EXHIBIT 10.27
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is entered into as of June 22, 1999, by
and between XxxxxxxXxxxxxxxxx.xxx, Inc., a Delaware corporation ("Purchaser")
and Global Leisure Travel, Inc., a Washington corporation ("GLTI") and The
Xxxxxx Group, Inc., a Washington corporation and a wholly owned subsidiary of
GLTI ("Xxxxxx" and together with GLTI, the "Seller").
RECITALS
WHEREAS, Purchaser and GLTI entered into a Term Sheet (the "Term
Sheet"), pursuant to which Seller had agreed to sell transfer, convey, assign
and deliver to Purchaser and Purchaser had agreed to purchase from Seller
substantially all of the assets of Xxxxxx and any assets of GLTI used or held
for use by GLTI in connection with the conduct of Xxxxxx'x business relating the
computer hardware and software known as the "Contour System" or "Contour" and
comprising Seller's business of providing travel related technology services to
third parties utilizing Xxxxxx'x rights under that certain Contour System
Software License, Customization and Support Agreement between Xxxxxx and Fourth
Dimension Software, and Purchaser had agreed, in partial consideration therefor,
to assume certain obligations in connection therewith by executing an assumption
agreement, and
WHEREAS, GLTI owns all of the issued and outstanding shares of capital
stock of Xxxxxx and now desires to sell such shares to Purchaser and Purchaser
desires to purchase all such shares from GLTI at the purchase price and upon the
terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, GLTI and the Purchaser
hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following
definitions shall apply:
"Agreement" means this Stock Purchase Agreement by and between
the Purchaser and the GLTI, as it may be amended or supplemented from time to
time pursuant to the provisions hereof.
"Stock" means all of the issued and outstanding shares of
capital stock of The Xxxxxx Group, Inc. to be sold to the Purchaser.
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SECTION 2. PURCHASE OF STOCK
2.1 PURCHASE OF STOCK. Subject to the terms and conditions of
this Agreement and on the basis of and in reliance upon the representations,
warranties, covenants and agreements set forth herein, GLTI hereby sells to the
Purchaser, and the Purchaser hereby purchases from GLTI all of Xxxxxx'x Stock in
exchange for the Purchase Price (as defined in Section 2.2). GLTI hereby agrees
to promptly deliver the certificate(s) evidencing the Stock to Purchaser.
2.2 PURCHASE PRICE. For the purposes of this Agreement, the
Purchase Price shall be Two Million Five Hundred Thousand Dollars ($2,500,000).
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE SELLER. In order to
induce the Purchaser to enter into this transaction, the Seller represents and
warrants as follows:
a. Organization and Standing. GLTI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Washington. Xxxxxx is a corporation duly organized, validly existing and in good
standing under the laws of the State of Washington.
b. Corporate Power. GLTI has all necessary corporate power and
authority to execute, deliver and perform this Agreement, and has all requisite
corporate power and authority to sell the Stock hereunder and to carry out the
transactions contemplated hereby.
c. Stock. Upon issue, the Stock will be duly authorized,
validly issued, fully paid and nonassessable, and issued in accordance with
applicable laws.
3.2. REPRESENTATION AND WARRANTIES OF THE PURCHASER. In order
to induce the Seller to enter into this transaction, the Purchaser represents
and warrants as follows:
a. Organization and Standing. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
b. Capitalization. The Purchaser is a corporation, not formed
for purposes of purchasing the Stock, with total assets in excess of US $5
million.
c. Corporate Power. The Purchaser has all necessary power and
authority to execute, deliver and perform this Agreement and the transactions
contemplated hereby.
d. Restriction on Transfer. The Purchaser hereby acknowledges
and agrees that the Stock has not been registered under the Securities Act of
1933, as amended (the "Act"), or qualified with the securities regulatory agency
of any state and may not be resold or otherwise disposed of unless registered
under the Act or qualified with the securities regulatory agency of any state
which has jurisdiction over any such transfer or unless an exemption from such
registration or qualification is available. The Purchaser will transfer the
Stock only in accordance with the applicable requirements of all federal and
state securities laws. The Purchaser acknowledges that the certificate(s)
evidencing the Stock will bear a legend regarding restriction on transfer.
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e. Investment. The Purchaser is purchasing the Stock for its
own account, for investment purposes only, and not for the account of any other
person, and not with a view to, or for offer or sale in connection with, any
distribution, assignment or resale to others or to fractionalization in whole or
in part.
f. Risk. The Purchaser recognizes that investment in Xxxxxx
involves substantial risks, and it has taken full cognizance of and understands
all of the risk factors related to the purchase of the Stock and its knowledge
of Xxxxxx and experience in financial and business matters is such that it is
capable of evaluating the risks of an investment in the Stock. The Purchaser is
able to bear the substantial economic risks of an investment in Xxxxxx for an
indefinite period of time, has no need for liquidity in such investment, and at
the present time, could afford a complete loss of such investment.
g. Due Diligence. The Purchaser acknowledges that all
documents, records and books pertaining to this investment have been made
available for inspection by the Purchaser. The Purchaser has had a reasonable
opportunity to ask questions of and receive answers from the Seller concerning
the investment and all such questions have been answered to the full
satisfaction of the Purchaser.
SECTION 4. GENERAL
4.1. GOVERNING LAW. This Agreement, and the legal relations
between the parties with respect hereto, shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts made
and performed in such state without regard to conflict of law doctrines.
4.2. HEADINGS. The descriptive heading of the Sections of this
Agreement are for convenience only and do not constitute a part of this
Agreement.
4.3. ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding of the parties hereto, and incorporates all prior
and contemporaneous discussions, agreements and understanding between the
parties with respect to the subject matter hereof.
4.4 COUNTERPARTS. This Agreement and any amendment hereto may
be executed in one or more counterparts and by different parties in separate
counterparts. Such counterparts shall constitute one and the same agreement and
shall become effective when the counterparts have been signed by each party and
delivered to the other party.
4.5. ATTORNEY'S FEES. In the event of any action by any party
arising under or out of, in connection with or in respect of the Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, costs and
expenses incurred in such action.
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4.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of both the Purchaser and the Seller contained in
or made pursuant to this Agreement shall survive the execution and delivery of
this Agreement.
4.7. MODIFICATION. Neither this Agreement, nor any provisions
hereof, shall be waived, modified, changed, discharged, terminated, revoked or
canceled except by an instrument in writing signed by the party against whom any
change, discharge or termination is sought.
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IN WITNESS WHEREOF, the undersigned have caused this Stock
Purchase Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized of the date first written above.
XXXXXXXXXXXXXXXXX.XXX, INC.
By: ________________________
Name:
Title:
THE XXXXXX GROUP
By: _______________________
Name:
Title:
GLOBAL LEISURE TRAVEL, INC.
By: _______________________
Name:
Title:
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GENERAL ASSIGNMENT AND XXXX OF SALE
This GENERAL ASSIGNMENT AND XXXX OF SALE is entered into this 22nd day
of June 1999 by and between XxxxxxxXxxxxxxxxx.xxx, Inc., a Delaware corporation
("Purchaser"), and Global Leisure Travel, Inc., a Washington corporation
("GLTI") and The Xxxxxx Group, a Washington corporation and a wholly owned
subsidiary of GLTI ("Xxxxxx" and together with GLTI, the "Seller").
WHEREAS, Purchaser and GLTI have entered into a Term Sheet (the "Term
Sheet"), pursuant to which Seller has agreed to sell, transfer, convey, assign
and deliver to Purchaser and Purchaser has agreed to purchase from Seller
substantially all of the assets of Xxxxxx and any assets of GLTI used or held
for use by GLTI in connection with the conduct of Xxxxxx'x business relating to
the computer hardware and software known as the "Contour System" or "Contour"
and comprising the Seller's business (the "Business") of providing travel
related technology services to third parties utilizing Xxxxxx'x rights under
that certain Contour System Software License, Customization and Support
Agreement (the "License Agreement") between Xxxxxx and Fourth Dimension
Software, and Purchaser has agreed, in partial consideration therefor, to assume
certain obligations in connection therewith by executing an Assumption Agreement
of even date herewith; and
WHEREAS, Seller desires to transfer and assign to Purchaser the assets
described below pursuant to Section IV.C of the Term Sheet of the Asset Purchase
Agreement and Purchaser desires to accept the sale, transfer, conveyance,
assignment and delivery thereof.
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Seller hereby irrevocably sells,
transfers, conveys, assigns and delivers to Purchaser free and clear of all
liens, charges, security interests, adverse claims or other encumbrances
("Liens"), other than Liens specifically referenced or contemplated herein
("Permitted Liens"), all of Seller's right, title and interest in, to and under
the following assets and properties of Seller used or held for use in connection
with the Business, other than the Excluded Assets (as defined below), as the
same shall exist on the date hereof: (i) the License Agreement; (ii) all
inventories of raw materials, work-in-process, finished goods, products under
research and development, demonstration equipment, office and other supplies,
parts, packaging materials and other accessories related thereto which are held
at, or are in transit from or to, the locations at which the Business is
conducted, or located at customers' premises on consignment, in each case, which
are used or held for use by Seller in the conduct of the Business, including any
of the foregoing purchased subject to any conditional sales or title retention
agreement in favor of any other person, together with all rights of Seller
against suppliers of such inventories ("Inventory"); (iii) all trade accounts
receivable and all notes, bonds and other evidences of indebtedness of and
rights to receive payments arising out of sales occurring in the conduct of the
Business and any security agreements related thereto, including any rights of
Seller with respect to any third-party
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collection procedures or any other actions or proceedings which have been
commenced in connection therewith; (iv) all furniture, fixtures, equipment,
machinery and other tangible personal property (other than Inventory and
vehicles) used or held for use in the conduct of the Business at the locations
at which the Business is conducted or at customers' premises on consignment, or
otherwise used or held for use by Seller in the conduct of the Business
(including but not limited to all computer equipment and supplies used in
connection with the development or operation of the Contour System), including
any of the foregoing purchased subject to any conditional sales or title
retention agreement in favor of any other person, (v) the leases of tangible
personal property identified by Purchaser within 90 days hereof as to which
Seller is the lessee or sublessee, together with any options to purchase the
underlying property (the "Personal Property Leases"); (vi) to the extent their
transfer is permitted under the terms thereof, all agreements, leases, licenses,
evidences of indebtedness, mortgages, indentures, security agreements or other
contracts (whether written or oral) ("Contracts") (other than real property
leases, the Personal Property Leases and the Accounts Receivable) to which
Seller is a party and which are utilized in the conduct of the Business (the
"Business Contracts"), including without limitation the License Agreement and
Contracts relating to computer suppliers, purchase orders and marketing
arrangements; (vii) all prepaid expenses relating to the Business; (viii) all
patents and patent rights, trademarks and trademark rights, trade names and
trade name rights, service marks and service xxxx rights, service names and
service name rights, brand names, inventions, processes, formulae, copyrights
and copyright rights, trade dress, business and product names, logos, slogans,
trade secrets, industrial models, processes, designs, methodologies, computer
programs (including all source codes) and related documentation, technical
information, manufacturing, engineering and technical drawings, know-how and all
pending applications for and registrations of patents, trademarks, service marks
and copyrights used or held for use in the conduct of the Business (including
Seller's goodwill therein) and all rights, privileges, claims, causes of action
and options relating or pertaining to the Business or the other assets described
herein; (ix) to the extent their transfer is permitted under the terms thereof
or under applicable laws, all licenses, permits, certificates of authority,
authorizations, approvals, registrations, franchises and similar consents
granted or issued by any governmental or regulatory authority (including
applications therefor) utilized in the conduct of the Business ("Business
Licenses"); (x) the all books and records used or held for use in the conduct of
the Business or otherwise relating to the assets described herein, other than
the minute books, stock transfer books and corporate seal of Seller; and (xi)
all other assets and properties of Seller used or held for use in connection
with the Business except as otherwise provided below (collectively, the
"Assigned Assets"), TO HAVE AND TO HOLD the same unto Purchaser, its successors
and assigns, forever.
The following assets and properties of Seller (the "Excluded Assets")
shall be excluded from and shall not constitute Assigned Assets: (i) cash,
commercial paper, certificates of deposit and other bank deposits, treasury
bills and other cash equivalents; (ii) life insurance policies of officers and
other employees of Seller and all other insurance policies relating to the
operation of the Business; (iii) all assets owned or held by any employee
benefit plans maintained by Seller; (iv) all refunds or credits, if any, of
taxes due to or from Xxxxxx which cannot be assigned by law; (v) real property;
(vi) the minute books, stock transfer books and corporate seal of Xxxxxx; (vii)
any rights (including indemnification) and claims and recoveries under
litigation of Seller
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against third parties arising out of or relating to events prior to the date
hereof; (viii) the rights of Seller in, to and under all Contracts of any
nature, the obligations of Seller under which expressly are not assumed by
Purchaser pursuant hereto, including Contracts relating to the employment or
retention of employees or independent contractors of Seller; (ix) all of
Seller's right, title and interest in, to and under the name "Xxxxxx Group" and
the Xxxxxx Group logo; and (x) Seller's rights under the Term Sheet.
Purchaser hereby accepts the sale, transfer, conveyance, assignment and
delivery of the Assigned Assets.
Seller represents, warrants, covenants and agrees that it: (a) has good
and marketable title to the Assigned Assets, free and clear of all Liens other
than Permitted Liens; and (b) will warrant and defend the sale of the Assigned
Assets against all and every person or persons whomsoever claiming against any
or all of the same.
At any time or from time to time after the date hereof, at Purchaser's
request and without further consideration, Seller shall execute and deliver to
Purchaser such other instruments of sale, transfer, conveyance, assignment and
confirmation, provide such materials and information and take such other actions
as Purchaser may reasonably deem necessary or desirable in order more
effectively to transfer, convey and assign to Purchaser, and to confirm
Purchaser's title to, all of the Assigned Assets, and, to the full extent
permitted by Law, to put Purchaser in actual possession and operating control of
the Assigned Assets and to assist Purchaser in exercising all rights with
respect thereto.
Each of GLTI and Xxxxxx hereby constitutes and appoints Purchaser the
true and lawful attorney of such person, with full power of substitution, in the
name of GLTI, Xxxxxx or Purchaser, but on behalf of and for the benefit of
Purchaser: (i) to demand and receive from time to time any and all of the
Assigned Assets and to make endorsements and give receipts and releases for and
in respect of the same and any part thereof; (ii) to institute, prosecute,
compromise and settle any and all actions or proceedings that Purchaser may deem
proper in order to collect, assert or enforce any claim, right or title of any
kind in or to the Assigned Assets; (iii) to defend or compromise any or all
actions or proceedings in respect of any of the Assigned Assets; and (iv) to do
all such acts and things in relation to the matters set forth in the preceding
clauses (i) through (iii) as Purchaser shall deem desirable. Seller hereby
acknowledges that the appointment hereby made and the powers hereby granted are
coupled with an interest and are not and shall not be revocable by it in any
manner or for any reason. Purchaser shall indemnify and hold harmless Seller and
its officers, directors, employees, agents and affiliates from any and all
losses caused by or arising out of any violation of law by Purchaser in its
exercise of the aforesaid powers.
This General Assignment and Xxxx of Sale may be executed in any number
of counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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This General Assignment and Xxxx of Sale shall be governed by and
construed in accordance with the laws of the State of California applicable to a
contract executed and performed in such state without giving effect to the
conflicts of laws principles thereof, except that if it is necessary in any
other jurisdiction to have the law of such other jurisdiction govern this
General Assignment and Xxxx of Sale in order for this General Assignment and
Xxxx of Sale to be effective in any respect, then the laws of such other
jurisdiction shall govern this General Assignment and Xxxx of Sale to such
extent.
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
officers to execute this General Assignment and Xxxx of Sale on the day and year
first above written.
XXXXXXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxx X. El-Batrawi
---------------------------
Xxxx X. El-Batrawi
Chief Executive Officer
THE XXXXXX GROUP
By: /s/ Xxxx X. Xxx
---------------------------
Xxxx X. Xxx
President
GLOBAL LEISURE TRAVEL, INC.
By: /s/ Xxxx X. Xxx
---------------------------
Xxxx X. Xxx
President
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ASSUMPTION AGREEMENT
This ASSUMPTION AGREEMENT is entered into this 22nd day of June 1999 by
and between XxxxxxxXxxxxxxxxx.xxx, Inc., a Delaware corporation ("Purchaser"),
and Global Leisure Travel, Inc., a Washington corporation ("GLTI") and The
Xxxxxx Group, a Washington corporation and a wholly owned subsidiary of GLTI
("Xxxxxx" and together with GLTI, the "Seller").
WHEREAS, Purchaser and Seller have entered into a Term Sheet (the "Term
Sheet"), pursuant to which Seller has agreed to sell, transfer, convey, assign
and deliver to Purchaser and Purchaser has agreed to purchase from Seller
substantially all of the assets of Xxxxxx and any assets of GLTI used or held
for use by GLTI in connection with the conduct of Xxxxxx'x business relating to
the computer hardware and software known as the "Contour System" or "Contour"
and comprising the Seller's business (the "Business") of providing travel
related technology services to third parties utilizing Xxxxxx'x rights under
that certain Contour System Software License, Customization and Support
Agreement (the "License Agreement") between Xxxxxx and Fourth Dimension
Software, and Purchaser has agreed, in partial consideration therefor, to assume
certain obligations in connection therewith by executing this Assumption
Agreement (capitalized terms used but not defined herein shall have the
meanings, if any ascribed thereto in the General Assignment and Xxxx of Sale
dated as of the date hereof (the "Xxxx of Sale")); and
WHEREAS, pursuant to Section IV.D of the Term Sheet, Purchaser is
required to execute and deliver to Seller this Agreement whereby Purchaser
assumes such obligations.
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Purchaser hereby undertakes and
agrees from and after the date hereof, subject to the limitations contained
herein, to assume and to pay, perform and discharge when due the following
liabilities, as the same shall exist on the date hereof (the "Assumed
Liabilities"), and no others: (i) all obligations of Seller with respect to
accounts payable to FDS; (ii) all obligations of Seller under the Personal
Property Leases arising and to be performed on or after the Closing Date, and
excluding any such obligations arising or to be performed prior to the date
hereof; (iii) all obligations of Seller under the Business Contracts and
Business Licenses arising and to be performed on or after the date hereof, and
excluding any such obligations arising or to be performed prior to the date
hereof; (iv) all obligations of the Seller to pay for and complete and in
process technology development being conducted by FDS; and (v) all obligations
of the Seller under the License Agreement, including the obligation to pay the
royalty payment to FDS as required under the License Agreement.
Except for the Assumed Liabilities, Purchaser shall not assume by
virtue of this Assumption Agreement or the Xxxx of Sale or the transactions
contemplated hereby or thereby, and shall have no liability for, any liabilities
of Seller (including, without limitation, those related to the Business) of any
kind, character or description whatsoever (the "Retained Liabilities"). Seller
shall discharge in a timely manner or shall make adequate provision for all of
the Retained Liabilities, provided that Seller shall have the ability to
contest, in good faith, any such claim of liability asserted in respect thereof
by any person other than Purchaser and its affiliates. Nothing contained herein
shall require Purchaser to pay or discharge any debts or obligations expressly
assumed hereby so long as Purchaser shall in good faith contest or cause to be
contested the amount or validity thereof.
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Other than as specifically stated above or in the Xxxx of Sale,
Purchaser assumes no debt, liability or obligation of Seller, including without
limitation the Retained Liabilities, by this Assumption Agreement, and it is
expressly understood and agreed that all debts, liabilities and obligations not
assumed hereby by Purchaser shall remain the sole obligation of Seller, its
successors and assigns.
For and in consideration of the mutual covenants contained herein and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, GLTI hereby commits to subscribe to and use the Contour
System for a period of not less than * * *. For the * * *, GLTI hereby commits
to pay to Purchaser a transaction fee of * * * per transaction for such usage,
with a minimum monthly fee of * * *, payable on the fifth day of each calendar
month, commencing on * * *. This contract will be re-negotiated for the
remaining * * *.
No person other than Seller, its successors and assigns shall have any
rights under this Assumption Agreement or the provisions contained herein.
This Assumption Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
This Assumption Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to a contract
executed and performed in such state without giving effect to the conflicts of
laws principles thereof, except that if it is necessary in any other
jurisdiction to have the law of such other jurisdiction govern this Assumption
Agreement in order for this Assumption Agreement to be effective in any respect,
then the laws of such other jurisdiction shall govern this Assumption Agreement
to such extent.
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IN WITNESS WHEREOF, the undersigned have caused their duly authorized
officers to execute this Assumption Agreement on the day and year first above
written.
XXXXXXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxx X. El-Batrawi
Xxxx X. El-Batrawi
Chief Executive Officer
THE XXXXXX GROUP
By: /s/ Xxxx X. Xxx
Xxxx X. Xxx
President
GLOBAL LEISURE TRAVEL, INC.
By: /s/ Xxxx X. Xxx
Xxxx X. Xxx
President
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EXHIBIT 10.28
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is entered into as of December 29, 1999,
by and between Global Leisure Travel, Inc., a Washington corporation
("Purchaser"), XxxxxxxXxxxxxxxxx.xxx, Inc., a Delaware corporation ("Seller")
and The Xxxxxx Group, Inc., a Washington corporation and a wholly owned
subsidiary of Seller ("Xxxxxx").
RECITALS
WHEREAS, Seller owns all of the issued and outstanding shares of
capital stock of Xxxxxx, which it acquired from Purchaser; and
WHEREAS, Seller desires to sell such shares to Purchaser and Purchaser
desires to purchase all such shares from Seller at the purchase price and upon
the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
promises contained herein and for other good and valuable consideration, Seller
and Purchaser hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following
definitions shall apply:
"Agreement" means this Stock Purchase Agreement by and between
Purchaser and Seller, as it may be amended or supplemented from time to time
pursuant to the provisions hereof.
"Stock" means all of the issued and outstanding shares of
capital stock of The Xxxxxx Group, Inc. to be sold to the Purchaser.
SECTION 2. PURCHASE OF STOCK
2.1 PURCHASE OF STOCK. Subject to the terms and conditions of
this Agreement and on the basis of and in reliance upon the representations,
warranties, covenants and agreements set forth herein, Seller hereby sells to
Purchaser, and Purchaser hereby purchases from Seller all of the Stock in
exchange for the Purchase Price (as defined in Section 2.2). Seller hereby
agrees to promptly deliver the certificate(s) evidencing the Stock to Purchaser.
2.2 PURCHASE PRICE. For the purposes of this Agreement, the
"Purchase Price" shall be Three Million Dollars ($3,000,000). The Purchase Price
shall be paid in one of the following three manners or a combination of any of
these three manners, as agreed to by Seller: (i) payment in cash by Purchaser;
(ii) assumption by Purchaser of outstanding debt of Seller; and/or (iii)
repayment of Seller's debt by Purchaser.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF SELLER. In order to
induce Purchaser to enter into this transaction, Seller represents and warrants
as follows:
a. Organization and Standing. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Xxxxxx is a corporation duly organized, validly existing and in good
standing under the laws of the State of Washington.
b. Corporate Power. Seller has all necessary corporate power
and authority to execute, deliver and perform this Agreement, and has all
requisite corporate power and authority to sell the Stock hereunder and to carry
out the transactions contemplated hereby.
c. Stock. Upon transfer, the Stock will be duly authorized,
validly issued, fully paid and nonassessable, and issued in accordance with
applicable laws.
3.2. REPRESENTATION AND WARRANTIES OF PURCHASER. In order to
induce Seller to enter into this transaction, Purchaser represents and warrants
as follows:
a. Organization and Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Washington.
b. Capitalization. Purchaser is a corporation, not formed for
purposes of purchasing the Stock, with total assets in excess of US $5 million.
c. Corporate Power. Purchaser has all necessary power and
authority to execute, deliver and perform this Agreement and the transactions
contemplated hereby.
d. Restriction on Transfer. Purchaser hereby acknowledges and
agrees that the Stock has not been registered under the Securities Act of 1933,
as amended (the "Act"), or qualified with the securities regulatory agency of
any state and may not be resold or otherwise disposed of unless registered under
the Act or qualified with the securities regulatory agency of any state which
has jurisdiction over any such transfer or unless an exemption from such
registration or qualification is available. Purchaser will transfer the Stock
only in accordance with the applicable requirements of all federal and state
securities laws. Purchaser acknowledges that the certificate(s) evidencing the
Stock will bear a legend regarding restriction on transfer.
e. Investment. Purchaser is purchasing the Stock for its own
account, for investment purposes only, and not for the account of any other
person, and not with a view to, or for offer or sale in connection with, any
distribution, assignment or resale to others or to fractionalization in whole or
in part.
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f. Risk. Purchaser recognizes that investment in the Stock
involves substantial risks, and it has taken full cognizance of and understands
all of the risk factors related to the purchase of the Stock and its knowledge
of Xxxxxx and experience in financial and business matters is such that it is
capable of evaluating the risks of an investment in the Stock. Purchaser is able
to bear the substantial economic risks of an investment in Xxxxxx for an
indefinite period of time, has no need for liquidity in such investment, and at
the present time, could afford a complete loss of such investment.
g. Due Diligence. Purchaser acknowledges that all documents,
records and books pertaining to this investment have been made available for
inspection by Purchaser. Purchaser has had a reasonable opportunity to ask
questions of and receive answers from representatives of Seller and of Xxxxxx
concerning the investment and all such questions have been answered to the full
satisfaction of Purchaser.
SECTION 4. GENERAL
4.1. GOVERNING LAW. This Agreement, and the legal relations
between the parties with respect hereto, shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts made
and performed in such state without regard to conflict of law doctrines.
4.2. HEADINGS. The descriptive heading of the Sections of this
Agreement are for convenience only and do not constitute a part of this
Agreement.
4.3. ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding of the parties hereto, and incorporates all prior
and contemporaneous discussions, agreements and understanding between the
parties with respect to the subject matter hereof.
4.4. COUNTERPARTS. This Agreement and any amendment hereto may
be executed in one or more counterparts and by different parties in separate
counterparts. Such counterparts shall constitute one and the same agreement and
shall become effective when the counterparts have been signed by each party and
delivered to the other party.
4.5. ATTORNEY'S FEES. In the event of any action by any party
arising under or out of, in connection with or in respect of the Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, costs and
expenses incurred in such action.
4.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of both Purchaser and Seller contained in or made
pursuant to this Agreement shall survive the execution and delivery of this
Agreement.
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4.7. MODIFICATION. Neither this Agreement, nor any provisions
hereof, shall be waived, modified, changed, discharged, terminated, revoked or
canceled except by an instrument in writing signed by the party against whom any
change, discharge or termination is sought.
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IN WITNESS WHEREOF, the undersigned have caused this Stock
Purchase Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized of the date first written above.
GLOBAL LEISURE TRAVEL, INC.
By: ________________________
Name:
Title:
XXXXXXXXXXXXXXXXX.XXX, INC.
By: ________________________
Name:
Title:
THE XXXXXX GROUP, INC.
By: ________________________
Name:
Title:
EXHIBIT 10.29
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED PURSUANT TO THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND SUCH
SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE SAME
ARE REGISTERED AND QUALIFIED IN ACCORDANCE WITH THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, OR AN EXEMPTION FROM SUCH REGISTRATION AND
QUALIFICATION IS AVAILABLE.
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is entered into
as of the 25th day of November, 1999, by Ultimate Holdings, Ltd., a Bermuda Ltd.
(the "Purchaser"), and XxxxxxxXxxxxxxxxx.xxx, Inc., a Delaware corporation (the
"Company").
WHEREAS: The Company would like to borrow from the Purchaser up to
USD$5,000,000 for use in connection with the Company's business; and the
Purchaser is willing to lend up to USD$5,000,000 to the Company, on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
SECTION 1 ISSUANCE OF SECURITIES.
SECTION 1.1 AUTHORIZATION. The Company has duly authorized (a)
the issuance to the Purchaser of a Promissory Note, in the aggregate principal
amount of up to Five Million Dollars ($5,000,000) (the "Note") payable on March
31, 2001, and (b) the issuance of a warrant or warrants to purchase 15,000
shares of the Company's common stock, par value $.001 per share (the "Common
Stock"), for each $100,000 loaned by the Purchaser through the purchase of the
Note, at an exercise price per share of Common Stock issuable upon the exercise
of the warrant(s) equal to $7.00 per share, (the "Warrants") and together with
the Note and the Common Stock issuable upon exercise of the Warrants (the
"Securities").
SECTION 1.2 PURCHASE AND SALE OF THE SECURITIES. In reliance
upon the representations of the Company contained in Section 1.6 and of the
representations of the Purchaser contained in Section 1.7, and subject to the
terms and conditions set forth herein, the Company shall sell to the Purchaser
and the Purchaser shall purchase from the Company at the Closings (as defined in
Section 1.5) the Securities, in consideration for the payment (a portion of
which may have occurred prior to the Closing) by the Purchaser to the Company of
up to Five Million Dollars ($5,000,000) (the "Purchase Price").
SECTION 1.3 THE NOTE. The Note shall mature, shall bear
interest, shall be payable and shall be otherwise as provided in the form of
Note attached hereto as Exhibit A.
SECTION 1.4 THE WARRANTS. The Warrants shall be substantially
in the form attached hereto as Exhibit B.
SECTION 1.5 THE CLOSINGS. The initial closing of the purchase
and sale of the Securities (the "Initial Closing") shall be held at 12:00 noon,
Pacific Time on the next business day after the date hereof or such other date
and time as the parties hereto may mutually agree (the "Initial Closing Date").
Subsequent closings ("Subsequent Closings" and together with the Initial
Closing, the "Closings") shall take place at 12:00 p.m. Pacific Time on the
second business day following the date the Company shall deliver to the
Purchaser a borrowing request ("Subsequent Closing Dates"), provided that such
borrowing request, together with all prior borrowing requests that have been
funded, does not exceed USD$5,000,000 (the "Loan Commitment"). On the Initial
Closing Date, the Company will deliver to the Purchaser the Note and this
Agreement. On the Initial Closing Date and on each Subsequent Closing Date, the
Company shall deliver to the Purchaser certificates representing the number of
Warrants issuable to the Purchaser on such date. The Closings shall take place
at the principal executive offices of the Company, in Van Nuys, California or at
such other place or in such other manner as the parties hereto may mutually
agree.
SECTION 1.6 GENERAL PAYMENT PROVISIONS. (a) The Company will
make each payment when due under the Note or this Agreement not later than 12:00
noon, Pacific Time, on the date such payment becomes due and payable, in lawful
money of the United States of America, without set-off, deduction or
counterclaim, and in immediately available funds sent by wire transfer to the
Purchaser at the address to be provided by the Purchaser. Any payment received
by the Purchaser after such time shall be deemed to have been made on the next
following business day. Should any such payment become due and payable on a day
other than a business day, the maturity of such payment shall be the next
business day. Any amount received by the Purchaser, whether as an interest
payment, principal payment or principal prepayment from or on behalf of the
Company, shall be applied as follows in descending order of priority: (i) to all
previously invoiced costs, fees and expenses of the Purchaser (including
reasonable attorneys' fees) incurred in connection with this Agreement or in
enforcing any obligations of, or in collecting any payments from, any obligor
hereunder; (ii) to interest which has accrued on past due payments under the
Note; (iii) to interest that is currently due and payable under the Note; (iv)
to payment of principal under the Note currently due and payable; (v) to the
payment of past due principal under the Note; and (vi) to the prepayment of
principal due under the Note.
(b) Other than the payment of the Purchase Price at the
Closing pursuant to the terms of this Agreement, which payment is subject to the
terms and conditions hereof, and regardless of whether the Company has repaid
such amounts in whole or in part, the Purchaser will have no obligation
whatsoever to lend, advance or otherwise pay any other monies to or on behalf of
the Company.
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SECTION 1.7 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
COMPANY.
The Company makes the following representations and warranties
to the Purchaser as the date hereof, the Closing Date and the date of any
subsequent disbursement of funds.
(a) The Company is duly organized, validly existing and in
good standing under the laws of its state of formation and is duly qualified as
a foreign corporation in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification. The
Company has all requisite power to transact the business it transacts and
proposes to transact, to execute and deliver this Agreement, the Note and the
Warrants, and upon exercise of the Warrants in accordance with their terms, the
Common Stock issuable thereupon, and all other documents and agreements
contemplated hereby and thereby, and to perform the provisions hereof and
thereof and to consummate the transactions contemplated hereby and thereby.
(b) The execution, delivery and performance of this Agreement,
the Note, the Warrants and all other documents and agreements contemplated
hereby or thereby to be executed, delivered and performed by the Company, and
the consummation of the transactions contemplated hereby or thereby, have been
duly authorized and approved by the Company. This Agreement, the Note, the
Warrants and all other documents and agreements contemplated hereby or thereby
to be executed and delivered by the Company have been duly authorized, executed
and delivered by, and are the valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as may be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws or by legal or equitable principles relating to or limiting creditors'
rights generally.
(c) The authorized and issued capital stock of the Company are
set forth in Schedule 1.7(c). Except as set forth in Schedule 1.7(c) hereto,
there are no outstanding options, warrants or similar rights of any person to
acquire any of the capital stock of the Company, and the Company has no
contingent obligations to issue additional shares. Except as set forth in
Schedule 1.7(c) hereto, the Company is not subject to any obligation (contingent
or otherwise) to repurchase or otherwise acquire or retire any of its capital
stock or other securities or obligation evidencing the right of any holder
thereof to purchase any of its capital stock or other securities.
(d) Except as set forth in Schedule 1.7(d) hereto, the Company
has no knowledge of any fact that materially adversely affects, or could
reasonably be expected to materially adversely affect, the business, prospects,
properties, assets, operations or financial condition of the Company, or the
ability of the Company to perform its obligations under this Agreement, the
Note, or the Warrants.
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(e) The consummation of the transactions contemplated by this
Agreement, the Note and the Warrants, and the performance of the terms and
provisions of this Agreement, the Note and the Warrants, will not (i)
contravene, result in any breach of, or constitute a default under any
indenture, mortgage, deed of trust, bank loan or credit agreement, corporate
charter, by-laws or other material agreement or instrument to which the Company
is a party or by which the Company or any of its properties is bound, (ii)
conflict with or result in a breach of any of the terms, conditions or
provisions of any order of any court, arbitrator or federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (collectively, "Governmental Person")
applicable to the Company or (iii) violate any material provision of any statute
or other rule or regulation of any Governmental Person applicable to the
Company.
(f) No consent, approval or authorization of, or registration,
filing or declaration with, any person or entity is required for the transfer or
valid delivery of the Securities or for the performance by the Company of this
Agreement, the Note or the Warrants, other than the filings, registrations or
qualifications under securities laws or that may be required to be made or
obtained in connection with the offer, transfer, sale or delivery of the
Securities or any interest therein.
(g) Upon issuance against payment of the purchase price
therefor, including payment of the exercise price of the Warrants in accordance
with their terms, the Purchaser will acquire good and marketable title to the
Securities free and clear of all covenants, conditions, restrictions, liens,
pledges, charges, encumbrances, options and adverse claims or rights of any kind
whatsoever.
(h) Neither the Company nor anyone acting on its behalf has
offered the Securities, or any interest or participation therein, for sale to or
solicited any offer to buy the Securities, or any interest or participation
therein, from, or otherwise approached or negotiated in respect thereof with,
any person other than the Purchaser, and its partners, officers, affiliates and
representatives. Neither the Company nor anyone acting on its behalf has taken
or will take any action that would require the offer, issuance or sale of the
Securities or any interest or participation therein to be registered under
Section 5 of the Securities Act of 1933, as amended. The Company has not
authorized or appointed any person to act on its behalf in connection with the
offering of the Securities.
(i) No part of the proceeds from the sale of the Securities
hereunder will be used, directly or indirectly, for the purpose of buying or
carrying any "margin stock" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System (12 CFR part 221), or for the purpose of
buying or carrying or trading in any securities under such circumstances as to
involve the Company in a violation of Regulation X of said Board (12 CFR part
224) or to involve any broker or dealer in a violation of Regulation T of said
Board (12 CFR part 220). The assets of the Company do not include any margin
stock, and the Company does not have any present intention of acquiring any
margin stock.
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(j) The Company is not an investment company subject to
registration under the Investment Company Act of 1940, as amended.
(k) Except as described in the Company's documents filed with
the Securities and Exchange Commission, there are no material (i) actions, suits
or legal, equitable, arbitrative or administrative proceedings pending, or to
the knowledge of the Company, threatened against the Company or (ii) judgments,
injunctions, writs, rulings or orders by any Governmental Person against the
Company or its directors or officers.
SECTION 1.8 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser represents, warrants and covenants to the
Company as of the date hereof, the Closing Date, the date of any subsequent
disbursement of funds, and the date of any transfer or exercise of the
Securities:
(a) The Purchaser has all requisite power to execute and
deliver this Agreement and any other related documents and to perform the
provisions hereof and thereof and to consummate the transactions contemplated
hereby and thereby.
(b) The execution, delivery and performance of this Agreement
and any other related documents and the consummation of the transactions
contemplated hereby or thereby, have been duly authorized and approved by the
Purchaser. This Agreement has been duly authorized, executed and delivered by,
and is the valid and binding obligation of, the Purchaser enforceable against
the Purchaser in accordance with its terms, except as may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws or by legal or equitable principles relating to or limiting creditors'
rights generally.
(c) The Purchaser is an "accredited investor" within the
meaning of Regulation D under the Securities Act, and is acquiring the Note, the
Warrants and the Common Stock for investment for its own account, and not with a
view to distribution subject, nevertheless, to any requirement of law that the
disposition of its property shall at all times be within its control. If the
Purchaser is an entity funded for the purposes of purchasing the Securities, the
Purchaser further represents and warrants that each of its constituents is an
accredited investor. The Purchaser has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of purchasing the Securities. The Purchaser is aware that it may be
required to bear the economic risk of an investment in the Securities for an
indefinite period, and it is able to bear such risk for an indefinite period.
The Purchaser acknowledges (i) that the Securities being acquired by it are not
being registered under the Securities Act on the grounds that (A) such
Securities do not constitute securities subject to registration under the
Securities Act or (B) such issuance is exempt from registration under Section
4(2) of the Securities Act as not involving any public offering, or (C) such
issuance is exempt from registration under Regulation D and (ii) that the
Company's reliance on such exemptions is predicated in part on the
representations made to the Company by the Purchaser in this Section 1.8.
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SECTION 2 CONDITIONS TO OBLIGATIONS OF THE PURCHASER. The obligation of
the Purchaser to purchase and pay for the Securities on each Closing Date or on
the date of any subsequent disbursement of funds shall be subject to the
satisfaction on or before such Closing Date of the conditions hereinafter set
forth:
SECTION 2.1 PROCEEDINGS SATISFACTORY. All proceedings taken on
or prior to such date in connection with the issuance of the Securities and the
consummation of the transaction contemplated hereby and all documents and papers
relating thereto shall be satisfactory in form and substance to the Purchaser
and its counsel.
SECTION 2.2 REPRESENTATIONS TRUE. All representations and
warranties of the Company contained herein shall be true and correct in all
respects on and as of such date with the same effect as though such
representations and warranties had been made on and as of such date and the
Company shall have performed in all respects all agreements on its part required
to be performed under this Agreement on or prior to such date.
SECTION 2.3 THE PURCHASE BY THE PURCHASER PERMITTED BY
APPLICABLE LAWS. The sale by the Company and the payment for the Securities to
be purchased by the Purchaser (i) shall not be prohibited by any applicable law
or governmental regulation, release, interpretation or opinion, (ii) shall not
subject the Purchaser to any penalty under or pursuant to any applicable law or
governmental regulation, and (iii) shall be permitted by the laws and
regulations of the jurisdictions to which the Purchaser is subject.
SECTION 2.4 EXECUTION AND DELIVERY OF DOCUMENTS. The Purchaser
shall have received the following, duly executed and delivered and in form and
substance satisfactory to the Purchaser and its counsel:
a) this Agreement;
b) the Note in the form of Exhibit A hereto;
c) the Warrants to be issued on such Closing
Date;
d) such other documents and information as the
Purchaser may reasonably request in
connection herewith
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SECTION 3 COVENANTS.
SECTION 3.1 COVENANTS OF THE COMPANY. The Company covenants
and agrees that:
(A) CORPORATE EXISTENCE. The Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence in accordance with the rights (charter and statutory),
licenses and franchises of the Company; provided, however, that the foregoing
shall not restrict any merger involving the Company, as long as the Company is
the surviving corporation.
(B) TAXES. The Company will pay prior to delinquency all
taxes, assessments and governmental levies that may be imposed upon the Company,
except as contested in good faith and by appropriate proceedings.
(C) COMPLIANCE WITH LAWS. The Company will comply in all
respects with all applicable laws, statutes and regulations of any Governmental
Person, a violation of which would have a material adverse effect on the
financial condition, operations, business, profits, prospects or properties of
the Company or the validity or enforceability of this Agreement, the Note, or
the Warrants, or any of the transactions contemplated hereby or thereby.
(D) PAYMENT OF THE NOTE. The Company will pay the principal of
and interest on the Note on the dates and in the manner provided in such
instrument and this Agreement. The obligation of the Company described in the
preceding sentence is absolute and unconditional, irrespective of any tax or
accounting treatment of such obligation including without limitation any
documentary stamp, transfer, ad valorem or other taxes assessed by any
jurisdiction in connection with this transaction.
(E) PAYMENT OF EXPENSES. In the event the transactions
contemplated by this Agreement are consummated, the Company will promptly pay to
the Purchaser all reasonable costs and out-of-pocket expenses of Purchaser,
including without limitation their reasonable attorneys' fees, incurred in
connection with the negotiation, preparation, execution and delivery of this
Agreement, the Note and the Warrants, and defense or enforcement costs related
thereto.
(F) STAY, EXTENSION AND USURY LAWS. The Company agrees (to the
extent it may lawfully do so) that it will not at any time insist upon, plead or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive the
Company from paying all or a portion of the principal of, or interest on, the
Note as contemplated herein, wherever enacted, now or at any time hereinafter in
force, or that may materially affect the covenants or the performance of this
Agreement in any manner inconsistent with the provisions of this Agreement. The
Company expressly waives all benefit or advantage of any such law. If a court of
competent jurisdiction prescribes that the Company may not waive its rights to
take the benefit or advantage of any stay or extension law or any usury law or
other law in accordance with the prior sentence, then the obligation to pay
interest on the Note will be reduced to the maximum legal limit under applicable
law governing the interest payable in connection with such Note, and any amount
of interest paid by the Company that is deemed illegal shall be deemed to have
been a prepayment of principal on the Note.
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(G) LIMITATION ON ACTIVITIES. The Company will not, and shall
not permit any of its 50% or greater owned subsidiaries to, engage in any
business or investment activities other than those necessary for, incident to,
connected with or arising out of the Company's principal activities in the
marketing, multimedia and internet industries.
(H) LIMITATIONS ON TRANSACTIONS WITH AFFILIATES. The Company
will not make any payment to or investment in, or enter into any transaction
with, any Affiliate, including without limitation the purchase, sale or exchange
of property or the rendering of any service, except transactions entered into
with Affiliates (a) prior to the date hereof, (b) contemplated under this
Agreement, (c) in the ordinary course of business, (d) on terms and conditions
substantially similar to those that the Company would have received in an "arm's
length" transaction with a third party and (e) related to the Company's
principal activities. For purposes of this Agreement, "Affiliate" shall mean any
other person controlling or controlled by or under common control with such
specified person. For the purposes of this definition, "control" when used with
respect to any specified person means the power to direct the management and
policies of such person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
(I) SUBORDINATED INDEBTEDNESS. The Company will not purchase,
redeem, retire or otherwise acquire for value, or set apart any money for a
sinking, defeasance or other analogous fund for, the purchase, redemption,
retirement or other acquisition of, or make any voluntary payment or prepayment
of the principal of or interest on, or any other amount owing in respect of, any
Subordinated Indebtedness, except for regularly scheduled (but not accelerated)
payments of principal and interest in respect of such Subordinated Indebtedness
required pursuant to the instruments evidencing such Subordinated Indebtedness;
provided, however, that no payment of principal or interest made pursuant to
acceleration of any Indebtedness or made with respect to Indebtedness that does
not amortize principal evenly over the terms of the Indebtedness shall be
permitted hereby. For purposes of this paragraph (i), "Subordinated
Indebtedness" means, other Indebtedness (a) for which the Company and/or any of
its subsidiaries is directly, primarily, contingently or otherwise obligated and
(ii) which has not, by its terms, been made expressly senior or prior to the
obligations of the Company under this Agreement on terms, and pursuant to
documentation containing other terms (including interest, amortization,
covenants and events of default), in form and substance to which the Purchaser
has consented in writing. For purposes of this paragraph (i), "Indebtedness"
means, for any person (without duplication): (a) obligations created, issued or
incurred by such person for borrowed money (whether by loan, the issuance and
sale of debt securities or the sale of property to another person subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
from such person); (b) obligations of such person to pay the deferred purchase
or acquisition price of property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business; (c) Indebtedness of others secured by a lien on the
property of such person, whether or not the respective indebtedness so secured
has been assumed by such person; (d) obligations of such person in respect of
letters of credit or similar instruments issued or accepted by banks and other
financial institutions for the account of such person; (e) capital lease
obligations of such person; and (f) Indebtedness of others guaranteed by such
person.
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SECTION 3.2 MAINTENANCE OF PROPERTIES.The Company will maintain,
preserve, protect and keep its properties in good repair, working order and
condition (ordinary wear and tear and obsolescence or consideration excepted),
and make necessary and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly conducted at all
times consistent with past practices of the Company.
SECTION 4. EVENTS OF DEFAULT; REMEDIES
SECTION 4.1 EVENTS OF DEFAULT DEFINED; ACCELERATION OF
MATURITY. If any of the following events ("Events of Default") shall occur and
be continuing (for any reason whatsoever and whether it shall be voluntary or
involuntary or by operation of law or otherwise):
(a) Default shall be made in the payment of the principal of,
or interest on, the Note when and as the same shall become due and payable,
whether at stated maturity, by acceleration, upon demand, upon a mandatory
prepayment due date, or otherwise;
(b) Default shall be made in the performance or observance of
any covenant, agreement or condition contained herein or in the Note, and such
default shall have continued for a period of fifteen (15) business days;
(c) The Company shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of all or a substantial part of its property and
assets, (ii) be generally unable to pay its debts as such debts become due,
(iii) make a general assignment for the benefit of its creditors, (iv) commence
a voluntary case under the United States Bankruptcy Code or similar law or
regulation (as now or hereafter in effect), (v) file a petition seeking to take
advantage of any other law providing for the relief of debtors, (vi) fail to
controvert in a timely or appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under such Bankruptcy Code or
other law or regulation, (vii) dissolve, (viii) take any corporate action under
any applicable law analogous to any of the foregoing, or (ix) take any corporate
action for the purpose of effecting any of the foregoing;
(d) A proceeding or case shall be commenced, without the
application or consent of the Company in any court of competent jurisdiction,
seeking (i) the liquidation, reorganization, dissolution, winding up or
composition or readjustment of its debts, (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of it or for all or any substantial
part of its assets, or (iii) similar relief in respect of the Company, under any
law providing for the relief of debtors, and such proceeding or case shall
continue undismissed, or unstayed and in effect, for a period of sixty (60)
days; or an order for relief shall be entered in an involuntary case under the
United States Bankruptcy Code or other similar law or regulation, against the
Company; or action under the laws of any jurisdiction affecting the Company
analogous to any of the foregoing shall be taken with respect to the Company and
shall continue unstayed and in effect for any period of sixty (60) days;
(e) Final judgment for the payment of money shall be rendered
by a court of competent jurisdiction against the Company and the Company shall
not discharge the same or provide for its discharge in accordance with its
terms, or procure a stay of execution thereof within sixty (60) days from the
date of entry thereof and within said period of sixty (60) days, or such longer
period during which execution of such judgment shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal, and
such judgment together with all other such judgments shall exceed in the
aggregate US$500,000; or
(f) Any representation or warranty made by the Company in this
Agreement or in any instrument delivered hereunder or pursuant hereto or in
connection with any provision hereof shall be false or incorrect in any material
respect as of the date on which it was made or is deemed to have been made; then
(x) upon the occurrence of any Event of Default described in subsection (c) or
(d) the unpaid principal amount of the Note, together with the interest accrued
thereon and all other amounts payable by the Company hereunder, shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by the Company or (y) upon the occurrence of any other Event of Default,
the Purchaser may, by notice to the Company, declare the unpaid principal amount
of the Note to be, and the same shall forthwith become, due and payable,
together with the interest accrued thereon and all other amounts payable by the
Company hereunder.
SECTION 4.2 SUITS FOR ENFORCEMENT. If any Event of Default
shall have occurred and be continuing, the Purchaser may proceed to protect and
enforce its rights against the Company, either by suit in equity or by action at
law, or both, whether for the specific performance of any covenant or agreement
contained in this Agreement or in aid of the exercise of any power granted in
this Agreement, or, the Purchaser may proceed to enforce the payment by the
Company of all sums due upon the Note or to enforce any other legal or equitable
right of the Purchaser.
The Company covenants that, if it shall default in the making
of any payment due under the Note or in the performance or observance of any
agreement contained in this Agreement, it will pay to the Purchaser such further
amounts, to the extent lawful, to cover any reasonable costs and expenses of
collection or of otherwise enforcing their respective rights, including without
limitation the reasonable counsel fees and costs and expenses incurred in
connection with such collection. The obligations set forth in this paragraph
will survive the payment in full of the Note.
SECTION 4.3 REMEDIES CUMULATIVE. No remedy herein conferred
upon the Purchaser is intended to be exclusive of any other remedy and each and
every such remedy will be cumulative and will be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise.
SECTION 4.4 REMEDIES NOT WAIVED. No course of dealing between
the Company and any other person and no delay or failure in exercising any
rights hereunder or under the Note in respect thereof shall operate as a waiver
of any rights of the Purchaser.
SECTION 5 TAXES.
The Company will pay all taxes (including interest and
penalties), other than taxes imposed on the income of the Purchaser which may be
payable in respect of the execution and delivery of this Agreement or of the
execution and delivery of (but not the subsequent transfer of or interest or
principal payable under) the Note or of any amendment of, or waiver or consent
under or with respect to, this Agreement or of the Note and will save the
Purchaser and all subsequent holders of the Note harmless against any loss or
liability resulting from nonpayment or delay in payment of any such tax.
SECTION 6 MISCELLANEOUS.
SECTION 6.1 INDEMNIFICATION. The Company agrees to indemnify,
defend and hold harmless the Purchaser, and its successors, assigns, heirs,
subsidiaries, affiliates and all of the officers, directors, employees, partners
and agents (including attorneys and accountants) of each of the aforementioned
persons or entities, and each of them, from and against any and all losses,
claims, damages, liabilities, expenses, demands, causes of action, suits, debts,
obligations, rights, promises, acts, agreements and damages of any kind or
nature whatsoever, whether at law or in equity, whether known or unknown,
foreseen or unforeseen, heretofore or hereafter arising out of, relating to,
connected with or incidental to the failure of any representation or warranty
made by the Company in this Agreement, the Note or the Warrants or the failure
of the Company to comply in all material respects with the covenants contained
in this Agreement, the Note or the Warrants, or agreements contemplated hereby
or thereby.
SECTION 6.2 PRIVATE PLACEMENT; LEGENDS. The Purchaser
acknowledges and agrees that the Securities have not been registered under the
Securities Act and, to the extent they constitute securities subject to
registration under Section 5 of the Securities Act, may not be offered or sold
unless registered under the Securities Act, or an exemption from such
registration requirements is available. The certificates or instruments
representing or evidencing the Securities shall bear a legend in substantially
the following form, unless counsel to the Company shall have advised the Company
that such legend is no longer needed:
The securities [represented/evidenced] by this [instrument/certificate]
have not been registered under the Securities Act of 1933, as amended
(the "Act"), or any state securities law, and such securities may not
be sold, transferred or otherwise disposed of unless the same are
registered and qualified in accordance with the Act and any applicable
state securities laws, or in the opinion of counsel reasonably
satisfactory to the Company such registration and qualification are not
required under the Act and applicable state securities law.
SECTION 6.3 RELIANCE ON AND SURVIVAL OF REPRESENTATIONS. All
representations, warranties, covenants and agreements of the Company herein will
be deemed to be material and to have been relied upon by the Purchaser and will
survive the execution and delivery of this Agreement, the Note and the Warrants.
SECTION 6.4 SUCCESSORS AND ASSIGNS. This Agreement will bind
and inure to the benefit of and be enforceable by the Company, the Purchaser and
each of their respective successors and assigns. The Purchaser shall be
permitted to transfer the Note in accordance with its terms and the terms of
this Agreement and in accordance with applicable restrictions under applicable
federal and state securities laws; provided, however, that upon any assignment
of the Note that results in more than one Note being outstanding, the rights of
all holders of Notes to enforce any right, take any enforcement action or do any
other thing or action with respect to any Basic Document shall only be done upon
the consent or action of the holders of not less than 66-2/3% in aggregate
principal amount of all Notes outstanding, which action, if taken, shall bind
the holders of all Notes.
SECTION 6.5 NOTICES. All notices and other communications
provided for in this Agreement shall be in writing and delivered by registered
or certified mail, postage prepaid, or delivered by overnight courier (for next
Business Day delivery) or telecopied, addressed as follows, or at such other
address as any of the parties hereto may hereafter designate by notice to the
other parties given in accordance with this Section 6.5:
1) if to the Company:
c/o Genesis Xxxxxxxxxx.xxx, Inc.
Fourth Floor
0000 Xxxxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Ramy El-Batrawi
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy of any notice to:
Nida & Xxxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
2) if to the Purchaser:
Ultimate Holdings, Ltd.
13 Parliament St.
Xxxxxxxx, XX 12
Bermuda
Any such notice or communication shall be deemed to have been duly given on the
fifth (5th) day after being so mailed, the next business day after delivery by
overnight courier, when received when sent by telecopy or upon receipt when
delivered personally.
SECTION 6.6 COUNTERPARTS. 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. Signatures may be
exchanged by telecopy, with original signatures to follow. Each of the parties
hereto agrees that it will be bound by its own telecopied signature and that it
accepts the telecopied signatures of the other parties to this Agreement. The
original signature pages shall be forwarded to the Company or its counsel and
the Company or its counsel will provide all of the parties hereto with a copy of
the entire Agreement.
SECTION 6.7 AMENDMENTS. This Agreement may only be amended by
a writing duly executed by all of the parties hereto.
SECTION 6.8 SEVERABILITY. If any term or provision of this
Agreement or any other document executed in connection herewith shall be
determined to be illegal or unenforceable, all other terms and provisions hereof
and thereof shall nevertheless remain effective and shall be enforced to the
fullest extent permitted by applicable law.
SECTION 6.9 GOVERNING LAW. EXCEPT TO THE EXTENT THAT THE LAW
OF ANOTHER JURISDICTION IS EXPRESSLY SELECTED IN A DOCUMENT, THIS AGREEMENT, THE
NOTE, THE WARRANTS AND ALL AMENDMENTS, SUPPLEMENTS, WAIVERS AND CONSENTS
RELATING HERETO OR THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
SECTION 6.10 ENTIRE AGREEMENT. This Agreement and the Note
contain the entire agreement of the parties hereto with respect to the
transactions contemplated hereby and thereby and supersede all previous oral and
written, and all previous contemporaneous oral negotiations, commitments and
understandings.
SECTION 6.11 FURTHER ASSURANCES. Each party agrees promptly to
execute and deliver such documents and to take such other acts as are reasonably
necessary to effectuate the purposes of this Agreement.
SECTION 6.12 HEADINGS. The headings contained herein are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 6.13 WAIVER OF JURY TRIAL. EACH PARTY HEREBY AGREES TO
WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT AND THE NOTE OR AGREEMENTS RELATING TO THE NOTE OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT, THE NOTE OR ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
NOTE.
SECTION 6.14 ASSIGNMENTS. The Company may not assign its
rights or obligations hereunder or under the Note without the prior written
consent of the Purchaser.
IN WITNESS WHEREOF, the parties hereto execute this Agreement
as of the date first set forth above.
PURCHASER:
ULTIMATE HOLDINGS, LTD.
By: _____________________
Name:
Title:
THE COMPANY:
XXXXXXXXXXXXXXXXX.XXX, INC.
By: _____________________
Name:
Title:
EXHIBIT A
FORM OF NOTE
THE SECURITIES EVIDENCED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW, AND
SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE
SAME ARE REGISTERED AND QUALIFIED IN ACCORDANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS, OR IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE BORROWER SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED UNDER THE ACT
AND APPLICABLE STATE SECURITIES LAW.
PROMISSORY NOTE
$500,000,000 November 25, 0000
Xxx Xxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, XxxxxxxXxxxxxxxxx.xxx, Inc., a Delaware
corporation, (the "Borrower"), hereby jointly and severally promises to pay to
the order of Ultimate Holdings, Ltd., a Bermuda Ltd. ("Holder"), at Holder's
principal office, the principal sum of Five Million Dollars ($5,000,000) or such
aggregate amount as shall have been disbursed hereunder (this "Note"), in lawful
money of the United States of America and in immediately available funds,
together with interest on the unpaid principal amount for the period commencing
on the date or dates of disbursement shown on Schedule 1 attached hereto (some
which may precede the date hereof) at the rate of eleven and one-half percent
(11.5%) per annum. The Maturity Date of this Note shall be March 31, 2001.
This Note is subject to the further terms and conditions in
the Securities Purchase Agreement of even date herewith, between the Borrower
and the Holder, pursuant to which this Note was issued (the "Securities Purchase
Agreement"). Except as otherwise indicated, capitalized terms used herein have
the meanings ascribed to them in the Securities Purchase Agreement.
This Note may be prepaid in full or in part, at any time
without penalty. Principal and interest are payable in lawful money of the
United States of America.
Upon the occurrence of an Event of Default and without demand
or notice, Holder will have the option to declare the entire balance of
principal together with all accrued interest thereon immediately due and payable
and to exercise all rights and remedies available to it under any or all of the
Documents. Upon the occurrence of an Event of Default (and so long as such Event
of Default shall continue), the entire balance of principal together with all
accrued interest thereon shall bear interest at the then applicable rate plus
two percent (2%). No delay or omission on the part of Holder hereof in
exercising any right under this Note or the Securities Purchase Agreement shall
operate as a waiver of such right. The application of this default rate shall
not be interpreted or deemed to extend any cure period set forth in the
Securities Purchase Agreement or otherwise limit any of Holder's remedies
hereunder or thereunder.
The Borrower hereby waives diligence, presentment, protest and
demand, notice of protest, dishonor and nonpayment of this Note and expressly
agrees that, without in any way affecting the liability of the Borrower
hereunder, Holder may extend any maturity date or the time for payment of any
installment due hereunder, accept security, release any party liable hereunder
and release any security now or hereafter securing this Note. The Borrower
further waives, to the full extent permitted by law, the right to plead any and
all statutes of limitations as a defense to any demand on this Note, or on any
deed of trust, security agreement, lease assignment, guaranty or other
agreement, if any, now or hereafter securing this Note.
If this Note is not paid when due or if any Event of Default
occurs, the Borrower promises to pay all costs of enforcement and collection,
including but not limited to, Holder's reasonable attorneys' fees, whether or
not any action or proceeding is brought to enforce the provisions hereof.
Every provision of this Note is intended to be severable. In
the event any term or provision hereof is declared by a court of competent
jurisdiction to be illegal or invalid for any reason whatsoever, such illegality
or invalidity shall not affect the balance of the terms and provisions hereof,
which terms and provisions shall remain binding and enforceable.
It is the intent of the Borrower and Holder in the execution
of this Note and all other instruments securing this Note that the loan
evidenced hereby be exempt from the restrictions of applicable usury laws of any
jurisdiction. In the event that, for any reason, it should be determined that
any applicable usury law of any jurisdiction is applicable to this Note, Holder
and the Borrower stipulate and agree that none of the terms and provisions
contained herein or in the Securities Purchase Agreement shall ever be construed
to create a contract for use, forbearance or detention of money requiring
payment of interest at a rate in excess of the maximum interest rate permitted
to be charged by such applicable laws. In such event, if any Holder of this Note
shall collect monies which are deemed to constitute interest which would
otherwise increase the effective interest rate on this Note to a rate in excess
of the maximum rate permitted to be charged by the applicable laws of such
jurisdiction, all such sums deemed to constitute interest in excess of such
maximum rate shall, at the option of Holder, be credited to the payment of the
sums due hereunder or returned to the Borrower.
In this Note, the singular shall include the plural and the
masculine shall include the feminine and neuter gender, and vice versa, if the
context so requires.
This Note shall be governed by, and construed in accordance
with, the law of the State of California applicable to contracts made and
performed within the State of California.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
executed by its duly authorized officer.
BORROWER:
XXXXXXXXXXXXXXXXX.XXX, INC.,
a Delaware corporation
By: ________________________
Xxxx X. El-Batrawi
President
SCHEDULE 1
DATE AND AMOUNT OF DISBURSEMENTS
DATE AMOUNTS
EXHIBIT B
FORM OF WARRANT
WARRANT
THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF ARE SUBJECT TO A SECURITIES PURCHASE AGREEMENT DATED AS OF
NOVEMBER 25, 1999, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY AND WILL BE FURNISHED TO THE HOLDER ON REQUEST TO THE SECRETARY OF THE
COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY
STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT IN COMPLIANCE
WITH THE SECURITIES ACT OF 1933, AS AMENDED, THE RULES AND REGULATIONS
PROMULGATED THEREUNDER AND ALL APPLICABLE STATE SECURITIES LAWS.
No. _______ Dated: _______________
Warrant
XXXXXXXXXXXXXXXXX.XXX, INC.
This Warrant certifies that Ultimate Holdings, Ltd., a Bermuda Ltd., is
the registered holder of a warrant (the "Warrant") to purchase 750,000 shares of
common stock, par value $.001 per share (the "Common Stock"), of
XxxxxxxXxxxxxxxxx.xxx, Inc., a Delaware corporation (the "Company"), at an
exercise price per share of Common Stock issuable upon the exercise of this
Warrant equal to $7.00 per share (the "Exercise Price").
SECTION 1. Exercise; Expiration; Redemption.
To exercise this Warrant, the Warrant holder must elect and sign the
exercise election attached to this Warrant certificate and deliver to the
Company (a) this Warrant certificate and (b) cash or a check payable to the
Company for the Exercise Price for the Warrant.
Notwithstanding the payment provisions set forth in the paragraph
above, the Warrant holder may elect to receive Warrant Shares equal to the value
of this Warrant (or any portion thereof vested but unexercised), through a
cashless exercise, by surrender of this Warrant at the principal office of the
Company together with notice of such election, in which event the Company shall
issue to the Warrant holder that number of Warrant Shares computed using the
following formula:
X = Y(A-B)
A
Where: X = the number of Warrant Shares to be issued to Warrant
holder;
Y = the number of Warrant Shares purchasable under this
Warrant at the time of such calculation;
A = the Fair Market Value of one share of Common Stock; and
B = the Exercise Price at the date of such calculation.
For purposes of this paragraph, the Fair Market Value of one
share of Common Stock shall mean (i) if the Company's Common Stock is
listed on any established stock exchange or national market system,
including, without limitation, the national market quotation system of
NASDAQ, the closing price of one share of the Company's Common Stock
(or the closing bid, if no sales were reported) as quoted on such
exchange or system (or the exchange with the greatest volume of trading
in the Company's Common Stock) on the last market trading day prior to
the day of determination, as reported in the Wall Street Journal or
such other source as the Board of Directors of the Company may deem
reliable; (ii) if the Company's Common Stock is quoted on NASDAQ, but
not the national market thereof, or regularly quoted by a recognized
securities dealer but selling prices are not quoted, the mean between
the high and low asked prices for the Company's Common Stock on the
last market trading day prior to the day of determination, as reported
in the Wall Street Journal, or (iii) as otherwise reasonably determined
by the Board of Directors of the Company, acting in good faith.
This Warrant shall not be exercised by any holder hereof after 5:00
p.m., Los Angeles time on the day preceding such date which is three years after
the date of this Warrant, the date and time of the expiration of this Warrant.
To the extent that this Warrant has not been exercised by the date and time of
its expiration, this Warrant shall become void and all rights hereunder and all
rights in respect hereof shall cease as of such time.
This Warrant shall be exercisable at the election of any holder
thereof, either in full or from time to time in part (but in no event for less
than one whole Warrant Share) and, in the event that a certificate evidencing
this Warrant is exercised in respect of fewer than all of the Warrant Shares
issuable on such exercise at any time prior to the date of expiration of this
Warrant, a new Warrant certificate evidencing the remaining Warrant with respect
to whole Warrant Shares issuable upon exercise will be issued. No adjustment
shall be made for any dividends on any Warrant Shares issuable upon exercise of
this Warrant.
The Company covenants that all Warrant Shares which may be issued upon
exercise of this Warrant will, upon issue, be fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and security interests
with respect to the issue thereof.
The Company will pay all documentary stamp taxes attributable to the
issuance of Warrant Shares upon the exercise of this Warrant; provided, however,
that the Company shall not be required to pay any tax or taxes which may be
payable in respect of any transfer involved in the issue of any Warrant
certificates or any certificates for Warrant Shares in a name other than that of
the registered holder of this Warrant certificate surrendered upon the exercise
of this Warrant, and the Company shall not be required to issue or deliver such
Warrant certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
The Company shall not be required to issue fractional Warrant Shares on
the exercise of this Warrant. If any fraction of a Warrant Share would be
issuable on the exercise of this Warrant (or specified portion hereof), the
Company shall pay an amount in cash equal to the Exercise Price on the day
immediately preceding the date this Warrant certificate is presented for
exercise, multiplied by such fraction.
SECTION 2. Transfer or Exchange.
This Warrant and any Warrant Shares may only be transferred by the
holder in accordance with the registration requirements of the Securities Act of
1933, as amended (the "Securities Act") or an exemption therefrom.
Subject to compliance with the preceding paragraph, the Company shall
from time to time register the transfer of this Warrant certificate upon the
records to be maintained by it for that purpose, upon surrender hereof
accompanied (if so required by it) by a written instrument or instruments of
transfer in form satisfactory to the Company, duly executed by the registered
holder hereof or by the duly appointed legal representative thereof or by a duly
authorized attorney and an opinion of counsel in form and substance satisfactory
to the Company that such transfer may be effected under the Securities Act. Upon
any such registration of transfer, a new Warrant certificate(s) shall be issued
to the transferee(s) and the surrendered Warrant certificate shall be canceled
by the Company.
This Warrant certificate may be exchanged at the option of the holder
hereof, when surrendered to the Company at its office for another Warrant
certificate or other Warrant certificates of like tenor and representing a
Warrant with respect to a like aggregate number of Warrant Shares. A Warrant
certificate surrendered for exchange shall be canceled by the Company.
Subject to the payment of any taxes as provided herein, upon an
exercise of this Warrant, the Company shall issue and cause to be delivered to
or upon the written order of the holder and in such name or names as the Warrant
holder may designate, a certificate or certificates for the number of full
Warrant Shares issuable upon the exercise of this Warrant. This Warrant shall be
deemed to have been exercised and any person so designated to be named therein
shall be deemed to have become a holder of record of such Warrant Shares as of
the date of the surrender of this Warrant certificate (and payment of the
Exercise Price or cashless exercise election).
The Company may deem and treat the registered holder hereof as the
absolute owner of this Warrant (notwithstanding any notation of ownership or
other writing hereon made by anyone), for the purpose of any exercise hereof, of
any distribution to the holder hereof, and for all other purposes, and the
Company shall not be affected by any notice to the contrary. Nothing contained
in this Warrant certificate shall be construed prior to the date of surrender of
the Warrant certificate for exercise in accordance with the terms hereof as
conferring upon the holder hereof the right to vote or to consent or to receive
notice as stockholders in respect of the meetings of stockholders or the
election of directors of the Company or any other matter, or any rights
whatsoever as stockholders of the Company.
SECTION 3. Mutilated, Lost, Stolen or Destroyed Warrant Certificate.
In case this Warrant certificate shall be mutilated, lost, stolen or
destroyed, the Company may in its discretion issue in exchange and substitution
for and upon cancellation of the mutilated Warrant certificate, or in lieu of
and substitution for the Warrant certificate lost, stolen or destroyed, a new
Warrant certificate of like tenor and representing an equivalent Warrant, but
only upon receipt of evidence satisfactory to the Company of such loss, theft or
destruction of such Warrant certificate and indemnity, if requested, also
satisfactory to the Company.
SECTION 4. Reservation of Shares for Issuance.
The Company will at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued common
stock, for the purpose of enabling it to satisfy any obligation to issue Warrant
Shares upon exercise of this Warrant, the maximum number of Warrant Shares which
may then be issuable upon the exercise of this Warrant. The Company or, if
appointed, the transfer agent for the common stock and every subsequent transfer
agent for any of the Company's capital securities issuable upon the exercise of
any of the rights of purchase aforesaid will be irrevocably authorized and
directed at all times to reserve such number of authorized shares of common
stock as shall be required for such purpose. The Company will keep a copy of
this Warrant certificate on file with any such transfer agent for any of the
Company's capital securities issuable upon the exercise of the rights of
purchase represented by this Warrant certificate.
SECTION 5. Effect of Subdivision, Reclassification, Merger, Etc.
If the outstanding common stock shall be subdivided into a greater
number of shares of common stock, the Exercise Price in effect at the opening of
business on the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and, conversely, if the outstanding
common stock shall be combined into a smaller number of shares of common stock,
the Exercise Price in effect at the opening of business on the day following the
day upon which such combination becomes effective shall be proportionately
increased, such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.
If any of the following events occur: (i) any reclassification or
change of the outstanding shares of common stock (other than a change in par
value, or from par value to no par value, or from no par value to par value, or
as a result of a subdivision or combination), (ii) any consolidation, merger or
combination of the Company with another corporation or company as a result of
which holders of common stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange for
such common stock, or (iii) any sale or conveyance of the properties and assets
of the Company as, or substantially as, an entirety to any other corporation or
company as a result of which holders of common stock shall be entitled to
receive stock, securities or other property or assets (including cash) with
respect to or in exchange for such common stock, then the Company or the
successor or purchasing corporation or company, as the case may be, shall
providing that this Warrant shall be convertible into the kind and amount of
shares of stock and other securities or property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of Warrant Shares
issuable upon exercise of this Warrant (assuming, for such purposes, a
sufficient number of authorized shares of common stock available to issue upon
exercise of the entirety of this Warrant) immediately prior to such
reclassification, change, consolidation, merger, combination, sale or conveyance
assuming such holder of common stock did not exercise his or her rights of
election, if any, as to the kind or amount of securities, cash or other property
receivable upon such consolidation, merger, statutory exchange, sale or
conveyance (provided that, if the kind or amount of securities, cash or other
property receivable upon such consolidation, merger, statutory exchange, sale or
conveyance is not the same for each share of common stock in respect of which
such rights of election have not been exercised ("non-electing share"), then,
for the purposes of paragraph, the kind and amount of securities, cash or other
property receivable upon such consolidation, merger, statutory exchange, sale or
conveyance for each non-electing share shall be deemed to be the kind and amount
so receivable per share of common stock by a plurality of the non-electing
shares). In any such case, the revenue calculation necessary for exercise of
this Warrant shall be calculated on the basis of the business entity or assets
so consolidated, merged, exchanged, sold or conveyed, whether in whole or
incorporated into another business entity, and it shall be the responsibility of
such successor or acquiror entity to perform such calculation, which calculation
shall be conclusive and binding on the holder of this Warrant. If, in the case
of any such reclassification, change, consolidation, merger, combination, sale
or conveyance, the stock or other securities and assets receivable thereupon by
a holder of common stock includes shares of stock or other securities and assets
of a corporation other than the successor or purchasing corporation or company,
as the case may be, in such reclassification, change, consolidation, merger,
combination, sale or conveyance, then an acknowledgment of the obligations under
this paragraph shall be executed by such other corporation or company. The above
provisions of this paragraph shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances.
Upon any adjustment of the Exercise Price pursuant hereto, the Company
shall promptly thereafter cause to be given to the registered holder of this
Warrant certificate at its address appearing on the Warrant register maintained
by the Company written notice of such adjustments by first-class mail, postage
prepaid. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
SECTION 6. Miscellaneous.
This Warrant certificate and Warrant shall be deemed to be a contract
made under the law of the State of California and for all purposes shall be
construed in accordance with the internal law of said State.
Nothing in this Warrant certificate shall be construed to give to any
person or company other than the Company and the registered holder of this
Warrant certificate any legal or equitable right, remedy or claim under this
Warrant certificate; but this Warrant certificate shall be for the sole and
exclusive benefit of the Company and the registered holder of this Warrant.
IN WITNESS WHEREOF, XxxxxxxXxxxxxxxxx.xxx, Inc., a Delaware
corporation, has caused this Warrant certificate to be signed by its duly
authorized officer.
Dated:
XXXXXXXXXXXXXXXXX.XXX, INC., a
Delaware corporation
By: __________________________
Ramy El-Batrawi, President
Election for Exercise
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant certificate, to receive ______ Shares of common
stock par value $.001 per share and herewith tenders payment for such Shares in
the amount of $___________ in accordance with the terms of this Warrant
certificate. The undersigned requests that a certificate for such shares be
registered in the name of ___________________, whose address is
___________________________________ and that such shares be delivered to
___________________ whose address is _______________________________________. If
said number of shares is less than all of the shares of common stock purchasable
hereunder, the undersigned requests that a new Warrant certificate representing
the remaining balance of such whole Shares be registered in the name of
_____________________, whose address is _________________________________ and
that such Warrant certificate be delivered to______________ whose address is
________________________________________________.
Signature: _________________________
Date:
Signature Guaranty:
SCHEDULE 1.6(c)
Outstanding Options, Warrants or Obligations
XxxxxxxXxxxxxxxxx.xxx, Inc., a Delaware corporation has the following
list of authorized and issued capital stock and options and warrants:
Authorized capital stock 25,000,000
Issued capital stock 5,315,000
Outstanding Options & Warrants
Employee Options 250,000
Director Options 100,000
Consultant Options 50,000
Acquisitions 50,000
Investor Warrants 750,000
Loan Warrants 300,000
Consultant Warrants 200,000
Loan Warrants 163,750
----------
Total: 1,863,750
SCHEDULE 1.6(d)
Material Adverse Effects
None.