EXHIBIT 10.15
SUBSCRIPTION AGREEMENT
APRIL 1, 1999
xXXxX*s Inc., a Delaware corporation (the "Corporation"), and
iTurf Delaware Investment Company (the "Investor"), hereby agree as follows:
1. Definitions. As used herein, the following
capitalized terms have the meaning ascribed to them below:
"Common Stock"means the Corporation's Common Stock,
par value $.01 per share.
"Initial Average Trading Price" means the average of
the closing price of the Common Stock as reported by The Nasdaq Stock market on
each of the five trading days preceding the date on which iTurf's Class A
Common Stock begins trading on The Nasdaq Stock Market.
"Initial Closing Date" means the closing date of the
Investor's initial public offering.
"Initial Purchase Price" means Ten Million Dollars
($10,000,000).
"iTurf" means iTurf Inc., a Delaware Corporation.
"Over-Allotment Option" means the option granted by
iTurf to the underwriters of its initial public offering to purchase
additional shares of iTurf's Class A Common Stock under certain circumstances
pursuant to an underwriting agreement between such parties.
"Over-Allotment Average Trading Price" means the
average of the closing price of the Common Stock as reported by The Nasdaq Stock
Market on each of the five trading days preceding the date on which notice of
the underwriters' intent to exercise the Over-Allotment Option is given.
"Over-Allotment Closing Date" means the closing date
of the exercise of the Over-Allotment Option.
"Over-Allotment Option Purchase Price" means the
product of (A) 0.6 multiplied by (B) the Investor's net proceeds from the
exercise of the Over-Allotment Option.
"Shares" means the Initial Shares and the Over-
Allotment Shares.
2. Subscription.
(a) Initial Subscription. The Investor agrees to subscribe for
the purchase of that number of shares of the Common Stock equal to the quotient
obtained by dividing the Initial Purchase Price (as defined below) by the
Initial Average Trading Price (the "Initial Shares")), for the Initial Purchase
Price and the Corporation agrees to accept the subscription. Upon the Initial
Closing Date, the Investor shall deliver to the Corporation funds in the amount
of the Initial Purchase Price for the Initial Shares and the Corporation shall
deliver, or promptly after the Closing Date shall deliver, to the Investor a
certificate or certificates representing the Initial Shares.
(b) Over-Allotment Subscription. In the event the
Over-Allotment Option is exercised, the Investor shall subscribe for the
purchase of that number of shares of the Common Stock equal to the quotient
obtained by dividing the Over-Allotment Purchase Price by the Over-Allotment
Average Trading Price (the "Over-Allotment Shares")), for the Over-Allotment
Purchase Price and the Corporation agrees to accept the subscription. Upon the
Over-Allotment Closing Date, the Investor shall deliver to the Corporation funds
in the amount of the Over-Allotment Purchase Price for the Over-Allotment Shares
and the Corporation is delivering, or
promptly after the execution of this agreement shall deliver, to the Investor a
certificate or certificates representing the Initial Shares.
3. Representations and Warranties of the
Investor. The Investor understands that the offer and sale of the Shares are
intended to be exempt from registration under the Securities Act of 1933, as
amended, (the "Act") by virtue of the private placement exemption under the Act.
Accordingly, the Investor represents and warrants to the Corporation that:
(a) The Investor is aware that there are substantial risks in
subscribing to purchase, and in purchasing, the Shares.
(b) Representatives of the Corporation have answered any
questions the Investor has asked about the Corporation and the Investor has
received any additional information the Investor has requested.
(c) The Investor is acquiring the Shares for its own account,
for investment, and not with a view to resale or distribution, in whole or in
part, in violation of the Act.
(d) In deciding to subscribe for the Shares, the Investor has
relied solely upon an independent investigation of the Corporation's business
and upon consultation with the Investor's legal and financial advisers with
respect to the Corporation's business, the nature of the Investor's investment
and this agreement, and the Investor has not acted upon the basis of any other
representations or warranties.
(e) The Investor has such knowledge and experience in
financial and business matters to be capable of evaluating the merits and risks
of the investment, and is able to bear the substantial economic risks of the
investment and can afford a complete loss of the investment.
(f) The Investor understands that the Shares cannot be sold,
transferred or assigned, unless they first are registered under the Act or an
exemption from registration is available (and then may be sold only in
compliance with all applicable state securities laws), and that a legend may be
placed upon the certificates representing the Shares to that effect and that a
stop transfer order may be placed against them.
4. Miscellaneous.
(a) This agreement supersedes all prior agreements
between the parties concerning its subject matter, is intended as a complete and
exclusive statement of the terms of
the agreement between the parties with respect to the transaction contemplated
by it, and cannot be changed or terminated orally.
(b) The failure of a party to insist upon strict
adherence to any term of this agreement on any occasion shall not be considered
a waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this agreement. Any waiver must be
in writing.
(c) This agreement shall be governed by and construed
in accordance with the law of New York applicable to agreements made and to be
performed in New York.
(d) Any notice or other communication under this
agreement shall be in writing and shall be considered given when mailed by
registered mail, return receipt requested, to the parties at the following
addresses (or at such other address as a party may specify by notice to the
other):
If to the Investor, to it at c/o iTurf Inc., 000
Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000; Attn: President.
If to the Corporation, to it at 000 Xxxxxx Xxxxxx,
Xxx Xxxx, XX 00000; Attn: President.
(e) This agreement is for the purpose of defining the
respective rights and obligations of the parties to it and it not for the
benefit of any creditor of the Corporation or other third party.
[SIGNATURE PAGE FOLLOWS]
[SIGNATURE PAGE TO SUBSCRIPTION AGREEMENT]
iTurf Delaware Investment Company
By:/s/Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Assistant Secretary
xXXxX*s Inc.
By:/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Senior Vice President
