Exhibit 10.12
XXXXXXXX.XXX, INC.
-------------------------------------------------------------------------------
COMMON STOCK PURCHASE AGREEMENT
-------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
------
1. SALE OF SHARES; USE OF PROCEEDS..........................................................................1
1.1 SALE OF SHARES..................................................................................1
1.2 USE OF PROCEEDS.................................................................................1
2. THE CLOSING..............................................................................................1
2.1 CLOSING DATE....................................................................................1
2.2 DELIVERY........................................................................................2
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.................................................2
3.1 ORGANIZATION AND STANDING, ETC..................................................................2
3.2 AUTHORIZATION...................................................................................2
3.3 CAPITALIZATION..................................................................................3
3.4 NON-CONTRAVENTION...............................................................................3
3.5 FINANCIAL STATEMENTS............................................................................4
3.6 OWNERSHIP OF EQUITY.............................................................................4
3.7 TITLE TO PROPERTIES AND ASSETS; LIENS, ETC......................................................4
3.8 PATENTS AND OTHER INTANGIBLE ASSETS.............................................................5
3.9 LITIGATION, ETC.................................................................................5
3.10 LABOR MATTERS...................................................................................5
3.11 INVESTMENT COMPANY..............................................................................5
3.12 INSURANCE.......................................................................................5
3.13 OFFERING........................................................................................5
3.14 BROKERS AND FINDERS.............................................................................6
3.15 ENVIRONMENTAL LAWS..............................................................................6
3.16 ABSENCE OF CHANGES..............................................................................6
3.17 FURTHER ASSURANCES..............................................................................6
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER..........................................................7
4.1 EXPERIENCE......................................................................................7
4.2 ABILITY TO BEAR ECONOMIC RISK...................................................................7
4.3 INVESTMENT......................................................................................7
4.4 RULE 144........................................................................................7
4.5 ACCESS TO DATA..................................................................................7
4.6 AUTHORIZATION...................................................................................8
4.7 COMPLIANCE WITH OTHER INSTRUMENTS...............................................................8
4.8 ACCREDITED INVESTOR.............................................................................8
5. CONDITIONS TO CLOSING OF COMPANY.........................................................................8
5.1 REPRESENTATIONS.................................................................................8
5.2 COVENANTS.......................................................................................8
5.3 PURCHASE PRICE..................................................................................9
i
6. CONDITION TO CLOSING OF PURCHASER........................................................................9
6.1 REPRESENTATIONS.................................................................................9
6.2 COVENANTS.......................................................................................9
6.3 LEGAL OPINION...................................................................................9
6.4 SECOND AMENDED AND RESTATED INVESTORS'RIGHTS AGREEMENT..........................................9
6.5 CLOSING OF IPO..................................................................................9
6.6 UNDERWRITING AGREEMENT..........................................................................9
7. MISCELLANEOUS............................................................................................9
7.1 GOVERNING LAW...................................................................................9
7.2 SURVIVAL.......................................................................................10
7.3 SUCCESSORS AND ASSIGNS.........................................................................10
7.4 ENTIRE AGREEMENT; AMENDMENT....................................................................10
7.5 NOTICES, ETC...................................................................................10
7.6 DELAYS OR OMISSIONS............................................................................11
7.7 COUNTERPARTS...................................................................................11
7.8 SEVERABILITY...................................................................................11
7.9 TITLE AND SUBTITLES............................................................................11
7.10 BEST OF KNOWLEDGE; KNOWLEDGE...................................................................11
7.11 FURTHER ASSURANCES AND COOPERATION.............................................................11
ii
XXXXXXXX.XXX, INC.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT is made as of the 23rd day of
February, 1999 (the "Effective Date") by and between XXXXXXXX.XXX, INC., a
Delaware corporation (the "Company"), and COMCAST INTERACTIVE INVESTMENTS, INC.,
a Delaware corporation (the "Purchaser").
WHEREAS, Purchaser wishes to make an investment in the Company and the
Company wishes to sell shares of its common stock, par value $.001 per share
(the "Common Stock"), to the Purchaser;
WHEREAS, the Company has filed a registration statement with the
Securities and Exchange Commission (the "Commission") with respect to the
planned initial public offering ("IPO") of shares of its Common Stock (such
registration statement, including the prospectus (the "Prospectus"), financial
statements and schedules, exhibits and all other documents filed as a part
thereof, together with any amendments thereto, is hereinafter referred to as the
"Registration Statement"); and
WHEREAS, the Purchaser is an "accredited investor" and wishes to
purchase from the Company shares of its Common Stock in a transaction exempt
from registration under the Securities Act of 1933, as amended, such purchase to
close simultaneously with the closing of the IPO.
NOW, THEREFORE, the parties hereto agree as follows:
1. SALE OF SHARES; USE OF PROCEEDS
1.1 SALE OF SHARES. Subject to the terms and conditions hereof, at the
Closing (as hereinafter defined) the Company hereby agrees to issue and sell to
Purchaser and Purchaser agrees to purchase from the Company, for the aggregate
amount of $2,500,000, shares of the Company's Common Stock (the "Shares") at a
price per share equal to the price at which the Company's Common Stock is sold
to the public in the IPO less the seven percent (7%) underwriting discount being
paid to the underwriters in connection with the IPO (the "Per Share Purchase
Price").
1.2 USE OF PROCEEDS. The Company will use the proceeds from the sale of
the Shares for working capital and general corporate purposes.
2. THE CLOSING
2.1 CLOSING DATE. The closing of the purchase and sale of the Shares
(the "Closing") shall occur simultaneously with the closing of the IPO. The
Company will give Purchaser two (2) business days' written notice of the date of
the closing (the "Closing Date"). The Company will notify the Purchaser of the
IPO price promptly after it is determined by the Company's pricing committee.
2.2 DELIVERY. At the Closing (i) Purchaser will deliver to the Company
a check or wire transfer funds in the amount of $2,500,000 (the "Aggregate
Purchase Price") and (ii) the Company shall deliver a certificate representing
the number of Shares equal to the amount of $2,500,000 divided by the Per Share
Purchase Price, registered in the name of Purchaser. In the event that the
Aggregate Purchase Price would result in the issuance of a fractional share,
then the Aggregate Purchase Price shall be increased to reflect the issuance
of one additional share at the Per Share Purchase Price.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company represents and warrants to the Purchaser as of the date
hereof as follows:
3.1 ORGANIZATION AND STANDING, ETC. The Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the state of Delaware. The Company is duly qualified and is in good
standing as a foreign corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which will not, individually or in the
aggregate, have a material adverse effect on the Company's business, properties,
assets, operations, condition (financial or other) or results of operations (a
"Material Adverse Effect"). The Company has all requisite corporate power and
authority and all necessary material consents, approvals, authorizations,
orders, registrations, qualifications, licenses and permits of and from all
public, regulatory or governmental agencies and bodies to own, lease and operate
its properties and conduct its business as now being conducted and as described
in the Registration Statement and the Prospectus, and no such consent, approval,
authorization, order, registration, qualification, license or permit contains a
materially burdensome restriction not adequately disclosed in the Registration
Statement and the Prospectus.
3.2 AUTHORIZATION. This Agreement and the transactions contemplated
herein have been duly and validly authorized by the Company and this Agreement
has been duly and validly executed and delivered by the Company. This Agreement
constitutes the valid and legally binding obligation of the Company, enforceable
in accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies, and (iii) to the extent that any indemnification
provision contained herein may be limited by applicable federal or state
securities laws. The Shares, when issued, delivered and sold in accordance in
compliance with the provisions of this Agreement, will be duly and validly
issued and outstanding, fully paid and nonassessable, and will be free of any
liens, encumbrances or restrictions on transfer; provided, however that the
Shares may be subject to restrictions on transfer under the state and/or federal
securities laws.
3.3 CAPITALIZATION. Effective as of the Closing, the Company expects
that its authorized capital stock shall consist of 50,000,000 shares of Common
Stock, and 5,000,000 shares of preferred stock, $.001 par value per share (the
"Preferred Stock"). All of the outstanding shares of Common Stock (i) are, or
will be on the Closing Date, duly and validly authorized and issued, fully paid
and nonassessable, (ii) were not issued and are not now in violation of or
subject to any preemptive rights and (iii) will be, following the Closing Date,
free of restrictions on transfer, other than restrictions set forth under
federal or state securities laws. All of the outstanding shares of Preferred
Stock have been duly and validly authorized and are
2
validly issued and outstanding, fully paid and nonassessable and were not issued
in violation of any preemptive rights. The shares of Common Stock issuable upon
conversion of the Preferred Stock have been duly and validly authorized and
reserved for issuance upon such conversion and, upon conversion of the Preferred
Stock, the shares of Common Stock issuable upon such conversion will be validly
issued and outstanding, fully paid and nonassessable and will not have been
issued in violation of or subject to any preemptive rights. All outstanding
warrants (the "Warrants") to purchase Common Stock of the Company have been duly
and validly authorized, executed and delivered by the Company and constitute
valid and binding obligations of the Company and the shares of Common Stock
issuable upon exercise of such Warrants have been duly and validly authorized
and reserved for issuance upon such exercise and, upon payment of the exercise
price thereof upon exercise of such warrants, such shares of Common Stock will
be validly issued and outstanding, fully paid and nonassessable and will not
have been issued in violation of or subject to any preemptive rights. Except as
described in or expressly contemplated by the Registration Statement and the
prospectus filed in connection with the Company's IPO (the Prospectus"), there
are no outstanding rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock or other
equity interests in the Company or any of its subsidiaries, or any contract,
commitment, agreement, understanding or arrangement of any kind relating to the
issuance of any capital stock of the Company or any such subsidiary, or any such
convertible or exchangeable securities or any such rights, warrants or options.
Except as described in the Registration Statement and Prospectus, the Company is
not a party to, and to the Company's best knowledge, immediately after the
Closing, there will be no agreement, restriction or encumbrance (such as a right
of first refusal, right of first offer, registration rights agreement,
stockholders' agreement or any similar agreement) with respect to the purchase,
sale or voting of any shares of capital stock of the Company (whether
outstanding or issuable upon conversion or exercise of outstanding securities).
3.4 NON-CONTRAVENTION. The Company is not in violation of its
Certificate of Incorporation or Bylaws or in default in the performance of any
material obligation, agreement or condition contained in any agreement,
instrument, franchise, license, permit, judgment, order or decree to which the
Company is a party or by which it or any of its properties or assets is bound.
The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby do not and will not (i) conflict with or
result in a breach of any of the material terms and provisions of, or constitute
a default (or an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company pursuant
to, any material agreement, instrument, franchise, license or permit to which
the Company is a party or by which any of its properties or assets may be bound,
which default would have a Material Adverse Effect or (ii) violate or conflict
with any material provision of applicable law or the Certificate of
Incorporation or Bylaws of the Company or any judgment, decree, order, statute,
rule or regulation of any court or any public, governmental or regulatory agency
or body having jurisdiction over the Company or any of its properties or assets,
which default would have a Material Adverse Effect. No consent, approval,
authorization, order, registration, qualification, license or permit of or with
any court or any public, governmental or regulatory body having jurisdiction
over the Company or any of its properties or assets is required for the
execution, delivery and performance of this Agreement or the consummation of the
transactions
3
contemplated hereby, except as may be required under federal and state
securities laws, which filings will be made on or before the deadline therefor.
3.5 FINANCIAL STATEMENTS. The financial statements, including the notes
thereto, and supporting schedules included in the Registration Statement and the
Prospectus present fairly the financial position of the Company as of the dates
indicated and the results of its operations and changes in cash flow for the
periods specified. Except as otherwise stated in the Registration Statement or
Prospectus, (i) said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis; (ii) the
supporting schedules included in the Registration Statement or the Prospectus
present fairly the information required to be stated therein; (iii) the pro
forma financial information included in the Registration Statement and the
Prospectus have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and the assumptions
used in the preparation thereof are, in the Company's opinion, reasonable and
(iv) the other financial and statistical information and data included in the
Registration Statement and the Prospectus is, in all material respects,
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
3.6 OWNERSHIP OF EQUITY. The Company does not own, directly or
indirectly, any stock, partnership interest or joint venture interest in, or any
security issued by, any other entity.
3.7 TITLE TO PROPERTIES AND ASSETS; LIENS, ETC. The Company has good
and marketable title to all personal property owned by it which is material to
the business of the Company, in each case free and clear of all liens,
encumberances and defects except such as are described in the Prospectus or such
as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the
Company. The Company does not own any real property. Any real property and
buildings held under lease by the Company are held by it under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such property
and buildings by the Company, in each case except as described in or
contemplated by the Prospectus.
3.8 PATENTS AND OTHER INTANGIBLE ASSETS. Except as described in the
Prospectus, the Company has sufficient interests in all trademarks, trade names,
inventions (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), patents,
copyrights, and other intellectual property reasonably necessary to conduct the
business now operated by it, and has not received any written notice of
infringement of or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the Company, would
individually or in the aggregate have a Material Adverse Effect.
3.9 LITIGATION, ETC. Except as described in the Prospectus, there is no
litigation or governmental proceedings to which the Company is a party or to
which any property of the Company is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company which, if determined
adversely to the Company, would individually or in the aggregate have a Material
Adverse Effect or which is required to be disclosed in the Registration
Statement and the Prospectus, and there are no statutes, regulations, contracts
or
4
other documents applicable to the Company that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
3.10 LABOR MATTERS. No labor dispute with the employees of the Company
exists or, to the knowledge of the Company, is imminent which would have,
individually or in the aggregate a Material Adverse Effect.
3.11 INVESTMENT COMPANY. The Company is not, and upon consummation of
the transactions contemplated hereby will not be, subject to registration as an
"investment company" under the Investment Company Act of 1940, as amended.
3.12 INSURANCE. The Company maintains insurance of the types and in the
amounts generally deemed customary in the business in which it is engaged and
the Company does not have any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a Material Adverse Effect.
3.13 OFFERING. Subject to the accuracy of the Purchaser's
representations in Section 4 hereof, the offer, sale and issuance of the Shares
to be issued in conformity with the terms of this Agreement constitute
transactions exempt from the registration requirements of Section 5 of the
Securities Act of 1933, as amended, and applicable state securities laws.
3.14 BROKERS AND FINDERS. The Company has not incurred, and will not
incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
any transaction contemplated hereby.
3.15 ENVIRONMENTAL LAWS. The Company (i) is in material compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to (A) the protection of human health and safety, and (B) the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"); (ii) has received all permits, licenses or
other approvals required of it under applicable Environmental Laws to conduct
its business and (iii) is in compliance with all terms and conditions of any
such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, individually or in the aggregate, have a
Material Adverse Effect. To the Company's knowledge, there are no material costs
or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for cleanup, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties) which would, individually or in the aggregate,
have a Material Adverse Effect.
3.16 ABSENCE OF CHANGES. Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
set forth in the Registration Statement and the Prospectus, there has been no
material adverse change or any development involving a prospective material
adverse change in the business, properties, operations, condition
5
(financial or other) or results of operations of the Company, whether or not
arising from transactions in the ordinary course of business, and since the date
of the latest balance sheet presented in the Registration Statement and the
Prospectus, the Company has not incurred or undertaken any liabilities or
obligations, direct or contingent, whether or not arising from transactions in
the ordinary course of business, which are material to the Company, except for
liabilities or obligations that are reflected in the Registration Statement and
the Prospectus.
3.17 FURTHER ASSURANCES. The Company agrees and covenants that at any
time and from time to time it will promptly execute and deliver to the Purchaser
such further instruments and documents and take such further action as the
Purchaser may reasonably require in order to carry out the full intent and
purpose of this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company as of the
date hereof as follows:
4.1 EXPERIENCE. It is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own interests.
4.2 ABILITY TO BEAR ECONOMIC RISK. The Purchaser acknowledges that
investment in the Shares involves a high degree of risk, and represents that it
is able, without materially impairing its financial condition, to hold the
Shares for an indefinite period of time and to suffer a complete loss of its
investment.
4.3 INVESTMENT. It is acquiring the Shares for investment for its own
account, not as a nominee or agent, and not with the view to, or for resale in
connection with, any distribution thereof. It understands that the Shares have
not been, and will not be when issued, sold or transferred, registered under the
Securities Act and that the Shares will be issued by reason of a specific
exemption from the registration provisions of the Securities Act, the
availability of which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Purchaser's representations as
expressed herein. Purchaser was not formed solely for the purpose of acquiring
the Shares.
4.4 RULE 144. It acknowledges that the Shares must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from such registration is available. It acknowledges and understands that the
provisions of Rule 144 promulgated under the Securities Act which permit limited
resale of shares purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things, the existence of a public
market for the Shares, the availability of certain current public information
about-the Company, the resale occurring not less than one year after a party has
purchased and paid for the security to be sold, the sale being effected through
a "broker's transaction" or in transactions directly with a "market maker" and
the number of shares being sold during any three-month period not exceeding
specified limitations, and it agrees to comply fully with such provisions as in
effect from time to time.
4.5 ACCESS TO DATA. It has had an opportunity to discuss the Company's
business, management and financial affairs with the Company's management and the
opportunity to
6
review the Company's business plan. The Purchaser acknowledges that it has
received all the information it has requested from the Company and it considers
necessary or appropriate for deciding whether to acquire the Shares. The
Purchaser represents that it has had an opportunity to ask questions and receive
answers from the Company regarding the terms and conditions of the offering of
the Shares and to obtain any additional information necessary to verify the
accuracy of the information given the Purchaser.
4.6 AUTHORIZATION. All action (corporate or partnership, as
appropriate) on the part of the Purchaser necessary for the authorization,
execution, delivery and performance of this Agreement by Purchaser and the
performance of all of the Purchaser's obligations hereunder has been taken or
will be taken prior to the Closing. This Agreement when executed and delivered
by the Purchaser will constitute a valid and legally binding obligation of the
Purchaser, enforceable in accordance with its terms, and subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
4.7 COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance of and compliance with this Agreement, and the issuance of the
Shares have not resulted and will not result in any violation of, or conflict
with, or constitute a default under, any of the terms of any corporate or
partnership restriction or of any indenture, mortgage, deed of trust, pledge,
bank loan or credit agreement, corporate charter, bylaw or any instrument,
document or agreement by which the Purchaser or its properties may be bound or
affected, or result in the creation of any mortgage, pledge, lien, encumbrance
or charge upon any of the properties or assets of the Purchaser.
4.8 ACCREDITED INVESTOR. The Purchaser is an "accredited investor" as
such term is defined in Rule 501 under the Securities Act.
5. CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to sell and issue the Shares at the Closing
Date is, at the option of the Company, subject to the fulfillment as of the
Closing Date of the following conditions:
5.1 REPRESENTATIONS. The representations and warranties made by
Purchaser in Section 4 hereof shall be true and correct when made, and shall be
true and correct in all material respects as of the Closing Date.
5.2 COVENANTS. All covenants, agreements and conditions contained in
this Agreement to be performed by the Purchaser on or prior to the Closing Date
shall have been performed or complied with in all material respects.
5.3 PURCHASE PRICE. The Purchaser shall have tendered the Aggregate
Purchase Price.
6. CONDITION TO CLOSING OF PURCHASER.
The Purchaser's obligation to purchase the Shares at the Closing is
subject to the fulfillment as of the Closing Date of the following conditions:
7
6.1 REPRESENTATIONS. The representations and warranties made by the
Company in Section 3 hereof shall be true and correct when made, and shall be
true and correct in all material respects as of the Closing Date.
6.2 COVENANTS. All covenants, agreements and conditions contained in
this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all material respects.
6.3 LEGAL OPINION. Purchaser shall have received from Xxxxxxx, Xxxxxxx
& Xxxxxxxx LLP, counsel to the Company, an opinion letter substantially in the
form attached hereto as Exhibit A addressed to them, dated as of the date of the
Closing.
6.4 SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT. The
parties shall have entered into the Second Amended and Restated Investors'
Rights Agreement in substantially the form attached hereto as Exhibit B.
6.5 CLOSING OF IPO. The Company shall have closed the IPO.
6.6 UNDERWRITING AGREEMENT. The representations and warranties set
forth in the Underwriting Agreement (the "Underwriting Agreement") by and among
the Company and Bear Xxxxxxx & Co. Inc., Xxxxx Xxxxx Xxxxxx & Company, LLC and
Wit Capital Corporation shall be true and correct when made, and shall be true
and correct in all material respects as of the Closing Date. An executed copy of
the Underwriting Agreement will be provided to the Purchaser prior to the
Closing Date.
7. MISCELLANEOUS
7.1 GOVERNING LAW. This Agreement shall be governed and construed in
all respects by the laws of the State of Delaware, as applied to agreements
among Delaware residents, made and to be performed entirely within the State of
Delaware.
7.2 SURVIVAL. The representations, warranties, covenants and agreements
made herein shall survive the closing of the transactions contemplated hereby
for a period of twelve months from the date hereof. All statements as to factual
matters contained in any certificate or other instrument delivered by or on
behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
7.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto,
provided, however, that the right and obligation of the Purchaser to purchase
the Shares shall not be assignable without the consent of the Company.
7.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other documents
delivered pursuant hereto at the Closing constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein or therein; provided, however, that the accuracy
8
of the representations and warranties set forth in the Underwriting Agreement
shall be a condition to Purchaser's obligation to proceed to Closing. Except as
expressly provided herein, neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written instrument
signed by the party against whom enforcement of any such amendment, waiver,
discharge or termination is sought.
7.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to the Purchaser, at the Purchaser's address set forth on the
signature page hereto, or at such other address as the Purchaser shall have
furnished to the Company in writing, or (b) if to the Company, one copy to its
address set forth on the signature page of this Agreement and addressed to the
attention of the President, or at such other address as the Company shall have
furnished to the Purchaser. Notices may also be sent by telecopier, with a
confirmation copy by certified or registered mail.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or 72
hours after the same has been deposited in a regularly maintained receptacle for
the deposit of the United States mail, addressed and mailed as aforesaid, or
upon electronic confirmation of receipt if sent by telecopier.
7.6 DELAYS OR OMISSIONS. Except as expressly provided herein, no delay
or omission to exercise any right, power or remedy accruing to any holder of any
Shares, upon any breach or default of the Company under this Agreement, shall
impair any such right, power or remedy of such holder nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or
waiver of or acquiescence in any similar breach or default thereafter occurring;
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any holder of any
breach or default under this Agreement, or any waiver on the part of any holder
of any provisions or conditions of this Agreement, must be in writing and be
executed by the party to be bound thereby, and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any holder, shall be cumulative and
not alternative.
7.7 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be enforceable against the party actually executing such
counterpart(s), and all of which together shall constitute one instrument.
7.8 SEVERABILITY. In the event that any provisions of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provisions; provided, that no such severability shall be effective
if it materially changes the economic benefit of this Agreement to any party.
7.9 TITLE AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
9
7.10 BEST OF KNOWLEDGE; KNOWLEDGE. Information shall be deemed to be
known to the "best of knowledge" or to the "knowledge" of a party if that
information was actually known by an executive officer of such party.
7.11 FURTHER ASSURANCES AND COOPERATION. From and after the Effective
Date, the parties agree to use their commercially reasonable efforts to satisfy
the Closing Conditions set forth in Sections 5 and 6 above.
10
IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement as of the date first written above.
COMPANY:
XXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: CEO
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
Fax: (000) 000-0000
PURCHASER:
COMCAST INTERACTIVE INVESTMENTS, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: VP
Address: c/o Comcast Interactive
Capital Group, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX
00000-0000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
11
