EXHIBIT 10.15
NETSELECT, INC.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of April 9, 1999 (the "Agreement"),
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is entered into between NetSelect, Inc., a Delaware corporation (the "Company"),
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and each of those persons and entities, severally and not jointly, whose names
are set forth on the Schedule of Purchasers attached hereto as Exhibit A (which
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persons and entities are hereinafter collectively referred to as "Purchasers"
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and each individually as a "Purchaser"). Capitalized terms used in this
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Agreement but not otherwise defined shall have the meanings given to them in
Section 6 hereof.
WHEREAS, Purchasers wish to purchase from the Company, and the Company
wishes to sell to Purchasers, up to an aggregate of Three Hundred and Forty
Thousand Nine Hundred and Fifty Five (340,955) shares of a new series of
preferred stock, $.001 par value per share, of the Company, to be designated
"Series G Preferred Stock" (the "Series G Preferred Stock" or the "Purchased
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Shares"), such Series G Preferred Stock to have the rights, preferences,
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privileges, and restrictions as set forth in the Amended and Restated
Certificate of Incorporation substantially in the form attached as Exhibit B
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hereto (the "Restated Certificate"); and
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WHEREAS, Purchasers and the Company desire to provide for such purchase and
sale and to establish various rights and obligations in connection therewith.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein set forth, the parties hereto agree as follows:
1. Agreement to Purchase and Sell Stock; Closing.
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1.1 Agreement to Purchase and Sell Stock. The Company agrees to sell
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to each Purchaser at the Closing, and each Purchaser agrees, severally and not
jointly, to purchase from the Company at the Closing, the Purchased Shares at a
purchase price per share as set forth beside such Purchaser's name on Exhibit A.
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1.2 Closing. The purchase and sale of the Purchased Shares will take
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place at the offices of Fenwick & West LLP, Two Palo Alto Square, Palo Alto,
California, at 10:00 a.m. Pacific Time, on April 9, 1999 or at such other time
and place as the Company and Purchasers mutually agree upon (which time and
place are referred to in this Agreement as the "Closing"). At the Closing, the
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Company will deliver to each Purchaser certificates representing the number of
shares of Series G Preferred Stock that such Purchaser has agreed to purchase
hereunder as shown on Exhibit A against delivery to the Company by such
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Purchaser of the full purchase price of such Purchased Shares, paid by wire
transfer of funds to the Company.
2. Representations and Warranties of the Company. Except as set forth on
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the Disclosure Schedule separately delivered to the Purchasers, the Company
represents and warrants as of the Closing Date as follows:
2.1 Organization and Qualification. Each of the Company and its
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Subsidiaries is duly organized and existing in good standing under the laws of
the jurisdiction in which it is
organized and has the power to own its property and to carry on its business as
now being conducted. Each of the Company and its Subsidiaries is qualified to
transact business and is in good standing in each jurisdiction in which the
failure to so qualify would have a Material Adverse Effect on the Company.
2.2 Due Authorization. The execution and delivery of this Agreement
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and the Stockholders' Agreement Amendment by the Company, the issuance and sale
of the Purchased Shares by the Company and compliance by the Company with all
the provisions of this Agreement, the Stockholders' Agreement Amendment and the
Restated Certificate (i) are within the corporate power and authority of the
Company and (ii) have been duly authorized by all requisite corporate
proceedings on the part of the Company. This Agreement and the Stockholders'
Agreement Amendment have been duly executed and delivered by the Company and
constitute valid and binding agreements of the Company, enforceable against the
Company in accordance with their terms, except that (i) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought. The Company has furnished
to each Purchaser true and correct copies of the Certificates of Incorporation
and By-Laws of the Company and RealSelect, Inc. ("RealSelect"), in each case as
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in effect on the date of this Agreement.
2.3 Subsidiaries. Schedule 2.3 sets forth for each Subsidiary of the
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Company (i) its name and jurisdiction of organization, (ii) the number of shares
of authorized capital stock of each class of its capital stock, and (iii) the
number of issued and outstanding shares of each class of its capital stock, the
names of the holders thereof, and the number of shares held by each holder (or
if such Subsidiary is not a corporation, the equity structure of such Subsidiary
and a list of its owners and their relative interests therein). All of the
issued and outstanding shares of capital stock or ownership interests of each
Subsidiary have been duly authorized and are validly issued, fully paid, and
nonassessable. Neither of the Company nor any of its Subsidiaries control,
directly or indirectly, or has any direct or indirect equity participation in,
any corporation, partnership, trust or other business association which is not a
Subsidiary of the Company.
2.4 Financial Statements; Undisclosed Liabilities; Changes.
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(a) The Company has delivered to each Purchaser true and
complete copies of its unaudited consolidated balance sheet of the Company dated
December 31, 1998 and its unaudited statement of operations and its unaudited
statement of cash flows for its fiscal year ended December 31, 1998 (all such
financial statements being collectively referred to herein as the "Financial
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Statements"). The Financial Statements have been prepared in accordance with
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generally accepted accounting principles consistently followed (except as
indicated in the notes thereto and, subject to normal year-end adjustments, none
of which are expected to be material in amount) throughout the periods involved
and fairly present the financial condition, results of operations and cash flows
of the Company and its Subsidiaries as of their respective dates.
(b) Except as set forth in the Financial Statements, to the
Company's knowledge, neither the Company nor any of its Subsidiaries has any
material liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to
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December 31, 1998, and (ii) obligations under contracts and commitments incurred
in the ordinary course of business and not required under generally accepted
accounting principles to be reflected in the Financial Statements, which in both
cases individually or in the aggregate are not material to the financial
condition or operating results of the Company and its Subsidiaries taken as a
whole.
(c) Since December 31, 1998, the Company and its Subsidiaries
have operated their respective businesses only in the ordinary course and, to
the knowledge of the Company, no event has occurred which has had or is
reasonably likely to have a Material Adverse Effect on the Company.
Without limiting the foregoing, since December 31, 1998 there has
not been:
(i) any damage, destruction or loss to any of the
material assets or properties of the Company or any of its Subsidiaries;
(ii) any declaration, setting aside or payment of any
dividend or distribution or capital return in respect of any shares of the
Company's capital stock or any redemption, purchase or other acquisition by the
Company or any of its Subsidiaries of any shares of the Company's capital stock,
except as contemplated by employee stock plans;
(iii) any sale, assignment, transfer, lease or other
disposition or agreement to sell, assign, transfer, lease or otherwise dispose
of any of the assets of the Company or any of its Subsidiaries outside the
normal course of business;
(iv) any acquisition (by merger, consolidation, or
acquisition of stock or assets) by the Company or any of its Subsidiaries of any
corporation, partnership or other business organization or division thereof;
(v) any incurrence by the Company or any of its
Subsidiaries of any indebtedness for borrowed money or any assumption, granting,
guarantee or endorsement, or other accommodation arrangement making the Company
or any of its Subsidiaries responsible for the indebtedness for borrowed money
of any person or entity (other than another Subsidiary);
(vi) any material change in any method of accounting or
accounting practice used by the Company or any of its Subsidiaries, other than
such changes required by generally accepted accounting principles;
(vii) (A) any employment, deferred compensation,
severance or similar agreement entered into or amended by the Company or any of
its Subsidiaries, (B) increase in the compensation payable or to become payable
by it to any of its directors or officers, or (C) any increase in the coverage
or benefits available under any severance pay, termination pay, vacation pay,
company awards, salary continuation or disability, sick leave, deferred
compensation, bonus or other incentive compensation, insurance, pension or other
employee benefit plan, payment or arrangement made to, for or with such
directors, officers, employees, agents or representatives, other than, in the
case of (B) and (C) above, normal increases in the ordinary course of business
consistent with past practice and that in the aggregate have not resulted in a
material increase in the benefits or compensation expense of the Company or any
of its Subsidiaries;
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(viii) any writing down, in accordance with generally
accepted accounting principles and consistent with past practice, of the value
of any material accounts receivable or any revaluation by the Company or any of
its Subsidiaries of any of its material assets or any cancellation or writing
off as worthless and uncollectible of any debt, note or account receivable by
the Company or any of its Subsidiaries, excluding write-offs and writedowns in
the aggregate of less than $100,000;
(ix) any material transaction with a Related Party
(other than compensation for services rendered in the ordinary course of
business); or
(x) any agreement to take any actions specified in this
Section 2.4(c), except for this Agreement and the transactions contemplated
hereby.
2.5 Litigation. There is no action, suit, investigation or proceeding
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pending or, to the knowledge of the Company, threatened against the Company or
any of its Subsidiaries or any of their respective properties or assets by or
before any court, arbitrator or Governmental Authority.
2.6 Conflicting Agreements and Charter Provisions. Neither the
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Company nor any of its Subsidiaries is a party to any organizational documents
or contract or agreement or subject to any organizational documents or judgment
or decree which is reasonably likely to have a Material Adverse Effect on the
Company. None of (i) the execution and delivery of this Agreement, the
Stockholders' Agreement Amendment and the issuance of Purchased Shares and (ii)
the fulfillment of and compliance with the terms and provisions hereof and
thereof and of the Purchased Shares shall conflict with or result in a breach
of, or require a consent, approval or other action under, the terms, conditions
or provisions of, or give rise to a right of termination under, or constitute a
default under, or result in any violation of, the organizational documents of
the Company or any Subsidiary or any mortgage, agreement, instrument, order,
judgment, decree, statute, law, rule or regulation to which the Company or any
Subsidiary or any of their respective properties is subject except those which
have been obtained before the Closing. Neither the Company nor any of its
Subsidiaries (i) is in default under any outstanding indenture or other debt
instrument or with respect to the payment of principal of or interest on any
outstanding obligation for borrowed money, or (ii) is in material default under
any of their respective material contracts or agreements, or under any
instrument by which the Company or any of its Subsidiaries is bound (including
those listed in the Disclosure Schedule).
2.7 Capitalization. (a) As of the date of this Agreement prior to the
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issuance of the Purchased Shares, the authorized capital stock of the Company
consists of: (i) 90,000,000 shares of Common Stock, par value $0.001 per share
(the "Common Stock"), of which 8,479,580 shares are issued and outstanding; and
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(ii) 10,000,000 shares of Preferred Stock, par value $0.001 per share, of which
1,378,000 shares have been designated and issued as Series A Preferred Stock
(the "Series A Preferred Stock"), 190,336 shares have been designated and issued
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as Series B Preferred Stock (the "Series B Preferred Stock"), 614,374 shares
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have been designated and issued as Series C Preferred Stock (the "Series C
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Preferred Stock"), 681,201 shares have been designated and issued as Series D
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Preferred Stock (the "Series D Preferred Stock"), 325,000 shares have been
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designated and issued as Series E Preferred Stock (the "Series E Preferred
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Stock"), 2,100,000 shares have been designated as Series F Preferred Stock, of
which 1,771,149 shares of Series F Preferred Stock have been issued (the "Series
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F Preferred Stock") and 340,955 shares have been designated as Series G
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Preferred Stock,
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none of which have been issued (the "Series G Preferred Stock" and together with
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the Series A Preferred Stock, the Series B Preferred Stock, the Series C
Preferred Stock, Series D Preferred Stock, the Series E Preferred Stock and the
Series F Preferred Stock, the "Preferred Stock"). All shares of Preferred Stock
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that have been issued are still outstanding. Except as set forth on the
Disclosure Schedule or in the NetSelect Stockholders' Agreement, there are no
outstanding options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into, shares of any class of capital stock of the Company or any
Subsidiary, or contracts, commitments, understandings or arrangements by which
the Company or any Subsidiary is or may become bound relating to the issuance or
transfer of any shares of capital stock or options, warrants or rights to
purchase or acquire any shares of capital stock of the Company or relating to
the voting of any shares of capital stock of the Company or a Subsidiary. The
Disclosure Schedule sets forth the names of the holders of securities of the
Company, the numbers of such securities held by such holders, the expiration
dates of such securities, their vesting schedules (if any) and their exercise
price (if any). Except for rights of first refusal held by the Company to
purchase shares of its stock issued under the Company's 1996 Stock Incentive
Plan, no shares of the Company's outstanding capital stock, or stock issuable
upon exercise or exchange of any outstanding options, warrants or rights, or
other stock issuable by the Company, are subject to any preemptive rights,
rights of first refusal or other rights to purchase such stock (whether in favor
of the Company or any other person), pursuant to any agreement or commitment of
the Company. The only registration rights granted by the Company are contained
in the NetSelect Stockholders' Agreement.
2.8 Status of Purchased Shares. The Purchased Shares have been duly
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authorized by all necessary corporate action on the part of the Company and,
upon payment therefor as provided in Section 1 hereof, the Purchased Shares
shall be, and the shares of Common Stock issuable upon conversion of the Series
G Preferred Stock, upon such conversion and issuance shall be validly issued and
outstanding, fully paid and nonassessable (the Purchased Shares and such shares
of Common Stock issuable upon conversion of the Series G Preferred Stock are
collectively referred to herein as the "Securities"). The shares of Series A
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Common Stock issuable upon conversion of the shares of Series G Preferred Stock
have been validly reserved for issuance.
2.9 Laws and Regulations. The Company and each of its Subsidiaries
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are in compliance in all material respects with all applicable federal, state,
local and foreign laws and regulations and have obtained all permits, licenses,
franchises, and similar documentation, including without limitation real estate
licenses, required or necessary for the conduct of the Real Estate Business.
There are no claims, notices, civil, criminal or administrative actions, suits,
hearings, investigations, inquiries or proceedings pending or, to the knowledge
of the Company, threatened against the Company or any of its Subsidiaries.
2.10 Title to Properties; Insurance. The Company owns its properties
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and assets free and clear of all mortgages, deeds of trust, liens, encumbrances,
security interests and claims except for statutory liens for the payment of
current taxes that are not yet delinquent and liens, encumbrances and security
interests which arise in the ordinary course of business and which do not affect
material properties and assets of the Company. With respect to the property and
assets it leases, the Company and each of its Subsidiaries is in compliance with
such leases and, to the best of the Company's knowledge, the Company and each of
its Subsidiaries holds valid leasehold interests in such assets free of any
liens, encumbrances, security interests or claims of any party other than the
lessors of such property and assets. Each of the Company and its Subsidiaries
maintains insurance
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with respect to their properties and business against such casualties and
contingencies, of such types (including, without limitation, errors and
omissions coverage), on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of similarly situated entities
engaged in the same or a similar business. The Company has obtained a policy of
directors' and officers' insurance in the amount of $2,000,000.
2.11 Governmental Consents, etc. The Company is not required to
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obtain any consent, approval or authorization of, or to make any declaration or
filing with, any Governmental Authority as a condition to or in connection with
the valid execution, delivery and performance of this Agreement and the
Stockholders' Agreement Amendment, the valid offer, issue, sale or delivery of
the Purchased Shares, or the performance by the Company of its obligations in
respect thereof, except for any filings required to effect any registration
pursuant to the NetSelect Stockholders' Agreement and any state or federal
securities filings.
2.12 Taxes. The Company and each of its Subsidiaries have filed or
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caused to be filed all tax returns which are required to be filed and have paid
or caused to be paid all taxes as shown on said returns and on all assessments
received by them to the extent that such taxes have become due, except taxes the
validity or amount of which is being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside. The
Company and its Subsidiaries have paid or caused to be paid, or have established
adequate reserves for, all federal income tax liabilities and state income tax
liabilities now applicable to the Company or any of its Subsidiaries for all
fiscal years which have not been examined and reported on by the taxing
authorities (or closed by applicable statutes).
2.13 ERISA. The Company does not have any Employee Pension Benefit
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Plan as defined in Section 3 of the Employee Retirement Income Security Act of
1974, as amended.
2.14 Patents and Trademarks. Set forth in Schedule 2.14 is a true and
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complete list of all patents, patent applications, trademarks, service marks,
trademark and service ▇▇▇▇ applications, trade names and copyrights presently
used by the Company or any Subsidiary or necessary for the conduct of the
business of the Company and its Subsidiaries as conducted and as proposed to be
conducted (the "Intellectual Property Rights"). The Company owns, or has the
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right to use under the agreements or upon the terms described in Schedule 2.14,
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all of the Intellectual Property Rights. To the knowledge of the Company, the
business conducted or proposed to be conducted by the Company and its
Subsidiaries does not infringe or violate any of the patents, trademarks,
service marks, trade names, copyrights, trade secrets or other proprietary
rights of any other person or entity, and neither the Company nor any Subsidiary
has received any charge, complaint, claim, demand or notice alleging any such
infringement or violation. To the Company's knowledge, no other Person has any
right to or interest in any inventions, improvements, discoveries or other
confidential information utilized by the Company or any Subsidiary in its
business.
2.15 Material Contracts and Obligations. Schedule 2.15 sets forth a
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list of the following agreements or commitments of any nature to which the
Company or any Subsidiary is a party or by which it is bound: (a) any agreement
relating to the Intellectual Property Rights having a value in excess of
$100,000, (b) all employment and consulting agreements which require future
annual cash payments in excess of $250,000, and all employee benefit, bonus,
pension, profit-
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sharing, stock option, securities purchase and similar plans and arrangements,
(c) all data content provider agreements, including, but not limited to, master
listings service agreements (and indication of whether each such agreement
offers the Company exclusive listing rights), (d) all agreements with National
Association of Realtors or Realtor Information Network, Inc., (e) all agreements
with third parties under which such third parties agree to direct Internet
traffic to the Internet site operated by RealSelect, (f) all agreements with
third parties under which such third parties agree to pay the Company or any
Subsidiary for furnishing additional information about such third parties to
visitors of the Internet site operated by RealSelect, (g) all agreements with
suppliers or vendors which require future payments in excess of $250,000 not
already covered by (a) through (f) above, (h) all agreements or commitments
which restrict the ability of the Company or any Subsidiary or Affiliate or
employee to engage in any business or line of business in any location, (i) all
agreements or commitments relating to Indebtedness or Guarantees of the Company
or any Subsidiary and (j) any other agreement or commitment which requires
future payments by or to the Company or any Subsidiary in excess of $250,000 or
which is otherwise material to the Company or any of its Subsidiaries. The
Company has delivered or made available to each Purchaser copies of all of the
foregoing agreements and commitments. All of such agreements and commitments are
valid, binding and in full force and effect, except that, with respect to
parties to such agreements and commitments other than the Company and its
Subsidiaries, this representation is made only to the knowledge of the Company.
2.16 Labor Matters. Neither the Company nor any of its Subsidiaries
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is a party to any collective bargaining agreement covering employees of the
Company or its Subsidiaries nor does any labor union or collective bargaining
agent represent any of the employees of the Company or its Subsidiaries. There
is no labor strike, slow-down or stoppage pending or, to the Company's
knowledge, threatened by the employees.
2.17 Books and Records. All the books, records and accounts of the
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Company and its Subsidiaries are in all material respects true and complete, are
maintained in accordance with good business practice and all laws applicable to
its business, and accurately present and reflect in all material respects all of
the transactions therein described. The Company has previously delivered to the
each Purchaser true and complete texts of all of the minutes relating to
meetings of the stockholders, the Board and committees of the Board of the
Company and each Subsidiary for the past two years.
2.18 Brokers. Neither the Company nor any Subsidiary has engaged any
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finder, broker or investment adviser, and has no obligation to pay any fees
relating thereto, in connection with the transactions contemplated hereby.
2.19 Holding Company Act and Investment Company Act. Neither the
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Company nor any Subsidiary is: (i) a "public utility company" or a "holding
company," or an "affiliate" or a "subsidiary company" of a "holding company," or
an "affiliate" of such a "subsidiary company," as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended, or (ii) a "public
utility," as defined in the Federal Power Act, as amended, or (iii) an
"investment company" or an "affiliated person" thereof or an "affiliated person"
of any such "affiliated person," as such terms are defined in the Investment
Company Act of 1940, as amended.
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2.20 Costs of "Year 2000" Modifications. The Company represents and
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warrants that its computer system and software are able to accurately process
date data, including but not limited to, calculating, comparing and sequencing
from, into and between the twentieth century (through year 1999), the year 2000
and the twenty-first century, including leap year calculations. To the knowledge
of the Company, it is not aware of any inability on the part of any service
provider to timely remedy its own deficiencies in respect of the year 2000
problem.
2.21 Related Party Transactions. Except as set forth in the
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Disclosure Schedule, no beneficial owner of 5% or more of the Company's or any
of its Subsidiaries' outstanding capital stock or officer or director of the
Company or any of its Subsidiaries or any spouse, parent, child or sibling of
any officer or director or any person or entity (other than the Company or a
Subsidiary) in which any such person or entity owns any beneficial interest
(collectively, "Related Parties") has any interest in: (i) any contract,
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arrangement or understanding with, or relating to, the business or operations
of, the Company or any of its Subsidiaries; (ii) any loan, arrangement,
understanding, agreement or contract for or relating to indebtedness of the
Company or any of its Subsidiaries; or (iii) any property (real, personal or
mixed), tangible or intangible, used in the business or operations of the
Company or any of its Subsidiaries; excluding any such contract, arrangement,
understanding or agreement constituting an employee compensation arrangement.
2.22 Real Property Holding Corporation Status. Since its inception
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the Company has not been a "United States real property holding corporation", as
defined in Section 897(c)(2) of the U.S. Internal Revenue Code of 1986, as
amended, and in Section 1.897-2(b) of the Treasury Regulations issued
thereunder.
2.23 Accuracy of Information. None of the representations and
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warranties of the Company contained herein or in the Stockholders' Agreement
Amendment contains any material misstatement of fact or omits any material fact
required to be stated herein or therein or necessary to make the statements
herein and therein not misleading. The information (other than projections)
which has been furnished in writing by the Company to the Purchasers in
connection with the transactions contemplated hereby, did not, in the aggregate
and to the knowledge of the Company, as of the date such information was
furnished, contain any material misstatement of fact, or omit any material fact
required to be stated therein or necessary to make the statements therein not
misleading. The projections delivered to certain of the Purchasers in March of
1999 were prepared by management of the Company using its reasonable business
judgment and based upon the assumptions set forth in such projections, represent
as of the date of this Agreement the best estimate by management of the Company
as to the financial performance of the Company for the periods indicated, but do
not represent any guarantee or assurance of the future financial results of the
Company. The Company does not believe that such projections are inaccurate or
misleading in any material respect.
3. Representations and Warranties of Purchaser. Each Purchaser represents
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and warrants as of the date hereof and as of the Closing, individually and not
jointly, as follows:
3.1 Organization and Qualification. Such Purchaser is duly organized
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and existing in good standing under the laws of the jurisdiction of its
formation and has the power to own its property and to carry on its business as
now being conducted.
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3.2 Due Authorization. Such Purchaser has all necessary right, power
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and authority to enter into this Agreement and the Stockholders' Agreement
Amendment, and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the Stockholders' Agreement
Amendment by such Purchaser and the consummation by such Purchaser of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary action on behalf of such Purchaser. This Agreement and the
Stockholders' Agreement Amendment have been duly executed and delivered by such
Purchaser and constitute valid and binding agreements of such Purchaser
enforceable in accordance with their terms, except that (i) such enforcement may
be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights and (ii)
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
3.3 Governmental Consents, etc. Except as obtained or made, such
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Purchaser is not required to obtain any consent, approval or authorization of,
or to make any declaration or filing with, any Governmental Authority as a
condition to or in connection with the valid execution, delivery and performance
of this Agreement and the Stockholders' Agreement Amendment and the valid offer,
issue, sale or delivery of the Purchased Shares, or the performance by such
Purchaser of its obligations in respect thereof.
3.4 Conflicting Agreements and Other Matters. Neither the execution
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and delivery of this Agreement and the Stockholders' Agreement Amendment nor the
performance by such Purchaser of its obligations hereunder conflict with, result
in a breach of the terms, conditions or provisions of, constitute a default
under or require any consent, approval or other action by or any notice to or
filing with any court or administrative or governmental body pursuant to, the
organizational documents of such Purchaser or any mortgage, agreement,
instrument, order, judgment, decree, statute, law, rule or regulation to which
such Purchaser or any of its properties are subject.
3.5 Acquisition for Investment. Such Purchaser is acquiring the
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Securities for its own account for the purpose of investment and not with a view
to or for sale in connection with any distribution thereof, and such Purchaser
has no present intention or plan to effect any distribution thereof. Such
Purchaser acknowledges that the Securities have not been registered under the
Securities Act and may be sold or disposed of in the absence of such
registration only pursuant to an exemption from such registration.
3.6 Investment Experience. Such Purchaser understands that the
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purchase of the Purchased Shares involves substantial risk. Such Purchaser: (i)
has experience as an investor in securities of companies in the development
stage and acknowledges that such Purchaser is able to fend for itself, can bear
the economic risk of such Purchaser's investment in the Purchased Shares and has
such knowledge and experience in financial or business matters that such
Purchaser is capable of evaluating the merits and risks of this investment in
the Purchased Shares and protecting its own interests in connection with this
investment and/or (ii) has a preexisting personal or business relationship with
the Company and certain of its officers, directors or controlling persons of a
nature and duration that enables such Purchaser to be aware of the character,
business acumen and financial circumstance of such persons.
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3.7 Accredited Purchaser. Such Purchaser is an "accredited investor"
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within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act.
3.8 Brokers. Such Purchaser has not engaged any finder, broker or
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investment advisor, and has no obligation to pay any fees relating thereto, in
connection with the transaction contemplated hereby.
4. Certain Covenants.
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4.1 Compliance with Laws. The Company shall, and shall cause its
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Subsidiaries to, comply in all material respects with all applicable statutes,
rules, regulations and orders of all Governmental Authorities with respect to
the conduct of its business and the ownership of its properties, including,
without limitation, those relating to the environment and human health, equal
employment opportunity, employee safety, foreign corrupt practices and ERISA.
4.2 Limitation on Agreements. The Company shall not, and shall not
------------------------
permit any of its Subsidiaries to, enter into any agreement or any amendment,
modification, extension or supplement to any existing agreement, which
contractually prohibits the payment of dividends on the Series G Preferred Stock
in accordance with the Restated Certificate.
4.3 Preservation of Franchises and Existence. The Company shall, and
----------------------------------------
shall cause each of its Subsidiaries (so long as they are conducting any
business) to, maintain its corporate existence, and all material rights and
franchises, in full force and effect unless the Board determines that it is in
the best interest of the Company not to do so and such rights and franchises, as
the case may be, are not material to the business of the Company.
4.4 Insurance. The Company shall, and shall cause each of its
---------
Subsidiaries to, effective as of the Closing, maintain with insurers believed by
the Company to be responsible such insurance, in such amounts and of such types
as are customarily carried under similar circumstances by companies of similar
size and engaged in the same or a similar business or having similar properties
similarly situated and in any event not less than the amounts set forth on
Schedule 4.4.
------------
4.5 Lost, Stolen, Damaged and Destroyed Stock Certificates. Upon
------------------------------------------------------
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of any certificate for shares of Series G Preferred Stock, and in
the case of loss, theft or destruction, upon delivery of an indemnity or bond
satisfactory to the Company (which may include an undertaking by the Purchasers
so to indemnify the Company), or, in the case of mutilation, upon surrender and
cancellation thereof, the Company shall issue a new agreement or certificate of
like tenor for a number of shares of Series G Preferred Stock equal to the
number of shares of such stock represented by the lost, stolen, destroyed or
mutilated certificate.
4.6 Related Party Transactions. Except with the written consent of a
--------------------------
majority of the disinterested directors of the Board, the Company shall not,
directly or indirectly, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into, amend or terminate any material contract,
arrangement or transaction with a Related Party, other than compensation
arrangements in the ordinary course of business on arm's length terms.
5. Conditions to Obligations at Closing.
------------------------------------
10
5.1 Conditions to Purchasers' Obligations at Closing. The obligations
------------------------------------------------
of each Purchaser under Section 1 of this Agreement are subject to the
fulfillment or waiver, on or before the Closing, of each of the following
conditions, the waiver of which shall not be effective against any Purchaser who
does not consent to such waiver, which consent may be given by written, oral or
telephone communication to the Company, its counsel or to special counsel to the
Purchasers:
(a) Representations and Warranties True. Each of the
-----------------------------------
representations and warranties of the Company contained in Section 2 shall be
true and correct on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.
(b) Performance. The Company shall have performed and complied
-----------
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing and
shall have obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
(c) Restated Certificate Effective. The Restated Certificate
------------------------------
shall have been duly adopted by the Company by all necessary corporate action of
its Board of Directors and stockholders, and shall have been duly filed with and
accepted by the Secretary of State of the State of Delaware.
(d) Compliance Certificate. The Company shall have delivered
----------------------
to each Purchaser at the Closing a certificate signed on its behalf by its
President, Chief Executive Officer, or Chief Financial Officer certifying that
the conditions specified in Sections 5.1(a), 5.1(b) and 5.1(c) have been
fulfilled and stating that there shall have been no material adverse change in
the business, affairs, prospects, operations, properties, assets or condition of
the Company not previously disclosed to the Purchasers in writing.
(e) Securities Exemptions. The offer and sale of the Purchased
---------------------
Shares to the Purchasers pursuant to this Agreement shall be exempt from the
registration requirements of the Securities Act, the qualification requirements
of the California Corporate Securities Law of 1968, as amended (the "Law") and
---
the registration and/or qualification requirements of all other applicable state
securities laws.
(f) Proceedings and Documents. All corporate and other
-------------------------
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to each Purchaser and to the Purchasers' special counsel.
(g) No Material Change. There shall have been no material
------------------
adverse change in the business, affairs, prospects, operations, properties,
assets or condition of the Company since the date of this Agreement.
(h) Opinion of Company Counsel. Each Purchaser shall have
--------------------------
received an opinion from Fenwick & West, LLP, counsel for the Company, dated as
of the date of the Closing, in the form attached hereto as Exhibit D.
---------
11
(i) Stockholders' Agreement Amendment. The Amendment in the
---------------------------------
form attached to this Agreement as Exhibit E (the "Stockholders' Agreement
-----------------------
Amendment") to that certain Second Amended and Restated NetSelect Stockholders'
---------
Agreement in the form attached to this Agreement Amended and Restated NetSelect
Stockholders' Agreement in the form attached to this Agreement as Exhibit F (the
---------
"NetSelect Stockholders' Agreement") shall have been executed and delivered by
---------------------------------
NetSelect and the holders of at least two-thirds (2/3) of the Shares (as defined
therein) held by the parties thereto (other than the Purchasers and NetSelect).
(j) Executed Consent and Waiver. Holders of (i) at least two-
---------------------------
thirds (2/3) of the voting power of Shares held by the Stockholders (as such
terms are defined in the Stockholders' Agreement Amendment), (ii) at least a
majority of the shares of outstanding Preferred Stock (voting on an as-converted
basis) shall have executed and delivered to the Company a Consent and Waiver in
the form of Exhibit G hereto (the "Consent and Waiver").
--------- ------------------
5.2 Conditions to the Company's Obligations at Closing. The
--------------------------------------------------
obligations of the Company to each Purchaser under this Agreement are subject to
the fulfillment or waiver on or before the Closing of each of the following
conditions by such Purchaser:
(a) Representations and Warranties. The representations and
------------------------------
warranties of such Purchaser contained in Section 3 shall be true and correct on
the date of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
(b) Payment of Purchase Price. Each Purchaser shall have
-------------------------
delivered to the Company the purchase price specified for such Purchaser on
Exhibit A in accordance with the provisions of Section 2.
---------
(c) Restated Certificate Effective. The Restated Certificate
------------------------------
shall have been duly adopted by the Company by all necessary corporate action of
its Board of Directors and stockholders, and shall have been duly filed with and
accepted by the Secretary of State of the State of Delaware.
(d) Securities Exemptions. The offer and sale of the Purchased
---------------------
Shares to the Purchasers pursuant to this Agreement shall be exempt from the
registration requirements of the Securities Act, the qualification requirements
of the Law and the registration and/or qualification requirements of all other
applicable state securities laws.
(e) Proceedings and Documents. All corporate and other
-------------------------
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to the Company and to the Company's legal counsel.
(f) Stockholders' Agreement Amendment. The Stockholders'
---------------------------------
Agreement Amendment shall have been executed and delivered by the holders of at
least two-thirds (2/3) of the Shares (as defined therein) held by the parties
thereto (other than the Purchasers).
(g) Executed Consent and Waiver. Holders of (i) at least two-
---------------------------
thirds (2/3) of the voting power of Shares held by the Stockholders (as such
terms are defined in the Stockholders'
12
Agreement Amendment) shall have executed and delivered to the Company the
Consent and Waiver (other than the Purchasers).
6. Interpretation.
--------------
6.1 Definitions.
-----------
"Affiliate" and "Associate" shall have the respective meanings
--------- ---------
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act.
"Beneficial owner" has the meaning given to such term in Rule 13d-3
----------------
under the Exchange Act, and the terms "beneficially own" and "beneficial
ownership" shall have the correlative meanings.
"Board" means the Board of Directors of the Company.
-----
"Business Day" shall mean any day other than a Saturday, Sunday or a
------------
day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"Capitalized Lease" shall mean, with respect to any Person, any lease
-----------------
or any other agreement for the use of property which, in accordance with
generally accepted accounting principles, should be capitalized on the lessee's
or user's balance sheet.
"Capitalized Lease Obligation" of any Person shall mean and include,
----------------------------
as of any date as of which the amount thereof is to be determined, the amount of
the liability capitalized or disclosed (or which should be disclosed in
accordance with generally accepted accounting principles) in a balance sheet of
such Person in respect of a Capitalized Lease of such Person.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
----
"Commission" shall mean the Securities and Exchange Commission or any
----------
other federal agency then administering the Securities Act and other federal
securities laws.
"Company" shall have the meaning specified in the first paragraph of
-------
this Agreement.
"Consolidated" or "consolidated", when used with reference to any
------------ ------------
financial term in this Agreement (but not when used with respect to any tax
return or tax liability), shall mean the aggregate for two or more Persons of
the amounts signified by such term for all such Persons, with inter-company
items eliminated and, with respect to earnings, after eliminating the portion of
earnings properly attributable to minority interests, if any, in the capital
stock of any such Person or attributable to shares of preferred stock of any
such Person not owned by any other such Person.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at any time. Reference
to a particular section of the Exchange Act shall include reference to the
comparable section, if any, of any such successor federal statute.
13
"GAAP" shall mean generally accepted accounting principles in the
----
United States of America in effect from time to time.
"Governmental Authority" shall mean any federal, state, local or
----------------------
foreign court, administrative agency, commission or other governmental or
regulatory body, agency, instrumentality or authority or any department or
subdivision thereof.
"Group" shall have the meaning ascribed to such term in Rule 13d-5
-----
under the Exchange Act.
"Guarantee" by any Person shall mean (without duplication on a
---------
consolidated basis) all obligations (other than endorsements in the ordinary
course of business of negotiable instruments for deposit or collection) of any
Person guaranteeing, or in effect guaranteeing, any Indebtedness, dividend or
other obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, all obligations
incurred through an agreement, contingent or otherwise, by such Person: (i) to
purchase such Indebtedness or obligation or any property or assets constituting
security therefor, (ii) to advance or supply funds (x) for the purchase or
payment of such Indebtedness or obligation, (y) to maintain working capital or
other balance sheet condition or otherwise to advance or make available funds
for the purchase or payment of such Indebtedness or obligation, (iii) to lease
property or to purchase securities or other property or services primarily for
the purpose of assuring the owner of such Indebtedness or obligation of the
ability of the primary obligor to make payment of such Indebtedness or
obligation, or (iv) otherwise to assure the owner of the Indebtedness or
obligation of the primary obligor against loss in respect thereof. For the
purposes of any computations made under this Agreement, a Guarantee in respect
of any Indebtedness for borrowed money shall be deemed to be Indebtedness equal
to the principal amount of the Indebtedness for borrowed money which has been
guaranteed, and a Guarantee in respect of any other obligation or liability or
any dividend shall be deemed to be Indebtedness equal to the maximum aggregate
amount of such obligation, liability or dividend.
"Indebtedness" shall mean, with respect to any Person (without
------------
duplication on a consolidated basis), (i) all obligations of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (iii) all obligations of such Person
under conditional sale or other title retention agreements relating to property
purchased by such Person, (iv) all obligations of such Person issued or assumed
as the deferred purchase price of property or services (other than accounts
payable to suppliers and similar accrued liabilities incurred in the ordinary
course of business and paid in a manner consistent with industry practice), (v)
all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any lien or security interest on property owned or acquired by such Person
whether or not the obligations secured thereby have been assumed, (vi) all
Capitalized Lease Obligations of such person, (vii) all Guarantees of such
person, (viii) all obligations (including but not limited to reimbursement
obligations) relating to the issuance of letters of credit for the account of
such person, (ix) all obligations arising out of foreign exchange contracts, and
(x) all obligations arising out of interest rate and currency swap agreements,
cap, floor and collar agreements, interest rate insurance, currency spot and
forward contracts and other agreements or arrangements designed to provide
protection against fluctuations in interest or currency exchange rates.
14
"Material Adverse Effect" with respect to any Person shall mean any
-----------------------
event or events, taken singly or in the aggregate, (a) as a result of which such
Person and its Subsidiaries, taken as a whole, would be unable to continue to
operate their business in a manner consistent with the manner of operation of
such business as of the date of this Agreement or (b) which could reasonably be
expected to have a material adverse effect on the assets, liabilities, business,
results of operations, financial condition or prospects of such Person and its
Subsidiaries, taken as a whole.
"Person" shall mean any individual, firm, corporation, business trust,
------
partnership, limited liability company or other entity, and shall include any
successor (by merger or otherwise) of such entity.
"Real Estate Business" shall mean any business associated with real
--------------------
estate (residential and commercial) and classifieds and activities associated
therewith or incidental thereto, including but not limited to promotion (online,
T.V., radio, print, telecommunication), related information services,
advertising, financing information and services, marketing of products and
services to real estate and related professionals and companies, financing
transaction services, product and service transaction services, data mining and
other services generally performed by companies doing any of the foregoing.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
--------------
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Subsidiary" of any Person means any corporation or other entity of
----------
which a majority of the voting power or the voting equity securities or equity
interests is owned, directly or indirectly, by such Person or Subsidiary of such
Person.
6.2 Accounting Principles. The character or amount of any asset,
---------------------
liability, capital account or reserve and of any item of income or expense
required to be determined pursuant to this Agreement, and any consolidation or
other accounting computation required to be made pursuant to this Agreement, and
the construction of any definition in this Agreement containing a financial
term, shall be determined or made, as the case may be, in accordance with United
States generally accepted accounting principles, to the extent applicable,
unless such principles are inconsistent with the express requirements of this
Agreement.
7. Miscellaneous.
-------------
7.1 Severability. If any term, provision, covenant or restriction of
------------
this Agreement or any exhibit hereto is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement and such exhibits shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such which may be hereafter declared
invalid, void or unenforceable.
7.2 Specific Enforcement. Each of the parties hereto acknowledges and
--------------------
agrees that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly
15
agreed that the parties shall be entitled to injunctive or other equitable
relief to prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof, this being in addition to any
other remedy to which they may be entitled at law or equity.
7.3 Entire Agreement. This Agreement (including the Schedules and
----------------
documents set forth in the exhibits hereto) contains the entire understanding of
the parties with respect to the transactions contemplated hereby, and no other
agreements exist between the Company and any of the parties hereto with respect
to the subject matter of this transaction, except: (i) the NetSelect
Stockholders' Agreement (ii) the Stockholders' Agreement Amendment, (iii) the
NetSelect Stockholders Agreement dated as of the date hereof, (iv) the Closing
Documents (as such terms is defined in the legal opinion of Fenwick & West LLP
dated as of the date hereof), (v) the consents, waivers and approvals under
existing agreements with the Company, (vi) all of the Company's charter and
formation documents; and (vii) any and all agreements and documents entered into
or dated on or prior to the closing of the NetSelect Series F Preferred Stock
financing.
7.4 Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each party and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
7.5 Notices and other Communications. All notices, consents,
--------------------------------
requests, instructions, approvals, financial statements, proxy statements,
reports and other communications provided for herein shall be given in writing
and delivered personally, by facsimile (with a confirmation copy to be sent by
first class mail) or sent by nationally recognized overnight courier service,
to, in the case of a Purchaser, as set forth below such Purchaser's name on
Exhibit A hereto, and in the case of the Company, as set forth below:
---------
THE COMPANY:
NetSelect, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Fenwick & West, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq..
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any party may, from time to time, designate in a
written notice given in a like manner.
7.6 Amendments. The Company may take any action herein prohibited, or
----------
omit to perform any act required to be performed by it (including, without
limitation, under Article 4 of this
16
Agreement), retroactively or prospectively, if the Company shall obtain the
written consent or waiver of the registered holders of not less than 66 2/3% of
the outstanding shares of Purchased Shares (voting on an as-converted basis).
Any amendment to this Agreement shall require the written consent of (i) the
registered holders of not less than 66 2/3% of the outstanding shares of Series
G Preferred Stock and (ii) the Company. Any such actions or acts shall be
binding on all Purchasers; provided, however, that no amendment or waiver shall
discriminate against any Purchaser without the consent of such Purchaser and
this Section 7.6 may only be amended with the consent of all of the Purchasers.
7.7 Cooperation. Each of the parties hereto agrees to take, or cause
-----------
to be taken, all such further or other actions as shall reasonably be necessary
to make effective and consummate the transactions contemplated by this
Agreement.
7.8 Heirs, Successors and Assigns. Except as expressly provided
-----------------------------
otherwise in this Agreement, all covenants and agreements contained herein shall
bind and inure to the benefit of the parties hereto, their respective heirs,
successors and assigns, and to any transferee of any Securities. There are no
other intended third-party beneficiaries to this Agreement.
7.9 Expenses. The Company agrees to pay or reimburse each Purchaser
--------
for all reasonable fees and expenses of one outside legal counsel for the
Purchasers in connection with the Stockholders' Agreement Amendment and the
Restated Certificate and the consummation of all transactions contemplated
hereby and thereby through the Closing up to a maximum of $15,000.
7.10 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
issuance and delivery of the Purchased Shares, regardless of any investigation
made by or on behalf of any party.
7.11 Transfer of Securities. Each Purchaser understands and agrees
----------------------
that the Purchased Shares (and the shares of Common Stock issuable upon
conversion thereof) have not been registered under the Securities Act or the
securities laws of any state and that they may be sold or otherwise disposed of
only in one or more transactions registered under the Securities Act and, where
applicable, such laws or transactions as to which an exemption from the
registration requirements of the Securities Act and, where applicable, such laws
are available. Each Purchaser acknowledges that, except as provided in this
Agreement and the NetSelect Stockholders' Agreement, each Purchaser has no right
to require the Company to register any of such shares. Each Purchaser
understands and agrees that each certificate representing any of such shares
shall bear the following legends:
"THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
IS RESTRICTED BY A STOCK PURCHASE AGREEMENT AND A STOCKHOLDERS'
AGREEMENT DATED AS OF APRIL 9, 1999, COPIES OF WHICH ARE ON FILE AT
THE OFFICES OF THE CORPORATION."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE
17
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS OR AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF
SUCH ACT OR SUCH LAWS AS CONFIRMED BY AN OPINION IN FORM AND FROM
COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION."
The second legend set forth in this Section 7.11 shall be removed by
the Company from any certificate evidencing Securities upon delivery to the
Company of an opinion by counsel, reasonably satisfactory to the Company, that a
registration statement under the Securities Act is at that time in effect with
respect to the legended security or that such security can be freely transferred
in a public sale without such a registration statement being in effect and that
such transfer will not jeopardize the exemption or exemptions from registration
pursuant to which the Company issued the Securities. The Company shall waive the
requirement of such a legal opinion for customary transfers made pursuant to
Rule 144 of the Exchange Act.
7.12 Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of Delaware without giving
effect to conflict of laws principles. Each of the Parties hereby waives any
right it may have to a trial by jury in any litigation directly or indirectly
arising out of this Agreement. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of Delaware and of the United States of America, in each case
located in the State of Delaware, for any action, proceeding or investigation in
any court or before any governmental authority ("Litigation") arising out of or
----------
relating to this Agreement and the transactions contemplated hereby (and agrees
not to commence any Litigation relating thereto except in such courts), and
further agrees that service of any process, summons, notice or document by U.S.
registered mail to its respective address set forth in this Agreement shall be
effective service of process for any Litigation brought against it in any such
court. Each of the parties hereto hereby irrevocably and unconditionally waives
any objection to the laying of venue of any Litigation arising out of this
Agreement or the transactions contemplated hereby in the courts of the State of
Delaware or the United States of America, in each case located in the State of
Delaware, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such Litigation brought in any
such court has been brought in an inconvenient forum.
7.13 Term. Except as otherwise provided in this Agreement, this
----
Agreement shall terminate when none of the shares of Series G Preferred Stock
remain outstanding.
7.14 Publicity. Each of the parties hereto agrees that it shall (and
---------
it shall cause its Subsidiaries, if any, to) agree that it shall make no
statement regarding the transactions contemplated hereby which is inconsistent
with any press release agreed to by the parties hereto. Notwithstanding the
foregoing, each of the parties hereto may, in documents required to be filed by
it with any regulatory body or pursuant to any federal or state law (such as a
proxy statement), make such statements with respect to the transactions
contemplated hereby as each may be advised is legally necessary upon advice of
its counsel.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
"COMPANY":
NETSELECT, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer
19
COUNTERPART SIGNATURE PAGE TO
NETSELECT INC. STOCK PURCHASE AGREEMENT
DATED AS OF APRIL 9, 1999
"PURCHASERS": "PURCHASERS":
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: Amerindo Technology Growth Fund II
------------------------------- ------------------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- --------------------------------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- ----------------------------------------
Address: Address:
---------------------------- ---------------------------------------------
------------------------------------ -----------------------------------------------------
------------------------------------ -----------------------------------------------------
Facsimile: Facsimile:
-------------------------- -------------------------------------------
"PURCHASERS": "PURCHASERS":
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ Master Trust, Attorney in fact
------------------------------- ------------------------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- --------------------------------------------------
Printed Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- ----------------------------------------
Address: Address:
---------------------------- ---------------------------------------------
------------------------------------ -----------------------------------------------------
------------------------------------ -----------------------------------------------------
Facsimile: Facsimile:
-------------------------- -------------------------------------------
"PURCHASERS": "PURCHASERS":
Name: ▇▇▇▇ ▇▇▇▇▇ Name: Integral Capital Partners IV, L.P.
------------------------------- ------------------------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: Integral Capital Management IV, LLC
--------------------------------- its General Partner
Printed Name: ▇▇▇▇ ▇▇▇▇▇
----------------------- By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: --------------------------------------------------
---------------------------- Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, A Manager
----------------------------------------
------------------------------------ Address:
---------------------------------------------
------------------------------------
-----------------------------------------------------
Facsimile:
-------------------------- -----------------------------------------------------
Facsimile:
-------------------------------------------
"PURCHASERS": "PURCHASERS":
Name: ▇▇▇▇ ▇▇▇▇▇ Name: Integral Capital Partners IV MS Side Fund, L.P.
------------------------------- ------------------------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: Integral Capital Partners MS Management, LLC
--------------------------------- its General Partner
Printed Name: ▇▇▇▇ ▇▇▇▇▇
----------------------- By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: --------------------------------------------------
---------------------------- Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, A Manager
----------------------------------------
------------------------------------ Address:
---------------------------------------------
------------------------------------
-----------------------------------------------------
Facsimile:
-------------------------- -----------------------------------------------------
Facsimile:
-------------------------------------------
"PURCHASERS": "PURCHASERS":
Name: Pivitol Partners, LP Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 1995 Trust
------------------------------- ------------------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Address: Address:
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Facsimile: Facsimile:
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List of Exhibits:
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A Schedule of Purchasers
B Restated Certificate
C Schedule of Exceptions
D Fenwick & West Opinion
E Stockholders' Agreement Amendment
F NetSelect Stockholders' Agreement
G Consent and Waiver
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Exhibit A
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Schedule of Purchasers
Aggregate Number
Name and Address Purchase Price of Shares
---------------- --------------- ----------
ATGF II $ 7,516,993 150,762
SUCRE Building Calle 48 Este
Bella Vista, P.O. Box 5168
Panama S, Panama
▇▇▇▇▇▇ Master Trust $ 1,121,850 22,500
c/o Chase Manhattan Bank
Four New York Plaza
Ground Floor
New York, NY 10004
Attention: Chase Acct. #P49391, ▇▇▇▇▇▇
Industries
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ $ 49,860 1,000
Amerindo Investment Advisers, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 49,860 1,000
Amerindo Investment Advisers, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 1995 Trust $ 299,160 6,000
c/o Amerindo Investment Advisers, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇
Pivotal Partners, L.P. $ 698,040 14,000
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 1995 Trust
Amerindo Investment Advisers, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ $ 249,300 5,000
Amerindo Investment Advisers, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
22
▇▇▇▇ ▇▇▇▇▇ $ 14,958 300
Amerindo Investment Advisers, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Integral Capital Partners IV, L.P. $ 4,977,424 99,828
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax #(▇▇▇) ▇▇▇-▇▇▇▇
Integral Capital Partners IV MS Side $ 22,587 453
Fund, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax #(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ Interactive Media, Inc. $ 1,999,984 40,112
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Fax # (▇▇▇) ▇▇▇-▇▇▇▇
Total $17,000,016 340,955
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