EXHIBIT 10.8
ENTRADE INC.
SUBSCRIPTION AND
INVESTMENT REPRESENTATION AGREEMENT
Entrade Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
ARTICLE 1
SUBSCRIPTION/JOINDER AND PURCHASE
1.1 Subscription. Subject to the terms and conditions hereof, each of
the undersigned "Subscribers" hereby subscribes for and agrees to purchase a
number of shares ("Shares") of the no par value common stock ("Common Stock") of
Entrade Inc., a Pennsylvania corporation ("Company"), equal to $2,500,000
divided by the Subscription Price. The Subscription Price shall be equal to the
lesser of $32.00 or the closing price of the Company's Common Stock on the New
York Stock Exchange on the trading day immediately preceding the Closing Date.
Subscriber's subscription is subject to acceptance by the Company, which
acceptance shall only be evidenced by the Company's execution of the Acceptance
of Subscription attached to and forming a part of this Agreement, and to the
extent provided therein.
1.2 Acceptance. Subscriber's Subscription shall only be accepted upon
the Company, executing the Acceptance
of Subscription attached to this Agreement.
1.3 Payment of Subscription Price. The Subscribers shall tender to the
Company the aggregate sum of $5,000,000.00 on the Closing Date. The Closing Date
shall occur on January 6, 2000 or on such later date as the parties mutually
agree. On or as soon as reasonably possible after the Closing Date, the Company
will deliver certificates evidencing the Shares to Subcribers.
1.4 Brokerage Fee. Shoreline Pacific Institutional Finance ("SPIF") is
acting as the broker for the Subscribers in arranging this Subscription and
Investment Agreement ("Agreement"). SPIF will receive a fee equal to 5% of the
aggregate Subscription Price of $5,000,000.00 (out of the proceeds). The
undersigned Subscribers understand that the information provided to them with
respect to the Company has not been independently verified by SPIF. Accordingly,
there is no representation by SPIF as to the completeness or accuracy of such
information. Each party hereto respectfully represents that no other brokers or
representatives were or are retained by them in connection with this
Subscription and Investment Agreement. Each party further agrees to hold the
other parties, their successors and assigns, harmless from the claims of any
other broker in connection with this Subscription and Investment Agreement for
the subscription and purchase of Shares to be purchased hereunder. The
provisions of this Section 1.4 shall survive the delivery of the Shares
contemplated herein.
ARTICLE 2
SUBSCRIBER REPRESENTATIONS AND
WARRANTIES AND INVESTOR AWARENESS
2.1 Subscriber Representations and Warranties. Each Subscriber makes
the following representations and warranties with the intent that the same may
be relied upon in determining its suitability to purchase the Shares of the
Company and with the understanding that the availability of exemptions from
registration of the offering may depend upon the accuracy of such
representations and warranties.
2.1.1 Knowledge of Terms and Conditions. The Subscriber has
received and read, examined, analyzed and reviewed a copy of the S.E.C.
Form 10-Q filed November 12, 1999 with the Securities and Exchange
Commission for the quarter ended September 30, 1999, Artra Group
Incorporated Proxy Statement/Prospectus dated August 20, 1999 and Form
8-K's dated October 6, 1999 and October 28, 1999 and Form 8-KA dated
December 2, 1999 (the "SEC Documents"). The Subscriber acknowledges
that the Subscriber has been offered the opportunity to obtain
additional information, to verify the accuracy of the information
contained in the SEC Documents, to evaluate the merits and risks of
this investment with independent advisers and to ask questions of the
Company and Xxxxxxx X. Xxxxxxxxxx, General Counsel, covering the terms
and conditions of the agreements and transactions contemplated by the
Company, and all such questions were satisfactorily answered. The
Subscriber acknowledges that it has not been furnished any other
offering literature or prospectus.
2.1.2 Not a Registered Offering. The Subscriber understands
that the offering of Shares to the Subscribers has not been and is not
being registered either with the U.S. Securities and Exchange
Commission ("SEC") or with the secretary of state of the state of
incorporation or place of business of the Subscriber, and are being
offered and sold pursuant to the exemption from registration provided
in Regulation D ("Regulation D") promulgated under the Securities Act
of 1933 by the SEC (the "1933 Act"), and limited offering exemptions
provided in the "Blue Sky" laws of the states of incorporation or place
of business of the Subscriber, and that no governmental agency has
recommended or endorsed the Shares or made any finding or determination
relating to the adequacy or accuracy of the Memorandum or the fairness
of an investment in the Company. Any representation to the contrary is
a criminal offense.
2.1.3 Risk Factors. The Subscriber understands and has
evaluated the risks involved in an investment in the Company. The
Subscriber recognizes that an investment in the Company involves a
substantial risk of loss by the Subscriber of its entire investment and
represents and warrants that the Subscriber is able to bear the risk of
this investment, including the loss of the Subscriber's entire
investment, and has sufficient knowledge and experience in financial
and business matters to be capable of evaluating the merits and risks
of this investment.
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2.1.4 Legal Ability; Purchase for Investment. Subscriber has
the legal ability to enter into this Subscription Agreement. The
Subscriber is subscribing for the Shares solely for its own account,
for investment purposes, and not with a view to, or with any intention
of, a distribution, sale, or subdivision of any Shares or for the
account of any other individual, corporation, firm, entity or person,
except in accordance with the requirements of the 1933 Act. Subscriber
represents and warrants to the Company that: (a) such Subscriber is a
limited partnership, duly organized, validly existing, and in good
standing under the law of the jurisdiction of its incorporation and
duly qualified and in good standing as a foreign limited partnership in
the jurisdiction of its principal place of business (if not organized
therein); (b) the Subscriber has full power and authority to execute
and agree to this Agreement and to perform its obligations hereunder
and all necessary actions by its partners or other persons necessary
for the due authorization, execution, delivery, and performance of this
Agreement by that Subscriber have been duly taken; (c) the Subscriber
has duly executed and delivered this Agreement; and (d) the
Subscriber's authorization, execution, delivery, and performance of
this Agreement does not conflict with (i) any law, rule or court order
applicable to that Subscriber, (ii) such Subscriber's articles of
incorporation or bylaws, or (iii) any other agreement or arrangement to
which such Subscriber is a party or by which it is bound.
2.1.5 Independent Investigation. In making its decision to
purchase the Shares that are herein subscribed for, the Subscriber has
relied solely upon independent investigations made by it. Except with
respect to the Company's representations in this Agreement, the
Subscriber is not relying on the Company or any of its respective
shareholders, members, managers, directors, officers, employees,
affiliates, legal counsel, agents or representatives with respect to
any risk of making an investment in the Company, or any tax or other
economic considerations involved in this investment. Except as set
forth herein, no representations or warranties or other statements have
been made to the Subscriber by the Company or any of its respective
shareholders, members, managers, directors, officers, employees,
affiliates, legal counsel, agents or representatives. In making the
decision whether to invest in the Shares described herein, the
Subscriber has relied solely on the information contained in this
Agreement.
2.1.6 Restrictions of Transfer. The Subscriber understands
that the Securities are characterized as "restricted securities" under
the 1933 Act and Rule 144 promulgated thereunder inasmuch as they are
being acquired from the Company in a transaction not involving a public
offering, and that under the 1933 Act and applicable regulations
thereunder such securities may be resold without registration under the
1933 Act only in certain limited circumstances. In this connection,
such Subscriber represents that such Subscriber is familiar with Rule
144 of the 1933 Act, as presently in effect, and understands the resale
limitations imposed thereby and by the 1933 Act. Such Subscriber
understands that the Company is under no obligation to register any of
the securities sold hereunder except as may be described in this
Agreement under Section 2.2.6.1. Any resale legend will be removed upon
1933 Act registration. The legend will read as follows:
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"The shares represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act"). The shares
have been acquired for investment and may not be sold, or otherwise
transferred, in the absence of an effective registration statement for
the shares under the Act or an opinion of counsel presented to the
Company prior to the proposed transaction that registration is not
required under the Act."
2.1.7 Accredited Investor. The Subscriber expressly represents
and warrants that it is an "accredited investor" as defined in Rule
501(a) of Regulation D under the 1933 Act.
2.1.8 Investment Representations. The Subscriber expressly
represents and warrants that:
2.1.8.1 the Subscriber has such knowledge and
experience in financial and business matters, in general, and
in investments similar to an investment in the Company, in
particular, that the Subscriber is capable of evaluating the
merits and risks of an investment in the Shares described
herein; and the Subscriber has obtained, in the Subscriber's
discretion, sufficient information from the Company to
evaluate the merits and risks of such investment;
2.1.8.2 the Subscriber is able to bear the economic
risk of the Subscriber's investment in the Company for an
indefinite period of time, including the risk of losing all of
the Subscriber's investment; and
2.1.8.3 by reason of the Subscriber's knowledge and
experience in business and financial matters, the Subscriber
has acquired the capacity to protect its own interest in
investments of this nature and is capable of evaluating the
risks, merits and other facets of this investment.
2.1.9 State of Residence. (Intentionally Deleted)
2.1.10 No Misrepresentations. Any information, representations
or warranties which the Subscriber has heretofore furnished or herein
furnishes to the Company with respect to its financial position and
business experience are correct and complete as of the date of this
Agreement, and if there should be any material change in such
information, representations or warranties prior to the Closing Date,
it will immediately inform the Company.
2.2 Company Representations, Warranties and Covenants. Effective
upon the Company's execution of the acceptance to this Agreement, the Company
makes the following representations and warranties to the Subscriber as of the
date hereof and as of the Closing Date:
2.2.1 Organization and Good Standing. The Company is duly
organized and existing under, and by virtue of, the laws of the State
of Pennsylvania and is in good standing under such laws. The Company
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has the requisite power as a corporation to own and operate its
properties and assets, and to carry on its business as presently
conducted.
2.2.2 Legal Power. The Company has all requisite power and
authority of a corporation to enter into this Agreement, and to carry
out and perform its obligations under this Agreement.
2.2.3 Authorization; No Conflicts. All action on the part of
the Company necessary for the issuance and sale of the Shares pursuant
hereto and for the execution, performance and delivery by the Company
of this Agreement has been taken. The execution, delivery and
performance by the Company of this Agreement and the issuance of the
Shares will not (i) violate (1) any provision of law applicable to the
Company, except that no representation or warranty is made with respect
to any so-called "blue sky laws" of any state, (2) its articles of
incorporation or other organizational documents, (3) any applicable
order of any court, agency or governmental authority specifically
naming the Company or (4) any material indenture, agreement or other
instrument to which it is a party or by which it or any of its material
assets or property is bound, (ii) be in conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a
default under any indenture, agreement or other instrument or (iii)
result in the creation or imposition of any lien, charge or encumbrance
of any nature whatsoever upon any of its property or assets. This
Agreement is a valid and binding obligation of the Company enforceable
against it in accordance with its terms except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of
general application relating to or affecting enforcement of creditors'
rights and rules or laws concerning equitable remedies.
2.2.4 Changes. Since the date of the last filing with the SEC,
to the best knowledge of the Company, after reasonable inquiry, there
has not been any (i) material adverse change in the business of the
Company, and (ii) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the business,
taken as a whole.
2.2.5 Valid Issuance. The Shares, when delivered pursuant to
this Agreement against receipt of the Subscription Price by the
Company, as provided herein, shall be validly issued and fully paid
Shares of the Company, and will be free of any liens and encumbrances
other than as a result of any actions by the Subscriber. The issuance
of the Shares is not subject to preemptive or other similar rights
which have not been waived.
2.2.6 "Piggyback" Registration.
2.2.6.1 Basic Right. At any time during the period
commencing on the issuance date of the Shares under this
Agreement ("Issue Date") and ending two years after the Issue
Date, the Company proposes to register any of its equity
securities under the Securities Act, other than in an offering
on Form S-8 or Form S-4 or any successor form, it shall at
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least 10 days prior to the filing of such registration
statement with the Securities and Exchange Commission (the
"Commission") give notice of its intention to do so to
Subscriber. If Subscriber notifies the Company within 5 days
of the date of the Company notice of filing a registration
statement of Subscriber's desire to include any Shares in such
proposed registration statement, the Company shall, subject to
the provisions of 2.2.6.2 below, include the Shares designated
by Subscriber in such registration statement. Anything in this
subparagraph 2.2.6.1 to the contrary notwithstanding, the
"piggyback" registration rights described herein shall be
available for exercise by Subscriber on one occasion only and,
after the exercise thereof in accordance with the provisions
set forth herein, the Company shall be under no further
obligation to give Subscriber the notice described in this
subparagraph 2.2.6.1 to include any of the Shares in any
subsequent registration statement.
(a) In connection with the registration
described in this Section, the Company agrees to take
all action necessary to facilitate the sale by the
Subscriber of the Shares, including furnishing to the
Subscriber such number of prospectuses reasonably
required by the Subscriber to dispose of its Shares,
using its best efforts to register or qualify the
Shares under the 1933 Act and applicable blue sky
laws and delivering underwriting agreements and other
documents customarily delivered by issuers in
connection with public offerings.
(b) With respect to the inclusion of Shares
in a registration statement pursuant to this Section,
all fees, costs and expenses of and incidental to
such inclusion shall be borne by the Company;
provided, however, that the Subscriber shall bear any
fees and disbursements of counsel retained by the
Subscriber (other than counsel also retained by the
Company).
(c) The Subscriber shall be entitled to
customary indemnification and rights of contribution
relating to the registration of the Shares.
2.2.6.2 Registration Requirements. The Company shall:
(a) No later than forty-five (45) days
following the Closing Date, prepare and file a
registration statement with the Commission pursuant
to Rule 415 under the Securities Act on such
appropriate form as the Company is eligible to use
under the Securities Act) covering the resale of the
Shares("Registration Statement"). Thereafter, the
Company shall use its best efforts to cause such
Registration Statement and other filings to be
declared effective prior to the end of the period
terminating one hundred twenty (120) days following
the Closing Date.
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(b) Prepare and file with the Commission
such amendments and supplements to such Registration
Statement and the prospectus used in connection with
Registration Statement as may be necessary to comply
with the provisions of the Act with respect to the
disposition of all securities covered by such
Registration Statement and notify the holders of the
Shares of the filing and effectiveness of such
Registration Statement and any amendments or
supplements.
(c) Furnish to each holder of such Shares
such copies of a current prospectus conforming with
the requirements of the Act, copies of the
Registration Statement, any amendment or supplement
thereto and any documents incorporated by reference
therein and such other documents as such holder of
such Shares may reasonably require in order to
facilitate the disposition of the Shares.
(d) Use its best efforts to register and
qualify the securities covered by such Registration
under such other securities or "Blue Sky" laws of
such jurisdictions as shall be reasonably requested
by each holder of such Shares; provided that the
Company shall not be required in connection therewith
or as a condition thereto to qualify to do business
or to file a general consent to service of process in
any such states or jurisdictions.
(e) Notify each holder of such Shares
immediately of the issuance by the Commission or any
state securities commission or agency of any stop
order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose. The Company shall use
its best efforts to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible time.
(f) Use its best efforts to list the Shares
with all securities exchanges(s) and/or markets on
which the Shares are then listed and prepare and file
any required filings with any exchange or market
where the Shares are traded.
(g) Bear all expenses incurred in connection
with such registration, qualification or compliance
with registration pursuant to this paragraph except
the holder of the Shares shall bear all underwriting
discounts and selling commissions applicable to the
sale of such Shares and all fees and disbursements of
counsel for such holders.
(h) Use its best efforts to keep such
registration effective until the earliest (i) of
January 6, 2002; (ii) all of the holders of such
Shares having completed the sales or distribution
described in the Registration Statement relating
thereto; or (iii) such Shares being able to be sold
under Rule 144(k) or any equivalent successor rule.
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(i) Notify each holder of such Shares
immediately in the event that the Registration
Statement has become stale or contains a material
misstatement or material omission.
The parties hereto agree to execute appropriate and
customary mutual indemnity agreements prior to the
effectiveness of any registration statements as may
be reasonably requested by either party.
2.2.6.3 Withdrawal of Registration Statement.
Notwithstanding the provisions of subparagraph 2.2.6.1 above,
the Company shall at all times have the absolute right to
elect not to file any proposed registration statement referred
to in Section 2.2.6.1, or to withdraw the same after the
filing but prior to the effective date thereof. In addition,
notwithstanding the provisions of subparagraph 2.2.6.1 above,
the Company may exclude from such registration statement all
or a portion of the Shares for which registration was
requested by Subscriber if, in the written opinion of the
Company's managing underwriter for any securities being sold
by the Company and registered on the same registration
statement as the Shares, if any, the inclusion of all or a
portion of such Shares, when added to the securities being
registered for sale by the Company, will exceed the maximum
amount of the Company's securities which can be marketed (i)
at a price reasonably related to their then current market
value, or (ii) without otherwise materially and adversely
affecting the entire offering. If less than all of the Shares
requested for inclusion in said registration statement are to
be excluded pursuant to the foregoing provision, the Shares
which are included shall be allocated among the selling
stockholders thereunder on a pro rata basis.
2.2.7 Qualifications. The Company is duly qualified as a
foreign corporation to do business and is in good standing in every
jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary other than those in
which the failure so to qualify would not have a Material Adverse
Effect. "Material Adverse Effect" means any adverse effect on the
business, operations, properties, prospects, or financial condition of
the entity with respect to which such term is used and which is
material to such entity and other entities controlling or controlled by
such entity taken as a whole, or any material adverse effect on the
transactions contemplated under this Agreement, or any other agreement
or document contemplated hereby or thereby.
2.2.8 No Violations. The business of the Company is not being
conducted in violation of any law, ordinance or regulations of any
governmental entity, except for violations which either singly or in
the aggregate do not and will not have a Material Adverse Effect. The
Company is not required under Federal, state, local or foreign law,
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rule or regulation to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency
in order for it to execute, deliver or perform any of its obligations
under this Agreement or issue and sell the Shares except as may be
stated elsewhere in this Agreement.
2.2.9 SEC Documents; Financial Statements. The Common Stock of
the Company is registered pursuant to Section 12(g) of the Securities
Act of 1934, as amended (the "Exchange Act"), and the Company has filed
all reports, schedules, forms, statements and other documents required
to be filed by it with the Commission pursuant to the reporting
requirements of the Exchange Act, including material filed pursuant to
Section 13(a) and 15(d), in addition to one or more registration
statements and amendments thereto heretofore filed by the Company with
the Commission (all of the foregoing including filings incorporated by
reference therein being referred to herein as the "SEC Documents"). The
Company has not provided to the Subscribers any material non-public
information or any information which, according to applicable law, rule
or regulation, should have been disclosed publicly by the Company but
which has not been disclosed. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
promulgated thereunder and other Federal, state and local laws, rules
and regulations applicable to such SEC Documents, and none of the SEC
Documents contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
2.2.10 No General Solicitation. Neither the Company, nor any
of its affiliates, or, to its knowledge, any person acting on its or
their behalf (other than Subscribers, as to whom the Company makes no
representation) has engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D under the 0000
Xxx) in connection with the offer or sale of the Shares.
2.2.11 No Integrated Offering. Neither the Company, nor any of
its affiliates, nor to its knowledge any person acting on its or their
behalf (other than the Subscribers, as to whom the Company makes no
representation) has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security under any
circumstances that would require registration of the Shares under the
1933 Act.
ARTICLE 3
CONDITIONS
3.1 Conditions Precedent to the Obligation of the Subscribers to
Purchase the Shares. The obligation hereunder of each Subscriber to acquire and
pay for the Shares is subject to the satisfaction, at or before the Closing, of
each of the conditions set forth below. These conditions are for the
Subscribers' sole benefit and may be waived by the Subscribers at any time in
their sole discretion.
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3.1.1 Accuracy of the Company's Representations. The
representations and warranties of the Company shall be true and correct
in all material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and
warranties that speak as of a particular date).
3.1.2 Performance of the Company. The Company shall have
performed all agreements and satisfied all conditions required to be
performed or satisfied by the Company at or prior to the Closing.
3.1.3 NYSE. From the date hereof to the Closing Date, trading
in the Company's Common Stock shall not have been suspended by the SEC
or the NYSE and Common Stock shall not have been delisted.
3.1.4 No Injunction. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of
competent jurisdiction which prohibits the consummation of any of the
transactions contemplated by this Agreement.
ARTICLE 4
MISCELLANEOUS PROVISIONS
4.1 Survival of Representations and Warranties. The representations and
warranties contained herein are intended to and shall survive delivery of this
Agreement and the completion of the transactions contemplated hereby, provided,
however, that the representations and warranties set forth in paragraph 2.2.4
shall survive only until the expiration of the period of limitations and period
of repose imposed by statute and/or case law for interpreting the securities
laws, as in effect from time-to-time ("Limitations and Repose Period"), and no
cause of action for breach of any representation or warranty contained in
paragraph 2.2.4 may be brought after the expiration of the Limitations and
Repose Period.
4.2 Indemnification.
4.2.1 By Subscriber. Each Subscriber agrees to indemnify and
hold harmless the Company, its officers and directors and each other
person, if any, who controls or is controlled by any of them, within
the meaning of Section 15 of the 1933 Act, against any and all loss,
liability, claim, damage and expense whatsoever (including, but not
limited to, the reasonable expenses of counsel) arising out of or based
upon (i) any false representation or warranty or breach or failure by
the Subscriber to comply with any covenant or agreement made by the
Subscriber herein or in any other document furnished by the Subscriber
to any of the foregoing in connection with this transaction; or (ii)
the disposition of any Shares which the Subscriber will receive,
contrary to the Subscriber's declaration, representations and
warranties in this Agreement.
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4.2.2 By Company. The Company agrees to indemnify and hold
harmless each Subscriber, its partners, officers, employees, agents and
any other person who controls or is controlled by any of them, against
any and all, loss, liability, claim, damage and expense whatsoever
(including, but not limited to, the reasonable expenses of counsel)
arising out of or based upon any false representation or warranty or
breach or failure by the Company or its agents to comply with any
covenant or agreement made by the Company herein or in any other
document furnished by the Company to the Subscriber in connection with
this transaction, provided that in no event shall the Company's
indemnification obligations hereunder exceed the aggregate Subscription
Price plus interest at a rate equal to ten percent (10%) per annum.
Notwithstanding the foregoing, the Company acknowledges that in the
event of a willful and wanton breach of paragraph 2.2 by the Company,
Subscribers may not have an adequate remedy at law. Accordingly, the
parties agree that in any action or proceeding arising out of an
alleged willful and wanton breach by Company of paragraph 2.2,
Subscribers shall be entitled to seek equitable relief, including
specific performance, without the necessity of posting any bond.
4.3 Notices and Addresses. All notices required to be given under this
Agreement shall be in writing and shall be mailed by certified or registered
mail, hand delivered or delivered by next business day courier. Any notice to be
sent to the Company shall be mailed to the principal place of business of the
Company or to such other address as the Company may specify in a notice sent to
a Subscriber. All notices to a Subscriber shall be mailed or delivered to the
address of the Subscriber set forth below or to such other address as the
Subscriber may hereafter specify in a notice to the Company, with copies to
Kleinberg, Kaplan, Xxxxx & Xxxxx, P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attn: Xxxxxx X. Xxxxx, Esq. Notices shall be effective on the date three
(3) days after the date of mailing or, if hand delivered or delivered by next
day business courier, on the date of delivery.
4.4 Governing Law. This Agreement iS governed by and is to be
construed in accordance with the laws of the State of Illinois without regard to
conflicts of laws principles.
4.5 Successors and Assigns. This Agreement shall be binding upon and
inure to the parties hereto, and each of their respective legal representatives
and successors. This Agreement is not transferable or assignable by the
Subscribers or the Company, other than to Subscribers' affiliates.
4.6 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which shall
constitute one instrument.
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4.7 Modifications To Be In Writing. This Agreement constitutes the
entire understanding of the parties hereto and no amendment, restatement,
modification or alteration will be binding unless the same is in writing signed
by the party against whom any such amendment, restatement, modification or
alteration is sought to be enforced.
4.8 Interpretation. All pronouns contained herein shall be deemed to
include the feminine, masculine and neuter, singular or plural, as the identity
of the parties hereto may require. The captions of the various paragraphs of
this Agreement are inserted for convenience of reference only and shall not
affect the construction of any paragraph of this Agreement. All capitalized
words or expressions not defined in this Agreement shall have the respective
meanings ascribed to them in the Memorandum, unless the context otherwise
requires.
4.9 Validity and Severability. If any provision of this Agreement is
held invalid or unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law, and all other provisions shall remain.
4.10 Statutory References. Each reference in this Agreement to a
particular statute or regulation, or a provision thereof, shall be deemed to
refer to such statute or regulation, or provision thereof, or to any similar or
superseding statute or regulation, or provision thereof, as is from time to time
in effect.
4.11 Additional Documents. Each party shall promptly execute all such
additional documents as may be reasonably required by another party in
furtherance of this Agreement.
4.12 Jurisdiction. Each Subscriber and the Company irrevocably submits
to the exclusive personal jurisdiction of the courts of the state of Illinois
for the County of Xxxx and the United States District Court for the Northern
District of Illinois in any suit, action or proceeding brought to enforce this
Agreement. Each party hereby irrevocably waives, to the fullest extent permitted
by law, any objection which it may now have or hereafter may have to the venue
of any such suit, action or proceeding brought in any such court and any claim
that any such suit, action or proceeding brought in such court has been brought
in an inconvenient forum or any other forum. Nothing in this paragraph shall
limit the right of the Company to bring proceedings against the Subscriber in
the courts of any appropriate jurisdiction.
4.13 Legal Proceedings. There is no material legal or governmental
proceeding pending or, to the knowledge of the Company, threatened or
contemplated to which the Company is or may be a party or of which the business
or property of the Company is or may be subject, which has not been disclosed to
the investor or in the SEC Documents.
4.14 Expenses. Each party shall pay its own expenses in connection with
this Agreement.
4.15 Press Release. The Company will immediately upon Closing issue a
press release which has been reviewed by and is reasonably satisfactory to
Subscribers.
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IN WITNESS WHEREOF, the Subscriber has executed this Agreement on
December 30, 1999.
SUBSCRIBERS:
XXXXXXX ASSOCIATES, L.P.
By: ______________________
Name: ________________________
Title: _______________________
Address: 000 Xxxxx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Business Telephone No.: (000) 000-0000
Federal ID#:: 00-0000000
WESTGATE INTERNATIONAL, L.P.
By: Martley International, Inc., as Attorney-in-fact
By: _____________________________
Title: __________________________
Address: c/o HSBC Financial Services (Cayman) Limited
Xxxx Street
Grand Cayman, Cayman Islands
Business Telephone No.: (000) 000-0000
Federal ID# : N/A
Number of Shares at $32.00 each: to be completed at Closing
Total Subscription Price: $5,000,000.00
(FOR COMPLETION ONLY BY THE COMPANY)
ENTRADE INC.
ACCEPTANCE OF SUBSCRIPTION
The undersigned Company hereby accepts the foregoing Subscription and
Investment Representation Agreement on behalf of Entrade Inc., subject to the
terms and conditions thereof for the "Accepted Amount" set forth below.
Subscriber Names: Xxxxxxx Associates, L.P. and
Westgate International, L.P.
Subscription Price (Tendered): $5,000,000.00 ($2,500,000 each)
Accepted Amount: $5,000,000.00
Portion of Subscription Price Returned: $-0-
Number of Shares to be issued: to be completed at Closing
ENTRADE INC.,
a Pennsylvania corporation
By: ________________________
Title: ________________________
Date of Acceptance:
December 30, 1999
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