EXHIBIT 8
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("AGREEMENT") is made as of December 23,
1999 between Xxxx Xxxxx' idealab!, a California corporation ("BUYER"), and Xxxxx
Global Investments, Ltd., a limited company organized under the laws of the
Bahamas ("XXXXX"), Multi-Strategies Fund Ltd., a limited company organized under
the laws of the Bahamas ("MULTI-STRATEGIES CO."), Remington Investments
Strategies, L.P., a Delaware limited partnership ("REMINGTON"), and
Multi-Strategies Fund L.P., a Delaware limited partnership ("MULTI-STRATEGIES
L.P."). Each of Moore, Remington, Multi-Strategies Co. and Multi-Strategies L.P.
is "SELLER," and Moore, Remington, Multi-Strategies Co. and Multi-Strategies
L.P. are, collectively, "SELLERS."
RECITALS
A. Sellers desire to sell, and Buyer desires to purchase, 2,100,000
shares (together with all contractual rights of Sellers in such shares, the
"SHARES") of common stock, $.0001 par value per share, of XxXx.xxx, Inc., a
Delaware corporation (the "COMPANY"), for the consideration and on the terms set
forth in this Agreement.
B. Immediately following such purchase of the Shares, Buyer intends to
sell, and Sellers intend to purchase, 1,743,000 shares of Series D Preferred
Stock, no par value, of Buyer ("SERIES D PREFERRED STOCK") for $100 per share.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. SALE OF SHARES; CLOSING
1.1 SALE OF SHARES
Subject to the terms and conditions of this Agreement, at the Closing,
Sellers will sell and transfer the Shares to Buyer, and Buyer will purchase the
Shares from Sellers, in exchange for Buyer paying to Sellers $174,300,000 (the
"PURCHASE CONSIDERATION").
1.2 CLOSING
The purchase and sale provided for in this Agreement will take place
(the "CLOSING") at the offices of Xxxxxx & Xxxxxxx, at 000 Xxxx Xxxxx Xxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx, 00000, at 7:00 a.m. (local time) on the date that is
two business days following the termination of the applicable waiting period
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 or any successor
law, and regulations and rules issued pursuant to that Act or any successor law
(the "HSR ACT"), or at such other time and place as the parties may agree (the
"CLOSING DATE"). Subject to the provisions of Section 7, failure to consummate
the purchase and sale provided for in this Agreement on the date and time and at
the place determined pursuant to this Section 1.2 will not result in the
termination of this Agreement and will not relieve any party of any obligation
under this Agreement.
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1.3 CLOSING OBLIGATIONS
At the Closing:
(a) Each Seller will deliver to Buyer:
(i) the certificates representing the Shares owned by such
Seller, duly endorsed (or accompanied by duly executed stock powers)
for transfer to Buyer; and
(ii) a certificate executed by Seller representing and warranting
to Buyer that each of such Seller's representations and warranties in
this Agreement was accurate in all respects as of the date of this
Agreement and is accurate in all respects as of the Closing Date as if
made on the Closing Date.
(b) Buyer will deliver to each Seller a certificate executed by Buyer
to the effect that, except as otherwise stated in such certificate, each of
Buyer's representations and warranties in this Agreement was accurate in
all respects as of the date of this Agreement and is accurate in all
respects as of the Closing Date as if made on the Closing Date.
(c) In lieu of Buyer delivering the Purchase Consideration to Sellers,
and Sellers receiving such consideration, the Purchase Consideration will
be applied to Sellers' purchase of 1,743,000 shares of Series D Preferred
Stock for $100 per share pursuant to (i) a Series D Preferred Stock
Purchase Agreement, dated as of the Closing Date (the "SERIES D PURCHASE
AGREEMENT") and (ii) an Amended and Restated Investor Rights Agreement,
dated as of the Closing Date (the "INVESTOR RIGHTS AGREEMENT," and together
with the Series D Purchase Agreement, the "INVESTMENT AGREEMENTS"), which
the parties will enter into on the Closing Date substantially in the forms
attached hereto as EXHIBITS A AND B, respectively.
2. REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller represents and warrants to Buyer for itself only as
follows:
2.1 ORGANIZATION AND GOOD STANDING
Xxxxx is a limited company duly organized, validly existing, and in
good standing under the laws of the Bahamas. Multi-Strategies Co. is a limited
company duly organized, validly existing, and in good standing under the laws of
the Bahamas. Remington is a limited partnership duly organized, validly existing
and in good standing under the laws of the state of Delaware. Multi-Strategies
L.P. is a limited partnership duly organized, validly existing and in good
standing under the laws of the state of Delaware. Each of Xxxxx and
Multi-Strategies Co. has requisite corporate power and authority, and each of
Remington and Multi-Strategies L.P. has requisite partnership power and
authority, to carry on its respective businesses as presently conducted and as
proposed to be conducted. Each Seller is duly qualified to transact business and
is in good standing in each jurisdiction in which the failure so to qualify
would
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have a material adverse effect on its business, assets, financial condition,
results of operations or properties.
2.2 CORPORATE POWER; PARTNERSHIP POWER
Each of Xxxxx and Multi-Strategies Co. has all requisite legal and
corporate power and authority, and each of Remington and Multi-Strategies L.P.
has all requisite legal and partnership power and authority, to execute and
deliver this Agreement and to perform its respective obligations under this
Agreement.
2.3 AUTHORIZATION
All corporate action on the part of each of Xxxxx and Multi-Strategies
Co., their respective officers, directors and shareholders, and all partnership
action on the part of each of Remington and Multi-Strategies L.P, their
respective partners and officers, necessary for the authorization, execution,
delivery and performance of this Agreement by each Seller and the performance of
each Seller's obligations under this Agreement has been taken. Neither the
execution, delivery or performance of this Agreement by Sellers nor the
consummation or performance of any or all of the transactions contemplated by
this Agreement, including, without limitation, the sale of the Shares by Sellers
to Buyer, the performance by Buyer and Sellers of their respective covenants and
obligations under this Agreement (including entering into the Investment
Agreements), and Buyer's acquisition and ownership of the Shares (the
"CONTEMPLATED TRANSACTIONS"), by Sellers will give any individual, corporation
(including any non-profit corporation), general or limited partnership, limited
liability company, joint venture, estate, trust, association, organization,
labor union, or other entity or governmental body ("PERSON") the right to
prevent, delay, or otherwise interfere with any of the Contemplated Transactions
pursuant to: (i) any provision of any Seller's articles of incorporation,
bylaws, charter, limited partnership agreement or similar document adopted or
filed in connection with the creation, formation, or organization of any Seller,
or any amendment to any of the foregoing ("SELLER'S ORGANIZATIONAL DOCUMENTS");
(ii) any resolution adopted by the board of directors or the stockholders of
either Xxxxx or Multi-Strategies Co. or by the general partners of either
Remington or Multi-Strategies L.P.; (iii) any federal, state, local, municipal,
foreign, international, multinational, or other administrative order,
constitution, law, ordinance, principle of common law, regulation, statute or
treaty (except for compliance with the HSR Act) ("LEGAL REQUIREMENT") or any
award, decision, injunction, judgment, order, ruling, subpoena, or verdict
entered, issued, made, or rendered by any court, administrative agency, or other
governmental body or by any arbitrator ("ORDER") to which any Seller may be
subject; or (iv) any contract to which any Seller is a party or by which any
Seller may be bound. Each Seller is not and will not be required to obtain any
consent from any Person in connection with the execution, delivery and
performance of this Agreement.
2.4 COMPLIANCE WITH OTHER INSTRUMENTS
The execution, delivery and performance of and compliance with this
Agreement will not result in any violation of, or conflict with, or constitute,
with or without the passage of time and the giving of notice, a default under,
(i) Xxxxx'x articles of incorporation, as amended,
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or bylaws, as amended, (ii) Multi-Strategies Co.'s articles of incorporation, as
amended, or bylaws, as amended, (iii) Remington's limited partnership agreement,
as amended, (iv) Multi-Strategies L.P.'s limited partnership agreement, as
amended, or (v) any of any Seller's agreements nor result in the creation of,
any mortgage, pledge, lien, encumbrance or charge upon the Shares.
2.5 OWNERSHIP
Each Seller is and will be on the Closing Date the record and
beneficial owner and holder of its Shares, free and clear of all charges,
claims, community property interests, conditions, equitable interests, liens,
options, pledges, security interests, rights of first refusal, or restrictions
of any kind, including any restriction on use, voting, transfer, receipt of
income, or exercise of any other attribute of ownership (except for restrictions
with respect to applicable securities laws) ("ENCUMBRANCES"). No legend or other
reference to any purported Encumbrance appears upon any certificate representing
the Shares. There are no contracts relating to the issuance, sale, or transfer
of the Shares.
2.6 BROKERS OR FINDERS
Each Seller has not incurred, and will not incur, directly or
indirectly, as a result of any action taken by such Seller, any obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or any other similar payments in connection with this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to each Seller as follows:
3.1 ORGANIZATION AND GOOD STANDING
Buyer is a corporation duly organized, validly existing, and in good
standing under the laws of the State of California. Buyer has requisite
corporate power and authority to own and operate its properties and assets, and
to carry on its business as presently conducted and as proposed to be conducted.
Buyer is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure so to qualify would have a material adverse
effect on its business, assets, financial condition, results of operations or
properties.
3.2 CORPORATE POWER
Buyer has all requisite legal and corporate power and authority to
execute and deliver this Agreement and to carry out and perform its obligations
under this Agreement.
3.3 CAPITALIZATION
The authorized capital stock of Buyer consists of 110,000,000 shares
of common stock, no par value ("COMMON STOCK"), and 38,000,000 shares of
Preferred Stock, no par value, of which 3,450,000 shares are designated "SERIES
A PREFERRED STOCK," 6,002,000 shares are
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designated "SERIES B PREFERRED STOCK," 6,000,000 shares are designated "SERIES C
PREFERRED STOCK," and 13,000,000 are designated "SERIES D PREFERRED STOCK."
Immediately prior to entering into this Agreement, there shall be outstanding
53,833,021 shares of Common Stock, 3,450,000 shares of Series A Preferred Stock,
5,717,135 shares of Series B Preferred Stock, 6,000,000 shares of Series C
Preferred Stock, and approximately 5,057,020 shares of Series D Preferred Stock
(which number of shares of Series D Preferred Stock may increase or decrease by
300,000). All of the outstanding shares of capital stock are duly authorized,
validly issued, fully paid and nonassessable, and were issued in compliance with
applicable federal and state securities laws. Buyer has reserved a sufficient
number of shares of Series D Preferred Stock for issuance hereunder, 3,450,000
shares of Common Stock for issuance upon conversion of the Series A Preferred
Stock, 6,002,000 shares of Common Stock for issuance upon conversion of the
Series B Preferred Stock, 6,000,000 shares of Common Stock for issuance upon
conversion of the Series C Preferred Stock, 13,000,000 shares of Common Stock
for issuance upon conversion of the Series D Preferred Stock, 15,000,000 shares
of Common Stock for issuance under Buyer's 1996 Stock Plan, 17,500,000 shares of
Common Stock for issuance under Buyer's 1999 Executive Stock Plan, and 9,000,000
shares of Common Stock for issuance under Buyer's 1999 Employee Stock Plan. Of
the 15,000,000 shares of Common Stock Buyer has reserved for issuance under
Buyer's 1996 Stock Plan, options to purchase 1,526,736 shares are outstanding
and 534,835 shares remain available for future grants. Of the 17,500,000 shares
of Common Stock Buyer has reserved for issuance under Buyer's 1999 Executive
Stock Plan, options to purchase 16,005,000 shares are outstanding and 1,495,000
shares remain available for future grants. Of the 9,000,000 shares of Common
Stock Buyer has reserved for issuance under Buyer's 1999 Employee Stock Plan,
options to purchase 1,951,165 shares are outstanding and 6,145,335 shares remain
available for future grants. Except for (i) conversion privileges of the Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and
Series D Preferred Stock and (ii) outstanding options (or options reserved for
future grant) to purchase shares of Common Stock granted to employees or
consultants pursuant to Buyer's stock plans or arrangements, there are no
outstanding options, warrants, rights (including conversion or preemptive
rights) or agreements for the purchase or acquisition from Buyer of any shares
of its capital stock.
3.4 AUTHORIZATION
All corporate action on the part of Buyer, its officers, directors and
shareholders necessary for the authorization, execution, delivery and
performance of the Agreement by Buyer, the authorization, sale, issuance and
delivery of the Purchase Consideration and the performance of Buyer's
obligations under the Agreement has been taken. This Agreement, when executed
and delivered by Buyer, shall constitute a valid and binding obligation of
Buyer, enforceable in accordance with its terms.
3.5 COMPLIANCE WITH OTHER INSTRUMENTS
Buyer is not in violation or default of any term of its articles of
incorporation, as amended, or bylaws, as amended, or any term or provision of
any material mortgage, indebtedness, indenture, contract, agreement, instrument,
judgment, order or decree, and to its knowledge is not in violation of any
statute, rule or regulation applicable to Buyer where such
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violation would have a material adverse effect on its business, assets,
financial condition, results of operations or properties. The execution,
delivery and performance of and compliance with this Agreement will not result
in any violation of, or conflict with, or constitute, with or without the
passage of time and the giving of notice, a default under, Buyer's articles of
incorporation, as amended, or bylaws, as amended, or any of its agreements nor
result in the creation of, any mortgage, pledge, lien, encumbrance or charge
upon any of the properties or assets of Buyer; and there is no such violation or
default which materially and adversely affects the business of Buyer or any of
its properties or assets.
3.6 BROKERS OR FINDERS
Buyer has not incurred, and will not incur, directly or indirectly, as
a result of any action taken by Buyer, any obligation or liability, contingent
or otherwise, for brokerage or finders' fees or agents' commissions or any other
similar payments in connection with this Agreement.
3.7 FIRPTA
Buyer is not, and has not been at any time during the five year period
ending on the date of this Agreement, a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Internal Revenue Code
of 1986, as amended.
4. COVENANTS OF BUYER AND SELLERS PRIOR TO CLOSING DATE
4.1 FILING FOR HSR APPROVAL
As promptly as practicable after the date of this Agreement, Buyer
will make all filings, and thereafter make any other required submissions, with
respect to this Agreement, required to be made by Buyer under the HSR Act and
any related governmental request thereunder. Each Seller shall cooperate with
Buyer in the preparation of such filing and furnish to Buyer any information
about such Seller required for Buyer to complete such filings.
4.2 NO NEGOTIATION
Until such time, if any, as this Agreement is terminated pursuant to
Section 7, each Seller will not, and will prevent any director, partner,
officer, employee, agent, consultant, advisor, or other representative of such
Seller, including legal counsel, accountants, and financial advisors
("REPRESENTATIVES"), directly or indirectly, from soliciting, initiating, or
encouraging any inquiries or proposals from, discussing or negotiating with,
providing any non-public information to, or considering the merits of any
unsolicited inquiries or proposals from, any Person (other than Buyer) relating
to any transaction involving the sale of the business or assets of the Company,
or any of the capital stock of the Company, or any merger, consolidation,
business combination, or similar transaction involving the Company.
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4.3 FURTHER ASSURANCES
(a) Subject to the terms and conditions herein, each of the parties
hereto agrees to use its reasonable best efforts to take, or cause to be
taken, all appropriate action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this
Agreement.
(b) In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, the
proper officers, directors and/or general partners of Buyer and Sellers
shall take all such necessary action.
4.4 NO AMENDMENT OR WAIVER OF ANTIDILUTION PROVISIONS
Buyer agrees not to amend or seek any waivers with respect to the
anti-dilution provisions in Article IV of Buyer's articles of incorporation
(other than amending the cross reference to Section C.6.d in the first sentence
of Section C.2 of Article IV) prior to the Closing.
5. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Shares and to take the other
actions required to be taken by Buyer at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by Buyer, in whole or in part):
5.1 SELLERS' PERFORMANCE
(a) All of the covenants and obligations that each Seller is required
to perform or to comply with pursuant to this Agreement at or prior to the
Closing (considered collectively), and each of these covenants and
obligations (considered individually), must have been duly performed and
complied with in all material respects.
(b) Each document required to be delivered pursuant to Section 1.3
must have been delivered, and each of the other covenants and obligations
in Section 4 must have been performed and complied with in all material
respects.
5.2 NO INJUNCTION
There must not be in effect any Legal Requirement or any injunction or
other Order that (a) prohibits the sale of the Shares by Sellers to Buyer, and
(b) has been adopted or issued, or has otherwise become effective, since the
date of this Agreement.
5.3 NO CLAIM REGARDING STOCK OWNERSHIP OR SALE PROCEEDS
There must not have been made or threatened by any Person any claim
asserting that such Person (a) is the holder or the beneficial owner of, or has
the right to acquire or to
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obtain beneficial ownership of, the Shares or (b) is entitled to all or any
portion of the Purchase Consideration payable to Sellers for the Shares.
5.4 NO PROHIBITION
Neither the consummation nor the performance of any of the
Contemplated Transactions will, directly or indirectly (with or without notice
or lapse of time), materially contravene, or conflict with, or result in a
material violation of, or cause Buyer or any Person affiliated with Buyer to
suffer any material adverse consequence under, (a) any applicable Legal
Requirement or Order, or (b) any Legal Requirement or Order that has been
published, introduced, or otherwise formally proposed by or before any
governmental body.
5.5 HSR ACT
Any applicable waiting period under the HSR Act relating to the
transactions contemplated by this Agreement shall have expired or been
terminated.
6. CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE
Each Seller's obligation to sell the Shares and to take the other
actions required to be taken by such Seller at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by such Seller, in whole or in part):
6.1 BUYER'S PERFORMANCE
(a) All of the covenants and obligations that Buyer is required to
perform or to comply with pursuant to this Agreement at or prior to the
Closing (considered collectively), and each of these covenants and
obligations (considered individually), must have been performed and
complied with in all material respects.
(b) Buyer must have delivered each of the documents required to be
delivered by Buyer pursuant to Section 1.3 and must have transferred the
Purchase Consideration pursuant to Section 1.3(b)(i).
6.2 NO INJUNCTION
There must not be in effect any Legal Requirement or any injunction or
other Order that (a) prohibits the sale of the Shares by Sellers to Buyer, and
(b) has been adopted or issued, or has otherwise become effective, since the
date of this Agreement.
6.3 HSR ACT
Any applicable waiting period under the HSR Act relating to the
transactions contemplated by this Agreement shall have expired or been
terminated.
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6.4 FINANCING
Buyer shall have issued at least $100.0 million of Series D Preferred
Stock to parties unrelated to Buyer.
7. TERMINATION
7.1 TERMINATION EVENTS
This Agreement may, by notice given prior to or at the Closing, be
terminated:
(a) by either Buyer or Sellers if a material breach of any provision
of this Agreement has been committed by the other party and such breach has
not been waived;
(b) by Buyer if any of the conditions in Section 5 has not been
satisfied as of the Closing Date or if satisfaction of such a condition is
or becomes impossible (other than through the failure of Buyer to comply
with its obligations under this Agreement) and Buyer has not waived such
condition on or before the Closing Date; or (ii) by Sellers, if any of the
conditions in Section 6 has not been satisfied as of the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than
through the failure of Sellers to comply with their obligations under this
Agreement) and Sellers have not waived such condition on or before the
Closing Date;
(c) by mutual consent of Buyer and Sellers; or
(d) by either Buyer or Sellers if the Closing has not occurred (other
than through the failure of any party seeking to terminate this Agreement
to comply fully with its obligations under this Agreement) on or before
February 28, 2000, or such later date as the parties may agree upon.
7.2 EFFECT OF TERMINATION
Each party's right of termination under Section 7.1 is in addition to
any other rights it may have under this Agreement or otherwise, and the exercise
of a right of termination will not be an election of remedies. If this Agreement
is terminated pursuant to Section 7.1, all further obligations of the parties
under this Agreement will terminate, except that the obligations in Section 8.1
will survive; PROVIDED, HOWEVER, that if this Agreement is terminated by a party
because of the breach of the Agreement by the other party or because one or more
of the conditions to the terminating party's obligations under this Agreement is
not satisfied as a result of the other party's failure to comply with its
obligations under this Agreement, the terminating party's right to pursue all
legal remedies will survive such termination unimpaired.
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8. GENERAL PROVISIONS
8.1 EXPENSES
Except as otherwise expressly provided in this Agreement, each party
to this Agreement will bear its respective expenses incurred in connection with
the preparation, execution, and performance of this Agreement and the
Contemplated Transactions, including all fees and expenses of agents,
representatives, counsel, and accountants. In the event of termination of this
Agreement, the obligation of each party to pay its own expenses will be subject
to any rights of such party arising from a breach of this Agreement by another
party.
8.2 PUBLIC ANNOUNCEMENTS
Except as required by law, any public announcement or similar
publicity with respect to this Agreement or the Contemplated Transactions will
be issued, if at all, at such time and in such manner as Buyer determines.
Unless consented to by Buyer in advance or required by law, prior to the
Closing, Sellers shall keep this Agreement strictly confidential and may not
make any disclosure of this Agreement to any Person.
8.3 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by telecopier
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
Sellers:
Xxxxx Global Investments, Ltd.,
Multi-Strategies Fund Ltd.,
Remington Investments Strategies, L.P., and
Multi-Strategies Fund L.P.
c/o Moore Capital Management, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
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Xxxxx Capital Management, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
Attention: Xxxxx X. Xxxx, Esq.
000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Buyer:
Xxxx Xxxxx' idealab!
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
8.4 JURISDICTION; SERVICE OF PROCESS
Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement may be brought against any of the
parties in the courts of the State of California, and each of the parties
consents to the jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.
8.5 WAIVER
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege
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or the exercise of any other right, power, or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right arising out of this Agreement
or the documents referred to in this Agreement can be discharged by one party,
in whole or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party; (b) no waiver that may be given by a party
will be applicable except in the specific instance for which it is given; and
(c) no notice to or demand on one party will be deemed to be a waiver of any
obligation of such party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
8.6 ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior agreements between the parties
with respect to its subject matter and constitutes (along with the documents
referred to in this Agreement) a complete and exclusive statement of the terms
of the agreement between the parties with respect to its subject matter. This
Agreement may not be amended except by a written agreement executed by the party
to be charged with the amendment.
8.7 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS
No party may assign any of its rights under this Agreement without the
prior consent of the other parties, which will not be unreasonably withheld,
except that Buyer may assign any of its rights under this Agreement to any
subsidiary of Buyer. Subject to the preceding sentence, this Agreement will
apply to, be binding in all respects upon, and inure to the benefit of the
successors and permitted assigns of the parties. Nothing expressed or referred
to in this Agreement will be construed to give any Person other than the parties
to this Agreement any legal or equitable right, remedy, or claim under or with
respect to this Agreement or any provision of this Agreement. This Agreement and
all of its provisions and conditions are for the sole and exclusive benefit of
the parties to this Agreement and their successors and assigns.
8.8 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
8.9 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation. All
references to "Section" or "Sections" refer to the corresponding Section or
Sections of this Agreement. All words used in this Agreement will be construed
to be of such gender or number as the circumstances require. Unless otherwise
expressly provided, the word "including" does not limit the preceding words or
terms.
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8.10 GOVERNING LAW
This Agreement will be governed by the laws of the State of California
without regard to conflicts of laws principles.
8.11 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
Buyer:
XXXX XXXXX' IDEALAB!
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Chairman of the Board and
President
Seller:
XXXXX GLOBAL INVESTMENTS, LTD.
By: Xxxxx Capital Management, Inc.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxxx
Its: Trading Advisor
Title: Director of Operations
Seller:
MULTI-STRATEGIES FUND LTD.
By: Xxxxx Capital Management, Inc.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxxx
Its: Trading Advisor
Title: Director of Operations
S-1
Seller:
REMINGTON INVESTMENTS STRATEGIES, L.P.
By: Xxxxx Capital Advisors, L.L.C.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxxx
Its: General Partner
Title: Director of Operations
Seller:
MULTI-STRATEGIES FUND L.P.
By: Xxxxx Capital Advisors, L.L.C.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxxx
Its: General Partner
Title: Director of Operations
S-2
EXHIBIT A
XXXX XXXXX' IDEALAB!
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
[intentionally omitted]
EXHIBIT B
XXXX XXXXX' IDEALAB!
INVESTOR RIGHTS AGREEMENT
[intentionally omitted]
