Exhibit 3.4
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "Agreement"), dated as of June 16, 2000,
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is entered into by and between Xxx.xxx International Inc., a corporation
organized under the laws of Ontario, Canada (the "Company"), with offices at
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0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxx, Xxxxxx, X0X0X0 and Acqua
Wellington Value Fund Ltd., a limited liability company organized under the laws
of the Commonwealth of the Bahamas, with offices c/o Mees Pierson Fund Services
(Bahamas) Ltd., Xxxxxxxx Xxxxxxxx Centre, East Bay Street, P. O. Box SS-6238,
Nassau, Bahamas (the "Buyer"), for the purchase and sale of shares of the common
shares, no par value per share (the "Common Stock"), of the Company by the
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Buyer, in the manner, and upon the terms, provisions and conditions set forth in
this Agreement.
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to the Buyer and
Buyer shall purchase shares of Common Stock and warrants to purchase
additional shares of Common Stock (the "Warrants"); and
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WHEREAS, such purchase and sale will be made in reliance upon the
provisions of Section 4(2) and Rule 506 of Regulation D ("Regulation D") of the
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United States Securities Act of 1933, as amended and regulations promulgated
thereunder (the "Securities Act"), or upon such other exemption from the
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registration requirements of the Securities Act as may be available with respect
to any or all of the purchases of Common Stock to be made hereunder.
NOW, THEREFORE, in consideration of the representations, warranties
and agreements contained herein and other good and valuable consideration, the
receipt and legal adequacy of which is hereby acknowledged by the parties, the
Company and the Buyer hereby agree as follows:
1. Purchase Price.
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(a) Upon the following terms and subject to the conditions
contained herein, the Buyer hereby purchases 900,790 shares of the Company's
Common Stock (the "Shares") and Warrants to purchase 360,316 shares of Common
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Stock (the "Warrants"; together with the shares "Units") at a per Unit price of
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$2.3313 and for an aggregate purchase price for all Units of $2,100,000 (the
"Purchase Price").
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(b) The Company has authorized and has reserved and covenants to
continue to reserve, free of preemptive rights and other similar contractual
rights of stockholders, a sufficient number of its authorized but unissued
shares of its Common Stock, to effect the issuance of the Shares and exercise of
the Warrants. Any shares of Common Stock issuable upon exercise of the Warrants
(and such shares when issued) are herein referred to as the "Warrant Shares".
The Shares, the Warrants and the Warrant Shares are sometimes collectively
referred to as the "Securities".
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(c) The closing under this Agreement shall take place at the offices
of the Xxxxxx Xxxxxx LLP, The Chrysler Building, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 at 1:00 p.m. (eastern time) upon the satisfaction of each of the
conditions set forth in Section 5 hereof (the "Closing Date").
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2. Representations, Warranties and Covenants of the Buyer. The Buyer
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represents and warrants to the Company, and covenants for the benefit of the
Company, as follows:
(a) This Agreement has been duly authorized, validly executed and
delivered by the Buyer and is a valid and binding agreement and obligation of
the Buyer enforceable against the Buyer in accordance with its terms, subject to
limitations on enforcement by general principles of equity and by bankruptcy or
other laws affecting the enforcement of creditors' rights generally, and the
Buyer has full power and authority to execute and deliver this Agreement and the
other agreements and documents contemplated hereby and to perform its
obligations hereunder and thereunder;
(b) The Buyer has received and carefully reviewed copies of the Public
Documents (as hereinafter defined). The Buyer understands that no Federal,
state, local or foreign governmental body or regulatory authority has made any
finding or determination relating to the fairness of an investment in any of the
Securities and that no Federal, state, local or foreign governmental body or
regulatory authority has recommended or endorsed, or will recommend or endorse,
any investment in any of the Securities. The Buyer, in making the decision to
purchase the Shares and the Warrants, has relied upon independent investigation
made by it and has not relied on any information or representations made by
third parties;
(c) The Buyer understands that the Shares and the Warrants are being
offered and sold to it in reliance on specific provisions of Federal and state
securities laws and that the Company is relying upon the truth and accuracy of
the representations, warranties, agreements, acknowledgments and understandings
of the Buyer set forth herein for purposes of qualifying for exemptions from
registration under the Securities Act, and applicable state securities laws;
(d) The Buyer is an "accredited investor" as defined under Rule 501 of
Regulation D promulgated under the Securities Act;
(e) The Buyer (i) is and will be acquiring the Shares and the Warrants
for such Buyer's own account, and not with a view to any resale or distribution
of the Shares or the Warrants in whole or in part, in violation of the
Securities Act or any applicable securities laws and (ii) has not offered or
sold any of the Securities and has no present intention or agreement to divide
any of the Securities with others for purposes of selling, offering,
distributing or otherwise disposing of any of the Securities;
(f) The offer and sale of the Securities is intended to be exempt from
registration under the Securities Act, by virtue of Section 4(2) and Regulation
D promulgated under the Securities Act. The Buyer understands that the Shares
and the Warrants purchased
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hereunder have not been, and may never be, registered under the Securities Act;
that none of the Securities can be sold, transferred, assigned, pledged or
subjected to any lien or security interest unless they are first registered
under the Securities Act and such state and other securities laws as may be
applicable or in the opinion of counsel for the Company an exemption from
registration under the Securities Act is available (and then the Securities may
be sold, transferred, assigned, pledged or subjected to a lien or security
interest only in compliance with such exemption and all applicable state and
other securities laws); and that the following legends will be placed upon the
certificate for the Securities:
" THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS AND MAY NOT BE EXERCISED BY OR
ON BEHALF OF ANY U.S. PERSON, OR SOLD, TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS REGISTERED UNDER THAT ACT AND UNDER APPLICABLE STATE
SECURITIES LAWS OR XXX.XXX INTERNATIONAL INC. (THE
"COMPANY") SHALL HAVE RECEIVED AN OPINION, IN FORM, SCOPE
AND SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY, OF
COUNSEL WHO IS REASONABLY ACCEPTABLE TO THE COMPANY THAT
REGISTRATION OF SUCH SECURITIES UNDER THAT ACT AND UNDER
THE PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES
LAWS IS NOT REQUIRED.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN QUALIFIED
FOR DISTRIBUTION AND SALE WITHIN THE PROVINCE OF ONTARIO,
CANADA AND MAY NOT BE DISTRIBUTED OR SOLD IN SUCH PROVINCE
OR TO A RESIDENT THEREOF FOR A PERIOD OF NINETY (90) DAYS
FOLLOWING THE DATE OF ISSUANCE OF THIS CERTIFICATE EXCEPT
(A) PURSUANT TO A PROSPECTUS FOR WHICH A RECEIPT HAS BEEN
ISSUED BY THE ONTARIO SECURITIES COMMISSION OR (B) PURSUANT
TO AN AVAILABLE EXEMPTION FROM SUCH PROSPECTUS
REQUIREMENT."
(g) The Buyer (i) has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Company; and (ii) recognizes that such Buyer's investment in
the Company involves a high degree of risk;
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(h) The Buyer is capable of evaluating the risks and merits of an
investment in the Securities by virtue of its experience as an investor and its
knowledge, experience, and sophistication in financial and business matters and
such Buyer is capable of bearing the entire loss of its investment in the
Securities; and
(i) The Buyer is neither a registered broker-dealer nor an affiliate
of a registered broker-dealer.
3. Representations, Warranties and Covenants of the Company. The Company
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represents and warrants to the Buyer, and covenants for the benefit of the
Buyer, as follows:
(a) The Company has been duly incorporated and is validly existing and
in good standing under the laws of the province of Ontario, Canada, with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as currently conducted, and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure to
register or qualify is not reasonably anticipated to have a Material Adverse
Effect. For purposes of this agreement, "Material Adverse Effect" shall mean
any effect on the business, results of operations, prospects, assets or
financial condition of the Company that is material and adverse to the Company
and its subsidiaries, taken as a whole and/or any condition, circumstance, or
situation that would prohibit the Company from entering into and performing any
of its obligations under this Agreement in any material respect;
(b) The Company has furnished the Buyer with copies of the Company's
most recent Annual Report on Form 20-F (the "Form 20-F") filed with the
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Commission, its Form 6-K for the quarterly period ended March 30, 2000 (the
"Form 6-K"; collectively with the Form 20-F, the "Public Documents"). The
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Public Documents at the time of their filing did not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements contained therein, in light of the circumstances
under which they were made, not misleading provided, however, that the Form 6-K
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does not contain, and is not required to contain, a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" section;
(c) The Shares have been duly authorized by all necessary corporate
action and, when paid for by the Buyer and issued in accordance with the terms
hereof, the Shares shall be validly issued, will be fully paid and non-
assessable. The Warrant and the Warrant Shares have been duly authorized by all
necessary corporate action and, when the Warrant Shares are issued in accordance
with the terms of the Warrant, such Warrant Shares shall be validly issued,
fully paid and non-assessable, and the Buyer shall be entitled to all rights
accorded to a holder of Common Stock;
(d) This Agreement has been duly authorized, validly executed and
delivered on behalf of the Company and is a valid and binding agreement and
obligation of the Company enforceable against the Company in accordance with its
terms, subject to limitations on
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enforcement by general principles of equity and by bankruptcy or other laws
affecting the enforcement of creditors' rights generally, and the Company has
full power and authority to execute and deliver this Agreement and the other
agreements and documents contemplated hereby and to perform its obligations
hereunder and thereunder;
(e) The execution and delivery of this Agreement and the Registration
Rights Agreement, the issuance of any of the Securities and the consummation of
the transactions contemplated by this Agreement and the Registration Rights
Agreement by the Company, will not (i) conflict with or result in a breach of or
a default under any of the terms or provisions of, (A) the Company's certificate
of incorporation or by-laws, or (B) of any material provision of any indenture,
mortgage, deed of trust or other material agreement or instrument to which the
Company is a party or by which it or any of its material properties or assets is
bound, any material provision of any law, statute, rule, regulation, or any
existing applicable decree, judgment or order by any court, Federal or state
regulatory body, administrative agency, or other governmental body having
jurisdiction over the Company, or any of its material properties or assets or
(ii) result in the creation or imposition of any material lien, charge or
encumbrance upon any material property or assets of the Company or any of its
subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of their
property or any of them is subject except in the case of clauses (i)(B) or (ii)
for any conflict, breach, or default or any lien, charge, or encumbrance which
is reasonably likely to have a Material Adverse Effect;
(f) The sale and issuance of the Shares in accordance with the terms
and on the basis of the representations and warranties set forth in this
Agreement will be exempt from the registration requirements of the Securities
Act.
(g) Except as disclosed on Schedule 4(g) hereto, and based upon the
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representations and warranties of the Buyer set forth herein, no authorization,
approval, filing with or consent of any governmental body is required for the
issuance and sale of the Securities to the Buyer pursuant to this Agreement;
(h) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending against or
affecting the Company, or any of its properties, which would reasonably be
anticipated to result in a Material Adverse Effect;
(i) Subsequent to the dates as of which information is given in the
Public Documents, except as contemplated herein, the Company has not incurred
any material liabilities or material obligations, direct or contingent, or
entered into any material transactions not in the ordinary course of business;
(j) The Company has sufficient title and ownership of all trademarks,
service marks, trade names, copyrights, patents, trade secrets and other
proprietary rights ("Intellectual Property") necessary for its business as now
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conducted and as proposed to be conducted as described in the Public Documents
except for any of the foregoing, the absence of which would
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not reasonably be likely to result in a Material Adverse Effect and, to its
knowledge without any conflict with or infringement of the rights of others.
Except as set forth in the Public Documents, there are no material outstanding
options, licenses or agreements of any kind relating to the Intellectual
Property, nor is the Company bound by or party to any material options, licenses
or agreements of any kind with respect to the Intellectual Property of any other
person or entity;
(k) The Company has complied and will comply with all applicable
federal and state securities laws in connection with the offer, issuance and
sale of the Shares and the Warrants hereunder. Neither the Company nor anyone
acting on its behalf, directly or indirectly, has or will sell, offer to sell or
solicit offers to buy any of the Securities, or similar securities to, or
solicit offers with respect thereto from, or enter into any preliminary
conversations or negotiations relating thereto with, any person, or has taken or
will take any action so as to bring the issuance and sale of any of the
Securities under the registration provisions of the Securities Act and any other
applicable federal and state securities laws. Neither the Company nor any of
its affiliates, nor any person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with any of the Securities;
(l) Neither this Agreement or the Schedules hereto nor the
Registration Rights Agreement or Warrant contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements made herein or therein, in the light of the circumstances under which
they were made herein or therein, not misleading.
(m) The authorized capital stock of the Company and the shares thereof
issued and outstanding as of May 31, 2000 are set forth on Schedule 3(m)
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attached hereto. All of the outstanding shares of the Company's Common Stock
have been duly and validly authorized, and are fully paid and non-assessable.
Except as set forth in this Agreement, the Public Documents or on Schedule 3(m)
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attached hereto, as of May 31, 2000, no shares of Common Stock are entitled to
preemptive rights or registration rights and there are no outstanding options,
warrants, scrip, rights to subscribe to, call or commitments of any character
whatsoever relating to, or securities or rights convertible into, any shares of
capital stock of the Company. Furthermore, except as set forth in this
Agreement, in the Public Documents or on Schedule 3(m) as of the date hereof,
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there are no contracts, commitments, understandings, or arrangements by which
the Company is or may become bound to issue additional shares of the capital
stock of the Company or options, securities or rights convertible into shares of
capital stock of the Company. Except for customary transfer restrictions
contained in agreements entered into by the Company in order to sell restricted
securities, as of the date hereof, the Company is not a party to any agreement
granting registration rights to any person with respect to any of its equity or
debt securities. The Company is not a party to, and it has no knowledge of, any
agreement restricting the voting or transfer of any shares of the capital stock
of the Company. The offer and sale of all capital stock, convertible
securities, rights, warrants, or options of the Company issued prior to the
Closing complied with all applicable federal and state securities laws, and no
stockholder has a right of rescission or damages with respect thereto which is
reasonably likely to have a Material Adverse Effect. The Company has furnished
or made available to the Buyer true and correct copies of the
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Company's Certificate of Incorporation as in effect on the date hereof (the
"Certificate"), and the Company's Bylaws as in effect on the date hereof (the
"Bylaws").
4. Conditions Precedent: The obligations hereunder of both the Company
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and the Buyer to enter into this Agreement is subject to their satisfaction or
waiver, at or before the Closing, of each of the conditions set forth below.
These conditions are for the Company's and the Buyer's sole benefit
respectively, and they may waive their own rights at any time in their sole
discretion.
(a) The parties shall have executed and delivered this Agreement and
the Registration Rights Agreement.
(b) The Company shall have delivered certificates evidencing the
Shares and the Warrants to the Buyer.
(c) The Buyer shall have delivered to the Company immediately
available funds as payment in full of the Purchase Price for the Shares and the
Warrants.
(d) The Buyer shall have received a legal opinion in substantially the
form annexed hereto as Exhibit A.
5. Indemnification.
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(a) The Company hereby agrees to indemnify and hold harmless the Buyer
and its officers, directors, shareholders, employees, agents and attorneys
against any and all losses, claims, damages, liabilities and reasonable expenses
incurred by each such person in connection with defending or investigating any
such claims or liabilities, whether or not resulting in any liability to such
person, to which any such indemnified party may become subject, insofar as such
losses, claims, demands, liabilities and expenses arise out of or are based upon
any breach of any representation or warranty made by the Company in this
Agreement.
(b) The Buyer hereby agrees to indemnify and hold harmless the Company
and its officers, directors, shareholders, employees, agents and attorneys
against any and all losses, claims, damages, liabilities and expenses incurred
by each such person in connection with defending or investigating any such
claims or liabilities, whether or not resulting in any liability to such person,
to which any such indemnified party may become subject under the Securities Act,
or under any other statute, at common law or otherwise, insofar as such losses,
claims, demands, liabilities and expenses arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact made by the
Buyer, (ii) any omission or alleged omission of a material fact with respect to
the Buyer or (iii) any breach of any representation, warranty or agreement made
by the Buyer in this Agreement.
6. Governing Law; Consent to Jurisdiction. This Agreement shall be
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governed by and interpreted in accordance with the laws of the State of New York
without giving effect to the rules governing the conflicts of laws. Each of the
parties consents to the exclusive jurisdiction of
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the Federal courts whose districts encompass any part of the County of New York
located in the City of New York in connection with any dispute arising under
this Agreement and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such jurisdictions. Each party waives its
right to a trial by jury. Each party to this Agreement irrevocably consents to
the service of process in any such proceeding by the mailing of copies thereof
by registered or certified mail, postage prepaid, to such party at its address
set forth herein or its agent. Nothing herein shall affect the right of any
party to serve process in any other manner permitted by law.
7. Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand delivery, express overnight
courier, registered first class mail, or telecopier, initially to the address
set forth below, and thereafter at such other address, notice of which is given
in accordance with the provisions of this Section.
(a) if to the Company:
Xxx.xxx International Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx
X0X0X0
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn: Xxxx Xxxxxxxxx
with a copy to:
Gowlings
Xxxxxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxx
X0X 0X0
Attn: Xxxx X.X. Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
Xxxx Marks & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxxx, Esq.
Fax No.: (000) 000-0000
(b) if to the Buyer:
Acqua Wellington Value Fund Ltd.
c/o Mees Pierson Fund Services (Bahamas) Ltd.
Xxxxxxxx Xxxxxxxx Centre
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East Bay Street, P. O. Box SS-6238
Nassau, Bahamas
Attention: Xxxxxxx X.X. Xxxxx Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when receipt is
acknowledged, if telecopied; or when actually received or refused if sent by
other means.
8. Entire Agreement. This Agreement, the Registration Rights Agreement
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and the Warrants, when issued, constitutes the entire understanding and
agreement of the parties with respect to the subject matter hereof and
supersedes all prior and/or contemporaneous oral or written proposals or
agreements relating thereto all of which are merged herein. This Agreement may
not be amended or any provision hereof waived in whole or in part, except by a
written amendment signed by both of the parties.
9. Counterparts. This Agreement may be executed by facsimile signature
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and in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[end of page]
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IN WITNESS WHEREOF, this Agreement was duly executed on the date first
written above.
XXX.XXX INTERNATIONAL INC.
By:_______________________________________
Name: Xxxx Xxxxxxxxx
Title: Director, CEO and President
ACQUA WELLINGTON VALUE FUND LTD.
By:_______________________________________
Name:
Title:
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SCHEDULE 3(m)
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Authorized Capital Stock - An unlimited number of common shares, no par value
per share
Issued and Outstanding Capital Stock - 53,078,854 common shares
Total Options and Warrants Outstanding - 6,700,986/1/
The Company has issued certain warrants
that contain anti-dilution provisions, and as a result of these anti-dilution
provisions, the Company may become bound to issue additional shares of capital
stock.
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/1/ In addition, there is a warrant outstanding exercisable into an aggregate
of $1,000,000 of the Company's common shares, based on the market price of the
shares upon exercise of the warrant.
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