EXHIBIT 10.31
October 26, 1999
Xx. Xxxxx Xxxxx
0000 Xxxxx Xxxxxxxxx Xxxxx, #00
Xxxxxxx, XX 00000
Via Fax (000) 000-0000
RE: Exchange Agreement
WHEREAS, Outlook Sports Technology, Inc. ("Outlook"), a Delaware
corporation and Xx. Xxxxx Xxxxx (the "Offeree") on or about May 25, 1999 entered
into a Royalty Agreement under which Outlook obtained a $300,000 loan from the
Lender. In exchange for the loan, Outlook issued to the Offeree a 12 month
non-transferable 5% note (hereinafter the "Note") which is due and payable on
May 26, 2000, a running royalty on Outlook sales equal to two percent (2%) of
gross sales of Tegra titanium drivers and 50,000 warrants exercisable at 125% of
the market price at the date of the transaction.
NOW, THEREFORE, upon execution of this Agreement by Offeree and Outlook
the Offeree agrees to exchange the Note, the royalty revenue on sales and the
50,000 warrants issued to the Lender under the Royalty Agreement for 65,000
shares of Outlook Sports Technology, Inc. Class A Common Stock. Outlook will
make a best effort to register this stock within thirty days of the date of this
agreement. The Lender acknowledges that receipt of the 65,000 shares of stock
will extinguish all obligations from Outlook to the Offeree.
Upon execution of this Agreement, Offeree will immediately return to
Outlook the Note that Offeree has received from Outlook.
As promptly as practicable upon receipt by Outlook of the Note held by
Offeree, Outlook will deliver to OFFEREE A 65,000 SHARE CLASS A COMMON STOCK
CERTIFICATE; PROVIDED, HOWEVER, that if any law or regulation or order of the
Securities and Exchange Commission or any other body having jurisdiction in the
premises shall require Outlook or Offeree to take any action in connection with
the shares of Class A Common Stock then being exchanged, the date for the
delivery of such certificate shall be extended for the period necessary to take
and complete such action. Outlook shall make a best effort to register these
shares within sixty dates of issue.
Outlook represents to Offeree as follows:
a. Outlook is duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has all requisite
corporate power and authority to (i) own, lease and operate its properties and
to carry on its business as now being conducted, and (ii) to execute, deliver
and perform its obligations under this Agreement, and to consummate the
transactions contemplated hereby. The Company is duly qualified to do business
as a foreign corporation and is in good standing in all jurisdictions wherein
such qualification is necessary and where failure to so qualify could have a
material adverse effect on the business, properties, operations, condition
(financial or other), results of operations or prospects of the Company.
b. This Agreement has been duly and validly authorized,
executed and delivered by Outlook and this Agreement is the valid and binding
agreement of Outlook enforceable in accordance with its terms, subject as to
enforceability to general principles of equity and to bankruptcy, insolvency,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally.
c. Outlook will reserve and keep available, out of shares of
its authorized and unissued Class A Common Stock or shares of Class A Common
Stock held in treasury, a sufficient number of shares of its Common Stock to
satisfy the requirements of this Agreement.
d. All shares of Class A Common Stock agreed to be issued
pursuant to this Agreement will, upon issuance, be duly and validly issued,
fully paid and non-assessable.
Offeree represents to Outlook as follows:
a. Offeree's status as an "accredited investor," as that term
was defined in the Subscription Agreements signed by Offeree in connection with
the Note previously made by Offeree, has not changed.
b. Offeree has had an opportunity to ask questions of and
receive answers from Outlook concerning Outlook and all other matters pertinent
to the Exchange, and all such questions have been answered to the full
satisfaction of Offeree. Offeree has been given access to Outlook's books and
records and all other documents and information that Offeree has requested
relating to the Exchange.
c. Except as set forth herein, no representations or
warranties have been made to Offeree by Outlook or any agent, employee or
affiliate thereof, and no oral or written information furnished to Offeree or
its advisors, if any, was in any way inconsistent with this Agreement.
This Agreement shall be governed by and interpreted in accordance
with the laws of Delaware. This Agreement may be executed in counterparts and by
the parties hereto on separate counterparts, all of which together shall
constitute one and the same instrument. A facsimile transmission of this
Agreement bearing a signature on behalf of a party hereto shall be legal and
binding on such party.
If any provision of this Agreement shall be invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement in any other
jurisdiction.
This Agreement may be amended only by an instrument in writing signed
by the party to be charged with enforcement.
This Agreement sets forth the entire agreement between the parties
hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings, whether written or oral, with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
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Offeree
Name: _____________________
Address: __________________
OUTLOOK SPORTS TECHNOLOGY, INC.
By: _______________________
Name: _____________________
Title: ____________________
