ex10-35



 




Exhibit 10.35



PURCHASE AGREEMENT


              THIS PURCHASE AGREEMENT (“Agreement”) is made as of the 25th day of
January, 2002 by and among Audible, Inc., a Delaware corporation (the
“Company”), and the Investors set forth on the signature pages affixed hereto
(each an “Investor” and collectively the “Investors”).


Recitals



              A.      The Company and the Investors are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D (“Regulation D”), as promulgated by the U.S.
Securities and Exchange Commission (the “SEC”) under the Securities Act of
1933, as amended; and


              B.      The Investors wish to purchase from the Company, and the Company wishes
to sell and issue to the Investors, upon the terms and conditions stated in
this Agreement, (i) an aggregate of 4,069,768 shares of common stock, par value
$.01 per share, of the Company (the “Common Stock”), and (ii) warrants to
purchase an aggregate of 1,220,930 shares of Common Stock in the form attached
hereto as Exhibit A (the “Warrants”); and


              C.      Contemporaneous with the sale of the Common Stock and Warrants, the
parties hereto will execute and deliver a Registration Rights Agreement, in the
form attached hereto as Exhibit B (the “Registration Rights Agreement”),
pursuant to which the Company will agree to provide certain registration rights
under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, and applicable state securities laws.


              In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:


     1.      Definitions. In addition to those terms defined above and elsewhere in
this Agreement, for the purposes of this Agreement, the following terms shall
have the meanings here set forth:


              “Affiliate” means, with respect to any Person, any other Person which
directly or indirectly Controls, is controlled by, or is under common control
with, such Person.


              “Agreements” means this Agreement, the Warrants and the Registration
Rights Agreement.


              “Business Day” means a day, other than a Saturday or Sunday, on which
banks in New York City are open for the general transaction of business.


 







 



              “Company’s Knowledge” means the actual knowledge of the officers of the
Company, after due inquiry.


              “Control” means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.


              “Intellectual Property” means all of the following: (i) patents, patent
applications, patent disclosures and inventions (whether or not patentable and
whether or not reduced to practice); (ii) trademarks, service marks, trade
dress, trade names, corporate names, logos, slogans and Internet domain names,
together with all goodwill associated with each of the foregoing; (iii)
copyrights and copyrightable works; (iv) registrations, applications and
renewals for any of the foregoing; (v) trade secrets, confidential information
and know-how (including but not limited to ideas, formulae, compositions,
manufacturing and production processes and techniques, research and development
information, drawings, specifications, designs, business and marketing plans,
and customer and supplier lists and related information); and (vi) proprietary
computer software (including but not limited to data, data bases and
documentation).


              “Material Adverse Effect” means (i) a material adverse effect on the
assets, liabilities, results of operations, condition (financial or otherwise),
business, or prospects of the Company and its subsidiaries taken as a whole, or
(ii) a material adverse effect on the ability of the Company to perform its
obligations under the Agreements.


              “Nasdaq” means the NASDAQ Stock Market, Inc. National Market System.


              “Person” means an individual, corporation, partnership, limited liability
company, trust, business trust, association, joint stock company, joint
venture, sole proprietorship, unincorporated organization, governmental
authority or any other form of entity not specifically listed herein.


              “Purchase Price” means Three Million Five Hundred Thousand Dollars and
Forty Eight Cents ($3,500,000.48).


              “SEC Filings” has the meaning set forth in Section 4.6.


              “Securities” means the Shares, the Warrants and the Warrant Shares.


              “Shares” means the shares of Common Stock being purchased by the Investors
hereunder.


              “Warrant Shares” means the shares of Common Stock issuable upon exercise
of or otherwise pursuant to the Warrants.


              “1933 Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.


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              “1934 Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.


     2.      Purchase and Sale of the Shares and Warrants. Subject to the terms and
conditions of this Agreement, on the Closing Date, each of the Investors shall
severally, and not jointly, purchase, and the Company shall sell and issue to
the Investors, the Shares and Warrants in the respective amounts set forth
opposite the Investors’ names on the signature pages attached hereto in
exchange for the Purchase Price as specified in Section 3 below.


     3.      Closing. Upon confirmation that the conditions to closing specified
herein have been satisfied, the Company shall deliver to Lowenstein Sandler PC,
in trust, a certificate or certificates, registered in such name or names as
the Investors may designate, representing the Shares and Warrants, with
instructions that such certificates are to be held for release to the Investors
only upon payment of the Purchase Price to the Company. Upon receipt by
Lowenstein Sandler PC of the certificates, each Investor shall promptly cause a
wire transfer in same day funds to be sent to the account of the Company as
instructed in writing by the Company, in an amount representing such Investor’s
pro rata portion of the Purchase Price as set forth on the signature pages to
this Agreement. On the date (the “Closing Date”) the Company receives such
funds, the certificates evidencing the Shares and Warrants shall be released to
the Investors (the “Closing”). The purchase and sale of the Shares and
Warrants shall take place at the offices of Lowenstein Sandler PC, 1330 Avenue
of the Americas, 21st Floor, New York, New York, or at such other location and
on such other date as the Company and the Investors shall mutually agree.


     4.      Representations and Warranties of the Company. The Company hereby
represents and warrants to the Investors that, except as set forth in the
schedules delivered herewith (collectively, the “Disclosure Schedules”):


              4.1      Organization, Good Standing and Qualification. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all requisite corporate
power and authority to carry on its business as now conducted and to own its
properties. The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property makes such
qualification or leasing necessary unless the failure to so qualify has not and
could not reasonably be expected to have a Material Adverse Effect. The
Company does not have any direct or indirect subsidiaries or any other equity
interest in any other firm, corporation, partnership, joint venture,
association or other business organization.


              4.2      Authorization. The Company has full power and authority and has taken
all requisite action on the part of the Company, its officers, directors and
shareholders necessary for (i) the authorization, execution and delivery of the
Agreements, (ii) authorization of the performance of all obligations of the
Company hereunder or thereunder, and (iii) the authorization, issuance (or
reservation for issuance) and delivery of the Securities. The Agreements
constitute the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the extent
limited by (i) the effect


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of bankruptcy, insolvency, reorganization, receivership, conservatorship,
arrangement, moratorium, fraudulent transfer or other laws affecting or
relating to the rights of creditors generally, (ii) the rules governing the
availability of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether arising prior
to, or after, the date hereof or considered in a proceeding in equity or at
law, or (iii) the effect of federal and state securities laws and principles of
public policy on rights of indemnity and contribution..


              4.3      Capitalization. Schedule 4.3 sets forth (a) the authorized capital
stock of the Company on the date hereof; (b) the number of shares of capital
stock issued and outstanding; (c) the number of shares of capital stock
issuable pursuant to the Company’s stock plans; and (d) the number of shares of
capital stock issuable and reserved for issuance pursuant to securities (other
than the Shares and the Warrants) exercisable for, or convertible into or
exchangeable for any shares of capital stock of the Company. All of the issued
and outstanding shares of the Company’s capital stock have been duly authorized
and validly issued and are fully paid, nonassessable and free of pre-emptive
rights and were issued in full compliance with applicable law. Except as
described on Schedule 4.3, no Person is entitled to pre-emptive or similar
statutory or contractual rights with respect to any securities of the Company.
Except as described on Schedule 4.3, there are no outstanding warrants,
options, convertible securities or other rights, agreements or arrangements of
any character under which the Company is or may be obligated to issue any
equity securities of any kind and except as contemplated by this Agreement, the
Company is not currently in negotiations for the issuance of any equity
securities of any kind. Except as described on Schedule 4.3 and except for the
Registration Rights Agreement, there are no voting agreements, buy-sell
agreements, option or right of first purchase agreements or other agreements of
any kind among the Company and any of the securityholders of the Company
relating to the securities of the Company held by them. Except as described on
Schedule 4.3, the Company has not granted any Person the right to require the
Company to register any securities of the Company under the 1933 Act, whether
on a demand basis or in connection with the registration of securities of the
Company for its own account or for the account of any other Person.


              Schedule 4.3 sets forth a true and complete table setting forth the pro
forma capitalization of the Company on a fully diluted basis giving effect to
(i) the issuance of the Shares and the Warrants, (ii) any adjustments in other
securities resulting from such issuance, and (iii) the exercise or conversion
of all outstanding securities. Except as described on Schedule 4.3, the
issuance of the Securities hereunder will not trigger any outstanding
anti-dilution rights.


              4.4      Valid Issuance. The Shares have been duly and validly authorized and,
when issued and paid for pursuant to this Agreement, will be validly issued,
fully paid and nonassessable free and clear of all encumbrances and
restrictions, except for restrictions on transfer set forth in this Agreement
or imposed by applicable securities laws. The Warrants have been duly and
validly authorized. Upon the due exercise of the Warrants, the Warrant Shares
issuable upon such exercise will be validly issued, fully paid and
non-assessable free and clear of all encumbrances and restrictions, except for
restrictions on transfer set forth in this Agreement or imposed by applicable
securities laws. The Company has reserved a sufficient number of shares of
Common Stock for issuance upon the exercise of the Warrants, free and clear of
all


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encumbrances and restrictions, except for restrictions on transfer set forth in
this Agreement or imposed by applicable securities laws.


              4.5      Consents. The execution, delivery and performance by the Company of
the Agreements and the offer, issuance and sale of the Securities require no
consent of, action by or in respect of, or filing with, any Person,
governmental body, agency, or official other than filings that have been made
pursuant to applicable state securities laws and post-sale filings pursuant to
applicable state and federal securities laws which the Company undertakes to
file within the applicable time periods. The Company has taken all action
necessary to exempt (i) the sale of the Securities, (ii) the issuance of the
Warrant Shares upon due exercise of the Warrants, and (iii) the other
transactions contemplated by this Agreement from the provisions of any
anti-takeover or business combination law or statute binding on the Company or
to which the Company or any of its assets and properties may be subject.


              4.6      Delivery of SEC Filings; Business. The Company has provided or made
available to the Investors with copies of the Company’s most recent Annual
Report on Form 10-K for the fiscal year ended December 31, 2000 (the “2000
10-K”), and all other reports filed by the Company pursuant to the 1934 Act
since the filing of the 2000 10-K and prior to the date hereof (collectively,
the “SEC Filings”). The SEC Filings are the only filings required of the
Company pursuant to the 1934 Act for such period. The Company is engaged only
in the business described in the SEC Filings and the SEC Filings contain a
complete and accurate description in all material respects of the business of
the Company.


              4.7      Use of Proceeds. The proceeds of the sale of the Common Stock and the
Warrants hereunder shall be used by the Company for working capital and general
corporate purposes.


              4.8      No Material Adverse Change. Since December 31, 2000, except as
identified and described in the SEC Filings or on Schedule 4.8, there has not
been:


                          (i)      any change in the consolidated assets, liabilities, financial
condition or operating results of the Company from that reflected in the
financial statements included in the 2000 10-K, except for changes in the
ordinary course of business which have not and could not reasonably be expected
to have a Material Adverse Effect, individually or in the aggregate;


                          (ii)     any declaration or payment of any dividend, or any authorization or
payment of any distribution, on any of the capital stock of the Company, or any
redemption or repurchase of any securities of the Company;


                          (iii)    any material damage, destruction or loss, whether or not covered by
insurance to any assets or properties of the Company;


                          (iv)      any waiver, not in the ordinary course of business, by the Company of
a material right or of a material debt owed to it;


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                          (v)      any satisfaction or discharge of any lien, claim or encumbrance or
payment of any obligation by the Company, except in the ordinary course of
business and which is not material to the assets, properties, financial
condition, operating results or business of the Company (as such business is
presently conducted and as it is proposed to be conducted);


                          (vi)      any change or amendment to the Company’s Certificate of Incorporation
or by-laws, or material change to any material contract or arrangement by which
the Company is bound or to which its assets or properties is subject;


                          (vii)    any material labor difficulties or labor union organizing activities
with respect to employees of the Company;


                          (viii)    any transaction entered into by the Company other than in the
ordinary course of business;


                          (ix)      the loss of the services of any key employee, or material change in
the composition or duties of the senior management of the Company;


                          (x)      the loss or threatened loss of any customer which has had or could
reasonably be expected to have a Material Adverse Effect; or


                          (xi)      any other event or condition of any character that has had or could
reasonably be expected to have a Material Adverse Effect.


              4.9      SEC Filings; S-3 Eligibility.


                          (a)      At the time of filing thereof, the SEC Filings complied as to form in
all material respects with the requirements of the 1934 Act and did not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.


                          (b)      During the preceding two years, each registration statement and any
amendment thereto filed by the Company pursuant to the 1933 Act and the rules
and regulations thereunder, as of the date such statement or amendment became
effective, complied as to form in all material respects with the 1933 Act and
did not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading; and each prospectus filed pursuant to Rule 424(b) under
the 1933 Act, as of its issue date and as of the closing of any sale of
securities pursuant thereto did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.


                          (c)      The Company meets the registrant requirements for use of Form S-3 set
forth in General Instruction I.A. of Form S-3. As of the Closing, the sale by
the Investors


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of the Registrable Securities (as such term is defined in the Registration
Rights Agreement) meets the transaction requirements for use of Form S-3 set
forth in General Instruction I.B.3. of Form S-3.


              4.10      No Conflict, Breach, Violation or Default. The execution, delivery
and performance of the Agreements by the Company and the issuance and sale of
the Securities will not conflict with or result in a breach or violation of any
of the terms and provisions of, or constitute a default under (i) the Company’s
Certificate of Incorporation or the Company’s Bylaws, both as in effect on the
date hereof (copies of which have been provided to the Investors before the
date hereof), or (ii)(a) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or its assets or properties, or (b) any agreement
or instrument to which the Company is a party or by which the Company is bound
or to which its assets or properties is subject, except, in the case of clause
(ii), for such conflicts, breaches or violations which could not reasonably be
expected to have a Material Adverse Effect, individually or in the aggregate.
The Company has received irrevocable waivers of any rights of first offer,
rights of first refusal or other preemptive or other subscription rights that
may apply to the issuance and sale of the Securities as contemplated hereby,
the Company has complied with the terms of any such rights and any such waivers
with respect thereto, and such waivers are in full force and effect. Such
waivers do not require the Company or any other Person to take or refrain from
taking any action. True and complete copies of such waivers have been provided
to the Investors prior to the execution and delivery of this Agreement.


              4.11      Tax Matters. The Company has timely prepared and filed all tax
returns required to have been filed by the Company with all appropriate
governmental agencies and timely paid all taxes shown thereon or otherwise owed
by it. The charges, accruals and reserves on the books of the Company in
respect of taxes for all fiscal periods are adequate in all material respects,
and there are no material unpaid assessments against the Company nor, to the
Company’s Knowledge, any basis for the assessment of any additional taxes,
penalties or interest for any fiscal period or audits by any federal, state or
local taxing authority except for any assessment which is not material to the
Company. All taxes and other assessments and levies that the Company is
required to withhold or to collect for payment have been duly withheld and
collected and paid to the proper governmental entity or third party when due.
There are no tax liens or claims pending or, to the Company’s Knowledge,
threatened against the Company or its assets or property. Except as described
on Schedule 4.11, there are no outstanding tax sharing agreements or other such
arrangements between the Company or any other Person.


              4.12      Title to Properties. Except as disclosed in the SEC Filings, the
Company has good and marketable title to all real properties and all other
properties and assets owned by it, in each case free from liens, encumbrances
and defects that would materially affect the value thereof or materially
interfere with the use made or currently planned to be made thereof by them;
and except as disclosed in the SEC Filings, the Company holds any leased real
or personal property under valid and enforceable leases with no exceptions that
would materially interfere with the use made or currently planned to be made
thereof by them.


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              4.13      Certificates, Authorities and Permits. The Company possesses
adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now operated
by it, and the Company has not received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company, could reasonably be expected to
have a Material Adverse Effect, individually or in the aggregate.


              4.14      No Labor Disputes. No material labor dispute with the employees of
the Company exists or, to the Company’s Knowledge, is imminent.


              4.15      Intellectual Property.


                          (a)      All Intellectual Property of the Company is currently in compliance
with all legal requirements (including timely filings, proofs and payments of
fees), except for such instances of noncompliance as would not have a Material
Adverse Effect, individually or in the aggregate. No Intellectual Property of
the Company which is necessary for the conduct of Company’s business as
currently conducted or as currently proposed to be conducted has been or is now
involved in any cancellation, dispute or litigation, and, to the Company’s
Knowledge, no such action is threatened. No patent of the Company has been or
is now involved in any interference, reissue, re-examination or opposition
proceeding.


                          (b)      All of the licenses and sublicenses and consent, royalty or other
agreements concerning Intellectual Property which are necessary for the conduct
of Company’s business as currently conducted or as currently proposed to be
conducted to which the Company is a party or by which any of their assets are
bound (other than generally commercially available, non-custom, off-the-shelf
software application programs having a retail acquisition price of less than
$10,000 per license) (collectively, “License Agreements”) are valid and binding
obligations of the Company and, to the Company’s Knowledge, the other parties
thereto, enforceable in accordance with their terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws affecting the
enforcement of creditors’ rights generally, and there exists no event or
condition which will result in a material violation or breach of or constitute
(with or without due notice or lapse of time or both) a default by the Company
under any such License Agreement.


                          (c)      The Company owns or has the valid right to use all of the Intellectual
Property necessary for the conduct of the Company’s business substantially as
currently conducted or as currently proposed to be conducted and for the
ownership, maintenance and operation of the Company’s properties and assets.


                          (d)      The Company owns the owned Intellectual Property that is necessary for
the conduct of Company’s business as currently conducted or as currently
proposed to be conducted, free and clear of all liens, encumbrances, adverse
claims or obligations to license all such owned Intellectual Property, other
than licenses entered into in the ordinary course of the Company’s business.
The Company has a valid and enforceable right to use all other Intellectual
Property used or held for use in the Company’s business as currently conducted
or as currently proposed to be conducted. The Company has the right to use all
of the


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owned and licensed Intellectual Property which is necessary for the conduct of
its business as currently conducted or as currently proposed to be conducted in
all jurisdictions in which it conducts its business.


                          (e)      The Company has taken reasonable steps to maintain, police and protect
the Intellectual Property which it owns and which is necessary for the conduct
of Company’s business as currently conducted or as currently proposed to be
conducted, including the execution of appropriate confidentiality agreements
and intellectual property and work product assignments and releases. The
conduct of the Company’s business as currently conducted does not infringe or
otherwise impair or conflict with (collectively, “Infringe”) any Intellectual
Property rights of any third party, and, to the Company’s Knowledge, the
Intellectual Property rights of the Company which are necessary for the conduct
of Company’s business as currently conducted or as currently proposed to be
conducted are not being Infringed by any third party. There is no litigation
or order pending or outstanding or, to the Company’s Knowledge, threatened or
imminent, that seeks to limit or challenge or that concerns the ownership, use,
validity or enforceability of any Intellectual Property of the Company and the
Company’s use of any Intellectual Property owned by a third party, and, to the
Company’s Knowledge, there is no valid basis for the same.


                          (f)      The consummation of the transactions contemplated hereby will not
result in the alteration, loss, impairment of or restriction on the Company’s
ownership or right to use any of the Intellectual Property which is necessary
for the conduct of Company’s business as currently conducted or as currently
proposed to be conducted.


                          (g)      All software owned by the Company, and, to the Company’s Knowledge,
all software licensed from third parties by the Company, (i) is free from any
material defect, bug, virus, or programming, design or documentation error;
(ii) operates and runs in a reasonable and efficient business manner; and (iii)
conforms in all material respects to the specifications and purposes thereof.


                          (h)      The Company has taken reasonable steps to protect the Company’s rights
in its confidential information and trade secrets. Each employee, consultant
and contractor who has had access to proprietary Intellectual Property which is
necessary for the conduct of Company’s business as currently conducted or as
currently proposed to be conducted has executed an agreement to maintain the
confidentiality of such Intellectual Property and has executed appropriate
agreements that are substantially consistent with the Company’s standard forms
thereof. Except under confidentiality obligations, there has been no material
disclosure of any of the Company’s confidential information or trade secrets to
any third party.


              4.16      Environmental Matters. The Company is not in violation of any
statute, rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, “Environmental Laws”), except for violations that could not
reasonably be expected to have a Material Adverse Effect, individually or in
the aggregate. The Company does not own or operate any real property
contaminated with any substance that is subject to any


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Environmental Laws, is not liable for any off-site disposal or contamination
pursuant to any Environmental Laws, and is not subject to any claim relating to
any Environmental Laws, which violation, contamination, liability or claim has
had or could reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate; and there is no pending or, to the Company’s
Knowledge, threatened investigation that might lead to such a claim.


              4.17      Litigation. Except as described on Schedule 4.17, there are no
pending actions, suits or proceedings against or affecting the Company or any
of its properties; and to the Company’s Knowledge, no such actions, suits or
proceedings are threatened or contemplated.


              4.18      Financial Statements. The financial statements included in each SEC
Filing present fairly, in all material respects, the financial position of the
Company as of the dates shown and its results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
conformity with United States generally accepted accounting principles applied
on a consistent basis (except as may be disclosed therein or in the notes
thereto, and, in the case of quarterly financial statements, as permitted by
Form 10-Q under the 1934 Act). Except as set forth in the financial statements
of the Company included in the SEC Filings filed prior to the date hereof or as
described on Schedule 4.18, the Company has not incurred any liabilities,
contingent or otherwise, except those incurred in the ordinary course of
business, consistent (as to amount and nature) with past practices since the
date of such financial statements, none of which, individually or in the
aggregate, have had or could reasonably be expected to have a Material Adverse
Effect.


              4.19      Insurance Coverage. The Company maintains in full force and effect
insurance coverage that is customary for comparably situated companies for the
business being conducted and properties owned or leased by the Company, and the
Company reasonably believes such insurance coverage to be adequate against all
liabilities, claims and risks against which it is customary for comparably
situated companies to insure.


              4.20      Compliance with Nasdaq Continued Listing Requirements. The Company
is in compliance with applicable Nasdaq National Market continued listing
requirements. There are no proceedings pending or, to the Company’s Knowledge,
threatened against the Company relating to the continued listing of the
Company’s Common Stock on the Nasdaq National Market and the Company has not
received any currently effective notice of, nor to the Company’s Knowledge is
there any basis for, the delisting of the Common Stock from the Nasdaq National
Market.


              4.21      Brokers and Finders. Except for Alpine Capital Partners, Inc., the
fees and expenses of whom shall be paid by the Company, no Person will have, as
a result of the transactions contemplated by this Agreement, any valid right,
interest or claim against or upon the Company or an Investor for any
commission, fee or other compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of the Company.


              4.22      No Directed Selling Efforts or General Solicitation. Neither the
Company nor any Person acting on its behalf has conducted any general
solicitation or general advertising


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(as those terms are used in Regulation D) in connection with the offer or sale
of any of the Securities.


              4.23      No Integrated Offering. Neither the Company nor any of its
Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any Company security or solicited any
offers to buy any security, under circumstances that would adversely affect
reliance by the Company on Section 4(2) for the exemption from registration for
the transactions contemplated hereby or would require registration of the
Securities under the 1933 Act.


              4.24      Questionable Payments. Neither the Company nor, to the Company’s
Knowledge, any of its current or former shareholders, directors, officers,
employees, agents or other Persons acting on behalf of the Company, has on
behalf of the Company or in connection with their respective businesses: (a)
used any corporate funds for unlawful contributions, gifts, entertainment or
other unlawful expenses relating to political activity; (b) made any direct or
indirect unlawful payments to any governmental officials or employees from
corporate funds; (c) established or maintained any unlawful or unrecorded fund
of corporate monies or other assets; (d) made any false or fictitious entries
on the books and records of the Company; or (e) made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment of any
nature.


              4.25      Disclosures. The written materials delivered to the Investors in
connection with the transactions contemplated by the Agreements do not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. Except as described
in the Disclosure Schedule, none of the matters described on the Disclosure
Schedules have had, or could reasonably be expected to have, a Material Adverse
Effect, individually or in the aggregate.


     5.      Representations and Warranties of the Investor. Each of the Investors
hereby severally, and not jointly, represents and warrants to the Company that:


              5.1      Organization and Existence. The Investor is a validly existing
corporation, limited partnership or limited liability company and has all
requisite corporate, partnership or limited liability company power and
authority to invest in the Securities pursuant to this Agreement.


              5.2      Authorization. The execution, delivery and performance by the
Investor of the Agreements have been duly authorized and the Agreements will
each constitute the valid and legally binding obligation of the Investor,
enforceable against the Investor in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability, relating to or affecting creditors’
rights generally.


              5.3      Purchase Entirely for Own Account. The Securities to be received by
the Investor hereunder will be acquired for the Investor’s own account, not as
nominee or agent, and


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not with a view to the resale or distribution of any part thereof in violation
of the 1933 Act, and the Investor has no present intention of selling, granting
any participation in, or otherwise distributing the same in violation of the
1933 Act. The Investor is not a registered broker dealer or an entity engaged
in the business of being a broker dealer.


              5.4      Investment Experience. The Investor acknowledges that it can bear the
economic risk and complete loss of its investment in the Securities and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment contemplated
hereby.


              5.5      Disclosure of Information. The Investor has had an opportunity to
receive all additional information related to the Company requested by it and
to ask questions of and receive answers from the Company regarding the Company,
its business and the terms and conditions of the offering of the Securities.
The Investor acknowledges receipt of copies of the SEC Filings. Neither such
inquiries nor any other due diligence investigation conducted by the Investor
shall modify, amend or affect the Investor’s right to rely on the Company’s
representations and warranties contained in this Agreement.


              5.6      Restricted Securities. The Investor understands that the Securities
are characterized as “restricted securities” under the U.S. federal securities
laws inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the 1933 Act only in
certain limited circumstances.


              5.7      Legends. It is understood that, until the earlier of (i) registration
for resale pursuant to the Registration Rights Agreement or (ii) the time when
such Securities may be sold pursuant to Rule 144(k), certificates evidencing
such Securities may bear the following or any similar legend:


                          (a)      “The securities represented hereby may not be transferred unless (i)
such securities have been registered for sale pursuant to the Securities Act of
1933, as amended, (ii) such securities may be sold pursuant to Rule 144(k), or
(iii) the Company has received an opinion of counsel satisfactory to it that
such transfer may lawfully be made without registration under the Securities
Act of 1933 or qualification under applicable state securities laws.”


                          (b)      If required by the authorities of any state in connection with the
issuance of sale of the Securities, the legend required by such state
authority.


              Upon the earlier of (i) registration for resale pursuant to the
Registration Rights Agreement and receipt by the Company of the Investor’s
written confirmation that such Securities will not be disposed of except in
compliance with the prospectus delivery requirements of the 1933 Act or (ii)
Rule 144(k) becoming available the Company shall, upon an Investor’s written
request, promptly cause certificates evidencing the Securities to be replaced
with certificates which do not bear such restrictive legends, and Warrant
Shares subsequently issued in respect of the Warrants shall not bear such
restrictive legends provided the provisions


-12-







 




of either clause (i) or clause (ii) above, as applicable, are satisfied with
respect to such Warrant Shares. When the Company is required to cause
unlegended certificates to replace previously issued legended certificates, if
unlegended certificates are not delivered to an Investor within five (5)
Business Days of submission by that Investor of legended certificate(s) to the
Company’s transfer agent together with a representation letter in customary
form, the Company shall be liable to the Investor for a penalty equal to 1% of
the aggregate purchase price of the Securities evidenced by such certificate(s)
for each thirty (30) day period (or portion thereof) beyond such three (3)
Business Day that the unlegended certificates have not been so delivered.


              5.8      Accredited Investor. The Investor is an accredited investor as
defined in Rule 501(a) of Regulation D, as amended, under the 1933 Act.


              5.9      No General Solicitation. The Investor did not learn of the investment
in the Securities as a result of any public advertising or general
solicitation.


              5.10      Brokers and Finders. No Person will have, as a result of the
transactions contemplated by this Agreement, any valid right, interest or claim
against or upon the Company or an Investor for any commission, fee or other
compensation pursuant to any agreement, arrangement or understanding entered
into by or on behalf of the Investors.


     6.      Conditions to the Closings.


              6.1      Conditions to the Investors’ Obligations. The obligation of the
Investors to purchase the Securities at the Closing is subject to the
fulfillment to the Investors’ satisfaction, on or prior to the Closing Date, of
the following conditions, any of which may be waived by the Investors agreeing
hereunder to purchase a majority of the Shares and Warrants (the “Required
Investors”):


                          (a)      The representations and warranties made by the Company in Section 4
hereof qualified as to materiality shall be true and correct at all times prior
to the Closing Date, except to the extent any such representation or warranty
expressly speaks as of an earlier date, in which case such representation or
warranty shall be true and correct as of such earlier date, and, the
representations and warranties made by the Company in Section 4 hereof not
qualified as to materiality shall be true and correct in all material respects
at all times prior to the Closing Date, except to the extent any such
representation or warranty expressly speaks as of an earlier date, in which
case such representation or warranty shall be true and correct in all material
respects as of such earlier date. The Company shall have performed in all
material respects all obligations and conditions herein required to be
performed or observed by it on or prior to the Closing Date.


                          (b)      The Company shall have obtained in a timely fashion any and all
consents, permits, approvals, registrations and waivers necessary or
appropriate for consummation of the purchase and sale of the Securities all of
which shall be in full force and effect.


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                          (c)      The Company shall have executed and delivered the Registration Rights
Agreement.


                          (d)      The Company shall have received (A) written notice from Nasdaq to the
effect that the issuance and sale of the Securities as contemplated hereby does
not violate the shareholder approval requirements of Nasdaq Marketplace Rule
4350(i), and (B) oral confirmation from Nasdaq that the Shares and the Warrant
Shares shall have been approved for inclusion in Nasdaq upon official notice of
issuance.


                          (e)      No judgment, writ, order, injunction, award or decree of or by any
court, or judge, justice or magistrate, including any bankruptcy court or
judge, or any order of or by any governmental authority, shall have been
issued, and no action or proceeding shall have been instituted by any
governmental authority, enjoining or preventing the consummation of the
transactions contemplated hereby or in the other Agreements.


                          (f)      The Company shall have delivered a Certificate, executed on behalf of
the Company by its Chief Executive Officer or its Chief Financial Officer,
dated as of the Closing Date, certifying to the fulfilment of the conditions
specified in subsections (a), (b) and (d) of this Section 6.1.


                          (g)      The Company shall have delivered a Certificate, executed on behalf of
the Company by its Secretary, dated as of the Closing Date, certifying the
resolutions adopted by the Board of Directors of the Company approving the
transactions contemplated by this Agreement and the other Agreements and the
issuance of the Securities, certifying the current versions of the Certificate
of Incorporation and Bylaws of the Company and certifying as to the signatures
and authority of persons signing the Agreements and related documents on behalf
of the Company.


                          (h)      The Investors shall have received an opinion from Piper Marbury
Rudnick & Wolfe LLP, the Company’s counsel, dated as of the Closing Date, in
form and substance reasonably acceptable to the Investors and addressing such
legal matters as the Investors may reasonably request.


                          (i)      No stop order or suspension of trading shall have been imposed by
Nasdaq, the SEC or any other governmental regulatory body with respect to
public trading in the Common Stock.


              6.2      Conditions to Obligations of the Company. The Company’s obligation to
sell and issue the Securities at the Closing is subject to the fulfillment to
the satisfaction of the Company on or prior to the Closing Date of the
following conditions, any of which may be waived by the Company:


                          (a)      The representations and warranties made by the Investors in Section 5
hereof, other than the representations and warranties contained in Sections
5.3, 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9 (the “Investment Representations”), shall
be true and correct in all material respects when made, and shall be true and
correct in all material respects on the Closing


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Date with the same force and effect as if they had been made on and as of said
date. The Investment Representations shall be true and correct in all respects
when made, and shall be true and correct in all respects on the Closing Date
with the same force and effect as if they had been made on and as of said date.
The Investors shall have performed in all material respects all obligations
and conditions herein required to be performed or observed by them on or prior
to the Closing Date.


                          (b)      The Investors shall have executed and delivered the Registration
Rights Agreement.


                          (c)      The Investors shall have delivered one or more Certificates, executed
on behalf of each Investor by an authorized signatory, dated as of the Closing
Date, certifying to the fulfilment of the conditions specified in subsection
(a) with respect to such Investor.


                          (d)      The Investors shall have delivered to Company the Purchase Price.


                          (e)      The Investors shall have executed and delivered to the Company a
Voting Agreement pursuant to which the Investors agree to vote all of their
Shares in favor of an amendment to the Company’s Certificate of Incorporation
to increase the authorized number of shares of Common Stock to 75,000,000.


                          (f)      The Company shall have received (A) written notice from Nasdaq to the
effect that the issuance and sale of the Securities as contemplated hereby does
not violate the shareholder approval requirements of Nasdaq Marketplace Rule
4350(i), and (B) oral confirmation from Nasdaq that the Shares and the Warrant
Shares shall have been approved for inclusion in Nasdaq upon official notice of
issuance.


              6.3      Termination of Obligations to Effect Closing; Effects.


                          (a)      The obligations of the Company, on the one hand, and the Investors, on
the other hand, to effect the Closing shall terminate as follows:


                                      (i)      

Upon the mutual written consent of the Company and the Required
Investors;


                                      (ii)     By

the Company if any of the conditions set forth in Section 6.2
shall have become incapable of fulfillment, and shall not have been waived by
the Company;


                                      (iii)    By

the Required Investors if any of the conditions set forth in
Section 6.1 shall have become incapable of fulfillment, and shall not have been
waived by the Required Investors; or


                                      (iv)      By

either the Company or the Required Investors if the Closing has
not occurred on or prior to March 31, 2002;


-15-







 




provided, however, that, except in the case of clause (i) above, the party
seeking to terminate its obligation to effect the Closing shall not then be in
breach of any of its representations, warranties, covenants or agreements
contained in this Agreement or the other Agreements if such breach has resulted
in the circumstances giving rise to such party’s seeking to terminate its
obligation to effect the Closing.


                          (b)      In the event of termination by the Company or the Required Investors
of their obligations to effect the Closing pursuant to this Section 6.3,
written notice thereof shall forthwith be given to the other parties hereto and
the obligation of all parties to effect the Closing shall be terminated,
without further action by any party. Nothing in this Section 6.3 shall be
deemed to release any party from any liability for any breach by such party of
the terms and provisions of this Agreement or the other Agreements or to impair
the right of any party to compel specific performance by any other party of its
obligations under this Agreement or the other Agreements.


     7.      Covenants and Agreements of the Company.


              7.1      Limitation on Certain Actions. (a) The Company shall not offer or
sell any Equity Securities (as defined below) on terms more favorable than
those contemplated by the Agreements until 45 days after the date the
Registration Statement (as defined in the Registration Rights Agreement) is
declared effective by the SEC; provided, however, that the restrictions in this
sentence shall not apply to (i) the issuance of an Equity Security to an
officer, director, employee or consultant to the Company or any Subsidiary
pursuant to any incentive or stock option plan of the Company approved by the
shareholders of the Company or the Company’s Board of Directors; (ii) the
issuance of Common Stock in connection with the conversion of any convertible
Equity Securities outstanding on the Closing Date; (iii) the issuance of any
Equity Securities to Random House, Inc. (or its designees); (iv) the issuance
of any Equity Securities to financial institutions or lessors in connection
with commercial credit arrangements, equipment financings or similar
transactions; (v) the issuance of any Equity Securities to strategic business
partners (or proposed partners) in connection with strategic transactions; and
(vi) the payment of semi-annual dividends on the Company’s outstanding shares
of Series A Convertible Preferred Stock (the “Series A Preferred Stock”) in
additional shares of Series A Preferred Stock in accordance with the terms
thereof. The term “Equity Securities” means the Company’s capital stock,
warrants, rights, and options giving the holder thereof the right to acquire
shares of capital stock, and any security directly or indirectly convertible
into or exercisable for or exchangeable into shares of the Company’s capital
stock.


              (b)      Commencing on the date hereof and continuing until such time as the
Investors no longer own in the aggregate at least 406,977 shares of Common
Stock (appropriately adjusted for any stock split, reverse stock split, stock
dividend or other reclassification or combination of the Common Stock occurring
after the date hereof), the Company shall not offer or sell or enter into any
agreement, arrangement or understanding to offer or sell any Equity Security if
the Equity Security (or any agreement, arrangement or understanding entered
into in connection therewith) provides for the future adjustment of (i) the
purchase price therefor, (ii) the number of Equity Securities to be issued, or
(iii) the conversion,


-16-







 




exercise or exchange rate applicable thereto (other than customary
anti-dilution provisions no more favorable to the holder than those contained
in the Warrants) without the prior written consent of the Required Investors,
which consent shall not be unreasonably withheld or delayed.


              7.2      Reservation of Common Stock. The Company shall at all times reserve
and keep available out of its authorized but unissued shares of Common Stock,
solely for the purpose of providing for the exercise of the Warrants, such
number of shares of Common Stock as shall from time to time equal the number of
shares sufficient to permit the exercise of the Warrants issued pursuant to
this Agreement in accordance with their respective terms.


              7.3      Reports. The Company will furnish to such Investors and/or their
assignees such information relating to the Company and its Subsidiaries as from
time to time may reasonably be requested by such Investors and/or their
assignees; provided, however, that such Investors and/or assignees shall hold
in confidence any confidential or proprietary information received from the
Company and identified as such at the time of disclosure such information and
shall use any such confidential or proprietary information solely for the
purpose of monitoring and evaluating their investment in the Company and;
provided, further, that the Company shall not be required to provide any
information to the Investors which, if disclosed to such Investors and/or their
assignees pursuant to the terms of this Section 7.3, would, in the good faith
judgment of the Company, cause the Company or any Subsidiary to violate the
terms of a confidentiality undertaking binding on the Company or such
Subsidiary. Each Investor and/or assignee acknowledges that it is aware, and
that it will advise its representatives who are given access to such
information, that the United States securities laws may prohibit a person who
has material, non-public information concerning matters that may be disclosed
to it pursuant to this Section 7.3 from purchasing or selling securities of the
Company or a company which may be, or may be affiliated with, a party to a
business arrangement or proposed business arrangement with the Company or from
communicating such information to any other person under circumstances in which
it is reasonably foreseeable that such person is likely to purchase or sell
such securities.


              7.4      No Conflicting Agreements. The Company will not take any action,
enter into any agreement or make any commitment that would conflict or
interfere in any material respect with the obligations to the Investors under
the Agreements.


              7.5      Insurance. The Company shall not materially reduce the insurance
coverages described in Section 4.19.


              7.6      Compliance with Laws. The Company will comply in all material
respects with all applicable laws, rules, regulations, orders and decrees of
all governmental authorities.


              7.7      Listing of Underlying Shares and Related Matters. Promptly following
the date hereof, the Company shall take such action as may be required to cause
the Shares and the Warrant Shares to be listed on Nasdaq no later than the
Closing Date. Further, if the Company applies to have its Common Stock or
other securities traded on any other principal stock exchange or market, it
shall include in such application the Shares and the Warrant Shares and will
take such other action as is necessary to cause such Common Stock to be so
listed. The


-17-







 




Company will use commercially reasonable efforts to continue the listing and
trading of its Common Stock on Nasdaq and, in accordance, therewith, will use
commercially reasonable efforts to comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of such
exchange, as applicable.


              7.8      Termination of Covenants. The provisions of Sections 7.3 through 7.6
shall terminate and be of no further force and effect upon the earlier of (i)
the mutual consent of the Company and the Required Investors or (ii) the date
on which the Company’s obligations under the Registration Rights Agreement
terminate.


     8.      Survival and Indemnification.


              8.1      Survival. All representations, warranties, covenants and agreements
contained in this Agreement shall be deemed to be representations, warranties,
covenants and agreements as of the date hereof and shall survive the execution
and delivery of this Agreement for a period of two (2) years from the date of
this Agreement; provided, however, that the provisions contained in Section 7
hereof shall survive in accordance therewith.


              8.2      Indemnification. The Company agrees to indemnify and hold harmless,
on an after-tax and after insurance recovery basis, each Investor and its
Affiliates and their respective directors, officers, employees and agents from
and against any and all losses, claims, damages, liabilities and expenses
(including without limitation reasonable attorney fees and disbursements and
other expenses incurred in connection with investigating, preparing or
defending any action, claim or proceeding, pending or threatened and the costs
of enforcement hereof) (collectively, “Losses”) to which such Person may become
subject as a result of any breach of representation, warranty, covenant or
agreement made by or to be performed on the part of the Company under the
Agreements, and will reimburse any such Person for all such amounts as they are
incurred by such Person.


              8.3      Conduct of Indemnification Proceedings. Promptly after receipt by
any Person (the "Indemnified Person”) of notice of any demand, claim or
circumstances which would or might give rise to a claim or the commencement of
any action, proceeding or investigation in respect of which indemnity may be
sought pursuant to Section 8.2, such Indemnified Person shall promptly notify
the Company in writing and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Person, and shall assume the payment of all fees and expenses; provided,
however, that the failure of any Indemnified Person so to notify the Company
shall not relieve the Company of its obligations hereunder except to the extent
that the Company is materially prejudiced by such failure to notify. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless: (i) the Company and the Indemnified Person
shall have mutually agreed to the retention of such counsel; or (ii) in the
reasonable judgment of counsel to such Indemnified Person representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The Company shall not be liable
for any settlement of any proceeding effected without its written consent,
which consent shall not be unreasonably withheld, but if settled with such
consent, or if there be a final


-18-







 




 judgment for the plaintiff, the Company shall indemnify and hold harmless
such Indemnified Person from and against any loss or liability (to the extent
stated above) by reason of such settlement or judgment. Without the prior
written consent of the Indemnified Person, which consent shall not be
unreasonably withheld, the Company shall not effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Person from all liability arising out of such
proceeding.


     9.      Miscellaneous.


              9.1      Successors and Assigns. This Agreement may not be assigned by a party
hereto without the prior written consent of the Company or the Required
Investors, as applicable, provided, however, (i) an Investor may assign its
rights and delegate its duties hereunder in whole or in part to an Affiliate or
to a third party acquiring some portion or all of its Securities in a private
transaction without the prior written consent of the Company or the other
Investors, after notice duly given by such Investor to the Company and the
other Investors, provided, that no such assignment or obligation shall affect
the obligations of such Investor hereunder, and (ii) the Company may assign its
rights and delegate its duties hereunder to any surviving or successor
corporation in connection with a merger or consolidation of the Company with
another corporation, or a sale, transfer or other disposition of all or
substantially all of the Company’s assets to another corporation, without the
prior written consent of the Investors, after notice duly given by the Company
to the Investors. The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the respective permitted successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.


              9.2      Counterparts; Faxes. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may also
be executed via facsimile, which shall be deemed an original.


              9.3      Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.


              9.4      Notices. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given as hereinafter described (i) if given by personal delivery, then such
notice shall be deemed given upon such delivery, (ii) if given by telex or
telecopier, then such notice shall be deemed given upon receipt of confirmation
of complete transmittal, (iii) if given by mail, then such notice shall be
deemed given upon the earlier of (A) receipt of such notice by the recipient or
(B) three days after such notice is deposited in first class mail, postage
prepaid, and (iv) if given by an internationally recognized overnight air
courier, then such notice shall be deemed given one day


-19-







 




after delivery to such carrier. All notices shall be addressed to the party to
be notified at the address as follows, or at such other address as such party
may designate by ten days’ advance written notice to the other party:


                          If to the Company:



	 	Audible, Inc.

65 Willowbrook Boulevard

Wayne, New Jersey 07470

Attention: Donald R. Katz

Fax: (973) 890-2442



                          With a copy to:



	 	Piper Marbury Rudnick & Wolfe LLP

1775 Wiehle Avenue

Suite 400

Reston, VA 20190

Attention: Nancy A. Spangler

Fax: (703) 773-5000




		
	 	If to the Investors, to the addresses set forth on the
signature pages hereto.



              9.5      Expenses. The parties hereto shall pay their own costs and expenses
in connection herewith, except that the Company shall pay the reasonable fees
and expenses of counsel to the Investors at the Closing, but not in excess of
$20,000. The Company shall reimburse the Investors upon demand for all
reasonable out-of-pocket expenses incurred by the Investors, including without
limitation reimbursement of attorneys’ fees and disbursements, in connection
with any amendment, modification or waiver of this Agreement or the other
Agreements. In the event that legal proceedings are commenced by any party to
this Agreement against another party to this Agreement in connection with this
Agreement or the other Agreements, the party or parties which do not prevail in
such proceedings shall severally, but not jointly, pay their pro rata share of
the reasonable attorneys’ fees and other reasonable out-of-pocket costs and
expenses incurred by the prevailing party in such proceedings.


              9.6      Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the Required Investors. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon each
holder of any Securities purchased under this Agreement at the time
outstanding, each future holder of all such securities, and the Company.


              9.7      Publicity. No public release or announcement concerning the
transactions contemplated hereby shall be issued by the Company or the
Investors without the prior consent of the Company (in the case of a release or
announcement by the Investors) or Special Situations


-20-







 




Fund III, L.P. (“SSF”) (in the case of a release or announcement by the
Company) (which consents shall not be unreasonably withheld), except as such
release or announcement may be required by law or the applicable rules or
regulations of any securities exchange or securities market, in which case the
Company or the Investors, as the case may be, shall allow SSF or the Company,
as applicable, to the extent reasonably practicable in the circumstances,
reasonable time to comment on such release or announcement in advance of such
issuance.


              9.8      Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereby waive any provision of law which renders any provision hereof prohibited
or unenforceable in any respect.


              9.9      Entire Agreement. This Agreement, including the Exhibits and the
Disclosure Schedules, and the other Agreements constitute the entire agreement
among the parties hereof with respect to the subject matter hereof and thereof
and supersede all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter hereof and thereof.


              9.10      Further Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.


              9.11      Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State
of New York without regard to the choice of law principles thereof. Each of
the parties hereto irrevocably submits to the exclusive jurisdiction of the
courts of the State of New York located in New York County and the United
States District Court for the Southern District of New York for the purpose of
any suit, action, proceeding or judgment relating to or arising out of this
Agreement and the transactions contemplated hereby. Service of process in
connection with any such suit, action or proceeding may be served on each party
hereto anywhere in the world by the same methods as are specified for the
giving of notices under this Agreement. Each of the parties hereto irrevocably
consents to the jurisdiction of any such court in any such suit, action or
proceeding and to the laying of venue in such court. Each party hereto
irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.


[signature page follows]


-21-







 



              IN WITNESS WHEREOF, the parties have executed this Agreement or caused
their duly authorized officers to execute this Agreement as of the date first
above written.




	 	 	 
	The Company:	 	
AUDIBLE, INC.
	 
	 
	 	 	
By: /s/ Donald R. Katz
	 	 	
Name: Donald R. Katz
	 	 	
Title: Chairman and Chief Executive Officer



-22-







 




	 	 	 
	The Investors:	 	
SPECIAL SITUATIONS FUND III, L.P.
	 
	 
	 	 	
By: /s/ Austin Marxe
	 	 	
Name: Austin Marxe
	 	 	
Title: General Partner




Aggregate Purchase Price: $1,800,000

Number of Shares: 2,093,023

Number of Warrants: 627,906


Address for Notice:




	 	153 E. 53rd Street

55th Floor

New York, NY 10022






	 	with a copy to:




	 	Lowenstein Sandler PC

65 Livingston Avenue

Roseland, NJ 07068

Attn: John D. Hogoboom, Esq.

Telephone: 973.597.2500

Facsimile: 973.597.2400




	 	SPECIAL SITUATIONS CAYMAN FUND, L.P.




	 	By: /s/ Austin Marxe

Name: Austin Marxe

Title: General Partner



Aggregate Purchase Price: $500,000

Number of Shares: 581,396

Number of Warrants: 174,419


Address for Notice:



	 	153 E. 53rd Street

55th Floor

New York, NY 10022



-23-







 




	 	with a copy to:




	 	Lowenstein Sandler PC

65 Livingston Avenue

Roseland, NJ 07068

Attn: John D. Hogoboom, Esq.

Telephone: 973.597.2500

Facsimile: 973.597.2400




	 	SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P.




	 	By: /s/ Austin Marxe

Name: Austin Marxe

Title: General Partner



Aggregate Purchase Price: $750,000

Number of Shares: 872,093

Number of Warrants: 261,628



	 	153 E. 53rd Street

55th Floor

New York, NY 10022




	 	with a copy to:




	 	Lowenstein Sandler PC

65 Livingston Avenue

Roseland, NJ 07068

Attn: John D. Hogoboom, Esq.

Telephone: 973.597.2500

Facsimile: 973.597.2400




	 	SPECIAL SITUATIONS TECHNOLOGY FUND, L.P.




	 	By: /s/ Austin Marxe

Name: Austin Marxe

Title: General Partner



Aggregate Purchase Price: $450,000

Number of Shares: 523,256

Number of Warrants: 156,977


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Address for Notice:



	 	153 E. 53rd Street

55th Floor

New York, NY 10022




	 	with a copy to:




	 	Lowenstein Sandler PC

65 Livingston Avenue

Roseland, NJ 07068

Attn: John D. Hogoboom, Esq.

Telephone: 973.597.2500

Facsimile: 973.597.2400




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