SIGNATURE PAGE FOR ENTITIES
The undersigned entity hereby subscribes for ___________ Shares, at a
price of $100.00 per Share, for a total subscription price of $______________.
Form of Organization: ___ Partnership, ___ Limited Liability Company,
___Corporation, ___ Trust, ___ Other (Explain ________________________)
Full Name of Subscriber: _____________________________________________________
Tax I.D. No. _____________________
Address:
-----------------------------------
-----------------------------------
-----------------------------------
Telephone:
---------------------------------
The undersigned warrants that he or she has full power and authority to
execute this Subscription Agreement on behalf of the above entity, and
investment in the Company is not prohibited by the governing documents of the
entity.
Name:
--------------------------------------
(Entity Name)
By:
----------------------------------------
(Signature)
--------------------------------------
(Signer's Printed Name)
Date:
-------------------------------------
5
6
ACCEPTANCE
The undersigned hereby accepts the foregoing subscription this ____ day
of ______________, 1999. This subscription shall not be binding until accepted
by the Company and shall become effective as of the date of such acceptance,
upon the terms set forth in Sections 1 and 2 of the Subscription Agreement.
DIGITAL ENTERTAINMENT NETWORK, INC.
By:
----------------------------------------
Name: Xxxx X. Xxxxx
Title: General Counsel
Executive VP Operations
6
