EXHIBIT 99.4
Purchase Agreement
PURCHASE AGREEMENT ("Agreement") dated as of February 1, 2000 by and
between Xxxxx X. Xxxxxxxxx ("Seller") and Vulcan Ventures, Inc. ("Purchaser"),
for the purchase of 100,000 ("Shares") of xxxxx0xxxxx.xxx, inc. ("Issuer").
In consideration of the mutual covenants and undertakings contained herein
and for other good and valuable consideration, the sufficiency of which is
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein without definition shall have
the meanings set forth on Annex A hereto.
2. Purchase of the Shares. In reliance upon the representations and warranties
of the Purchaser contained in this Agreement and upon and subject to the terms
and conditions of this Agreement, the Seller agrees to sell the Shares to the
Purchaser. The Purchaser agrees, in reliance upon the representations and
warranties of the Seller contained in this Agreement and upon and subject to the
terms and conditions of this Agreement, to purchase the Shares on the Closing
Date at the Sale Price.
3. Closing and Delivery of Shares. On the Closing Date, the Purchaser shall
pay to the Seller and Sale Price by wire transfer of immediately available funds
to such account of the Seller as the Seller shall reasonably direct. Seller
hereby directs Purchaser to wire the funds to:
___________________________________. Such payment shall be made against delivery
to the Purchaser of the Shares to the offices of the Purchaser or its designee.
Also on such date the Purchaser in accordance with the Purchaser's instructions.
4. Representations and Warranties of the Seller. The Seller hereby represents
and warrants to the Purchaser, as of the date hereof, that:
(a) The Seller has legal capacity and full power and authority to
execute and deliver this Agreement and the Shares and to undertake and
perform his obligations hereunder and thereunder, and this Agreement is
a legal, valid, binding and enforceable obligation of the Seller
(subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally).
(b) The execution, delivery and performance of this Agreement by the
Seller of this Agreement, the compliance with the terms of this
Agreement and the consummation of the transaction contemplated hereby
will not (i) require any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or
agency, (ii) conflict with or constitute a breach of any of the terms
or provisions of, or a default under the Seller's organizational
documents or any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which the Seller is a party or by which the
Seller or any of its/his/her property is bound or (iii) violate or
conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Seller or any property of the Seller.
(c) Immediately prior to the transfer of the Shares to the Purchaser,
the Seller is the legal and beneficial owner of, and has good and
marketable title to, the Shares.
(d) The Shares are not subject to (i) any pledge, lien, mortgage,
hypothecation, security interest, charge, option, or any agreement
purporting to grant such an encumbrance in the Shares or property or
assets of Seller which would include any Shares, or (ii) any
contractual restriction applicable to the Seller on the sale, pledge,
transfer or hypothecation of the Shares, except as disclosed in the
transfer restrictions on the face of the Shares.
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(e) To the knowledge of Seller, the Shares have been duly authorized
and validly issued, are fully paid and non-assessable, and Seller has
the right and all requisite authorities to pledge, assign, grant a
security interest in, transfer and deliver the Shares to the Purchaser
as provided herein.
(f) The Seller is not in possession of Material Non-Public Information
concerning the business, operations or prospects of the Issuer. The
Seller is not restricted from transferring the shares of the Issuer
because of any "blackout period" or similar policy of the Issuer or any
of its affiliates.
(g) The Seller is an "Accredited Investor" within the meaning of Rule
501 of the 1933 Act, and has, in connection with the negotiation,
execution and delivery of this Agreement (i) the knowledge and
sophistication to independently appraise and understand the financial
and legal terms and conditions of this Agreement and to assume the
economic consequences and risks thereof and has, in fact, done so as a
result of arm's length dealings with the Purchaser, (ii) to the extent
necessary, consulted with its own independent tax, accounting,
financial, legal or other advisors and has made its own investment and
trading decisions in connection with this Agreement, based upon its own
judgment and the advice of such advisors and not upon any view
expressed by the Purchaser; (iii) not relied upon any representations
(whether written or oral) of the Purchaser, other than the
representations expressly set forth hereunder, and is not in any
fiduciary relationship with the Purchaser, it being understood that
information and explanations related to the terms and conditions of
this Agreement shall not be considered investment advice or a
recommendation to enter into this Agreement; and (iv) not obtained from
the Purchaser (directly or indirectly through any other person) any
advice, counsel or assurances as to the expected or projected success,
profitability, performance, results or benefit of this Agreement and no
communication (written or oral) received from the Purchaser shall be
deemed to be an assurance or guarantee as to the expected results of
this Agreement.
5. Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants to the Seller as follows:
(a) The Purchaser is an "Accredited Investor" within the meaning of
Rule 501 of the 1933 Act, and by reason of its business and financial
experience the Purchaser has such knowledge, sophistication, and
experience in business and financial matters that it is capable of
evaluating the merits and risks of the prospective Investment in the
Shares and the Purchaser is able to bear the economic risk of such
investment.
(b) The Purchaser is purchasing the Shares for its own account for
investment purposes, and not with a view to distribution. The Purchaser
will not offer, sell, or deliver at any time, directly or indirectly,
the Shares unless the Shares are offered and sold under the applicable
exemptions of the 1933 Act.
6. Warranties and Agreements to Continue. Notwithstanding anything herein to
the contrary, the respective representations, warranties, and agreements of the
Seller and the Purchaser contained in this Agreement shall survive the delivery
of and payment for the Shares.
7. Notices. Any notice or communication in respect to this Agreement will be
sufficiently given to a party if in writing and delivered in person, or by
overnight courier or given by facsimile transmission at the address and
facsimile number specified on the signature page of this Agreement. A notice or
communication will be effective of delivered by hand or sent by overnight
courier or facsimile, on the day it is delivered or, in the case of a facsimile,
received, or if that day is not a Business Day, or if delivered or received, as
applicable, after the close of business on a Business Day, on the first
following day that is a Business Day.
8. Assignment. The Seller acknowledges and consents to the assignment of all
Purchaser's right, title and interest hereunder.
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IT WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
VULCAN VENTURES, INC.
as Purchaser
By: Name: Xxxxxxx X. Xxxxx
Title: Vice President
Address: 000 - 000xx Xxx. XX, #000
Xxxxxxxx, XX 00000
Attention:
Facsimile: (000)000-0000
Telephone: (000)000-0000
XXXXX X. XXXXXXXXX
As Seller
By:
Name:
Title:
Address:
Attention:
Facsimile:
Telephone:
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ANNEX A
DEFINITIONS:
"1993 Act" means the U.S. Securities Act of 1933, as amended.
"1934 Act" means the U.S. Securities Exchange Act of 1934, as amended.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banking institutions in New York City are
authorized or obligated by law to be closed.
"Closing Date" means February 1, 2000.
"Material Non-Public Information" information for these purposes is
any information to which an investor would reasonably attach
importance in reaching a decision to buy, sell or hold securities of
the issuer of the Shares.
"Sale Price" means a Dollar amount equal to 85% of the number of
Shares multiplied by the average closing price per share of a share
of the common stock of the Issuer as reported by Nasdaq on the five
trading days immediately preceding the Closing Date.
"Transfer Agent" means ChaseMellon Shareholder Services LLC.
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