EXHIBIT 10.09
INGLESIDE INTERESTS, A CALIFORNIA LIMITED PARTNERSHIP
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of September
29, 1997, is made by and between Ingleside Interests, A California Limited
Partnership, a California limited partnership (the "Subscriber"), and NetSelect,
Inc., a Delaware corporation (the "Corporation").
W I T N E S S E T H:
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WHEREAS, the capitalization of the Corporation consists of (x)
35,000,000 shares of NetSelect Class A Common Stock, par value $0.001 per share
(the "NetSelect Class A Common Stock"); (y) 10,000,000 shares of NetSelect Class
B Common Stock, par value $0.001 per share (the "NetSelect Class B Common
Stock"); and (z) 5,000,000 shares of Preferred Stock, par value $0.001 per share
(the "Preferred Stock"), of which 1,647,059 shares of Preferred Stock have been
designated as Series A Convertible Preferred Stock (the "Series A Preferred
Stock"), 352,941 shares of Preferred Stock have been designated as Series B
Convertible Preferred Stock (the "Series B Preferred Stock"), and 700,000 shares
of Preferred Stock have been designated as Series C Convertible Preferred Stock
(the "Series C Preferred Stock"); and
WHEREAS, the Subscriber desires to acquire, on the date hereof, an
equity interest in the Corporation, representing 95,569 of the issued and
outstanding shares of Series C Preferred Stock (the "Subscription Shares") to be
purchased by the Subscriber in consideration of a capital contribution by the
Subscriber to the Corporation in the amount of $700,000.
NOW, THEREFORE, in consideration of these premises, the mutual
covenants and agreements contained in this Agreement, and in reliance upon the
representations and warranties and covenants set forth herein, the Subscriber
hereby agrees with the Corporation as follows:
SECTION 1. SUBSCRIPTION.
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1.1. Subscriptions. The Subscriber hereby subscribes for the
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Subscription Shares.
1.2. Contribution of Cash. On the hereof, the Subscriber shall
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purchase from the Corporation, on September 29, 1997, the Subscription Shares
for a cash payment in an amount equal to $700,000 (the "Contribution Amount").
1.3. The Closing. The Closing of the transactions contemplated by
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Section 1.1 and Section 1.2 hereof (the "Closing") shall take place on September
29, 1997 (the "Closing Date"), at the offices of Battle Xxxxxx LLP, Park Avenue
Tower, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place and
time as the parties hereto shall mutually agree.
1.4. Deliveries at the Closing.
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(a) Deliveries at Closing by the Corporation. At the Closing, the
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Corporation shall deliver to the Subscriber, stock certificates representing the
duly authorized, validly issued, fully paid and nonassessable Subscription
Shares, a copy of the resolutions of the Corporation's Board of Directors
creating and authorizing the issuance of the shares of Series C Preferred Stock
(including the Subscription Shares), and a copy of a certified copy of the
certificate of designation filed with the Delaware Secretary of State with
respect to the Series C Preferred Stock.
(b) Deliveries at Closing by the Subscriber. At the Closing, the
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Subscriber shall:
(i) deliver by wire transfer in immediately available funds the
Contribution Amount;
(ii) deliver to the Corporation that certain Amendment No. 1 to the
NetSelect, Inc. Stockholders Agreement, dated as of the date hereof ("Amendment
No. 1 to the NetSelect, Inc. Stockholders Agreement"), by and among the
Corporation and its stockholders, duly executed by Subscriber;
(iii) deliver to the Corporation that certain Investor Representation
Letter, dated as of the date hereof (the "Investor Representation Letter"),
between the Corporation and the Subscriber, duly executed by Subscriber; and
(iv) deliver to the Corporation this Agreement, duly executed by
Subscriber.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER.
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2.1. The Subscriber hereby represents and warrants to, and covenants
with the Corporation as follows:
(i) The Subscriber is purchasing the Subscription Shares for its
own account and not on behalf of any other person, group or entity, the
Subscriber is aware and acknowledges that the Subscription Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered or sold unless the Subscription Shares are registered
under the Securities Act or an exemption from the registration requirements of
the Securities Act is available;
(ii) The Subscriber has had a reasonable opportunity to ask
questions of and receive answers from the Corporation concerning the Corporation
and the Subscription Shares, and all such questions, if any, have been answered
to the full satisfaction of the Subscriber;
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(iii) No person or entity other than the Subscriber and the general
or limited partners of the Subscriber has any rights in and to the Subscription
Shares or any right to acquire the Subscription Shares;
(iv) The Subscriber has such knowledge and expertise in financial
and business matters that the Subscriber is capable of evaluating the merits and
risks involved in an investment in the Subscription Shares; and the Subscriber
is financially able to bear the economic risk of the investment in the
Subscription Shares, including a total loss of such investment;
(v) The Subscriber is not purchasing the Subscription Shares with a
view to distribution, and has no present intention of dividing or allowing
others to participate in the investment or of reselling, or otherwise
participating directly or indirectly, in a distribution of the Subscription
Shares. and shall not make any sale, transfer or pledge thereof without
registration under the Securities Act and any applicable securities laws of any
state or unless an exemption from registration is available;
(vi) The Subscriber understands that the Subscription Shares are
being offered and sold to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Corporation is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings of
the Subscriber set forth herein in order to determine the applicability of such
exemptions and the suitability of Subscriber to acquire the Subscription Shares;
(vii) The Subscriber expressly acknowledges and agrees that the
Corporation is relying upon the Purchaser's representations contained in this
Agreement; and
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
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3.1. The Corporation hereby represents and warrants to, and
covenants with the Corporation as follows:
The Corporation hereby represents and warrants to, and
covenants with, the Subscriber that the Subscription Shares are duly authorized
and, when the Contribution Amount is received by the Corporation, will be
validly issued, fully paid and nonassessable.
SECTION 4. MISCELLANEOUS.
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4.1. Fees and Expenses. Except as expressly provided herein each of
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the parties hereto shall each pay all of their own costs and expenses, including
any and all legal and accounting fees, incident to the negotiation, execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby whether or not such transactions shall be consummated,
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4.2. Counterparts. This Agreement may be executed in two or more
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counterparts, all of which taken together shall constitute one instrument.
4.3. Binding Effect. All of the terms of this Agreement shall be
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binding upon the respective personal representatives, heirs and successors of
the parties hereto and shall inure to the benefit of and be enforceable by the
parties hereto and their respective personal representatives, heirs and
successors.
4.4. Assignment. Neither this Agreement nor any right or interest
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hereunder may be assigned in whole or in part by any party without the prior
written consent of the other parties.
4.5. Entire Agreement and Amendment. This Agreement, the Investor
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Representation Letter and Amendment No. 1 to the NetSelect Stockholders
Agreement contains the entire agreement between the parties hereto with respect
to the subject matter hereof. No change, modification, extension, termination,
notice of termination, discharge, abandonment or waiver of this Agreement or any
of the
**missing pages or text
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date and year first above written.
INGLESIDE INTERESTS, A CALIFORNIA
LIMITED PARTNERSHIP
By: /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx, General Partner
NETSELECT, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx, Ph.D.
Title: Chief Executive Officer
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3.7. Notices. All notices or other communications to be given or
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made hereunder shall be in writing and shall be deemed given when delivered
personally or mailed, by registered or certified mail, return receipt requested,
postage prepaid, or overnight delivery, to the parties hereto, as the case may
be, (a) in the case of the Subscriber, to Xxxxx & Xxxxx Co., 000 Xxxxxx Xxx.,
Xxxxx 000, Xxxxxx Xxxxx, XX 00000; and (b) in the case of the Corporation, to
NetSelect, Inc., 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxx, Ph.D., facsimile no.: (000) 000-0000.
3.8. Applicable Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Delaware as applied to
residents of that State executing contracts wholly to be performed in that
State. The Subscriber hereby expressly submits to the jurisdiction of all
federal and state courts located in the State of Delaware and consents that any
process or notice of motion or other application to any of said courts or a
judge thereof may be served within or without such court's jurisdiction by
registered mail or by personal service, provided a reasonable time for
appearance is allowed. The Subscriber also waives any claim that Delaware is an
inconvenient forum.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date and year first above written.
By:__________________________________
Xxx X. Xxxxxxx, Individually
NETSELECT, INC.
By:__________________________________
Name: Xxxxxx Xxxxx, Ph.D.
Title: Chief Executive Officer
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