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EXHIBIT 3.2
LETTER AGREEMENT
March __, 2000
Xxxxx.xxx, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Gentlemen:
Xxxxx.xxx, Inc., a Florida corporation (the "Company"), has executed
and delivered to ____________________("___"), a promissory note (the "Note") of
even date herewith in the original principal amount of $___________. In
connection with the Note, the Company has agreed to issue to _____ 703,425
shares (the "Shares") of the common stock, par value $.001 per share ("Common
Stock"), of the Company for a purchase price of $.01 per share.
In connection therewith, _____ hereby represents and warrants to the
Company and agrees as follows:
(1) The Note and the Shares are being acquired solely for the
account of _____;
(2) No sale, distribution, transfer or other disposition of the
Note or the Shares will be made, unless and until, either (i)
the Note and/or the Shares have been duly and effectively
registered or qualified for resale under the Securities Act of
1933, as amended (the "Securities Act"), and under any
applicable state securities laws; or (ii) an exemption from
such registration or qualification is available, in the
opinion of counsel satisfactory to the Company, with respect
to any such proposed sale or disposition;
(3) The Company may place and make appropriate notations in its
record books against the transfer of the Note and the Shares;
(4) A restrictive legend may be placed on any certificates
representing the Note or the Shares, such restrictive legend
to state that the Note and the Shares have not been registered
under the Securities Act or any other applicable securities
law and may only be transferred in accordance with this
letter; and
(5) The Company may take any other actions which it deems
necessary to prevent any violations of the Securities Act or
any other securities law by reason of the delivery of the Note
or the Shares hereunder or any subsequent transaction with
respect to the Note or the Shares.
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March __, 2000
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_____ hereby confirms and acknowledges as follows:
(1) The Note and the Shares will not be registered under the
Securities Act or any other securities laws on the basis that
the sale of such Note and/or the Shares to _____ is exempt
from registration under the Securities Act and such other
securities laws;
(2) The Company's reliance on such exemption is predicated in part
upon the representations and warranties of _____ contained
herein;
(3) The Company will not be required to permit or recognize any
sale, transfer or other disposition of any of the Note or the
Shares at any particular time, or with the passage of time;
and
(4) The Company is under no obligation to register or qualify the
Note or the Shares under the Securities Act or any other
securities laws other than pursuant to any registration rights
agreement that the Company and _____ may enter into.
_____ represents and warrants that _____ is a ____________ in which all
of the equity owners are investors who fall within one or more of the following
categories of investors:
(a) Any bank as defined in Section 3(a)(2) of the Securities Act,
or a savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the Securities Act, whether
acting in its individual or fiduciary capacity;
(b) Any broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended;
(c) Any insurance company as defined in Section 2(13) of the
Securities Act;
(d) Any investment company registered under the Investment Company
Act of 1940, as amended, or a business development company as
defined in Section 2(a)(48) of that Act;
(e) Any Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of
the Small Business Investment Act of 1958, as amended;
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March __, 2000
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(f) Any plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or
its political subdivisions, for the benefit of its employees,
if such plan has total assets in excess of $5,000,000;
(g) Any employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974, as amended, if the
investment decision is made by a plan fiduciary, as defined in
section 3(21) of such act, which is either a bank, savings and
loan association, insurance company, or registered investment
adviser, or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are
accredited investors, as defined in Rule 501(a) of Regulation
D under the Securities Act;
(h) Any private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940, as amended;
(i) Any organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended, corporation,
Massachusetts or similar business trust, or partnership, not
formed for the specific purpose of acquiring securities of the
Company, with total assets in excess of $5,000,000;
(j) Any natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his purchase
exceeds $1,000,000;
(k) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years, or joint income
with that person's spouse in excess of $300,000 in each of
those years, and has a reasonable expectation of reaching the
same income level in the current year; or
(l) Any trust with total assets in excess of $5,000,000 not formed
for the specific purpose of acquiring securities of the
Company, whose purchase is directed by a sophisticated person
as described in Rule 506(b)(2)(ii) of Regulation D under the
Securities Act.
_____ acknowledges that (i) _____ has had the opportunity to verify the
accuracy of all information regarding the Company supplied to _____ by examining
the records of the Company and by interviewing the officers and directors of the
Company and all others whom _____ believes possess material information
concerning the Company, (ii) _____ has had access to all financial or other
information which has or might have a material effect on the business and
condition (financial or otherwise) of the Company or the marketability or value
of its outstanding securities, (iii) _____,
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March __, 2000
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either alone or with _____'s professional advisors, has such knowledge and
experience in financial and business matters that _____ and/or such advisors are
capable of evaluating the merits and risks of this particular investment and
(iv) _____ is able to bear the economic risk of this investment for an
indefinite time and can afford a complete loss thereof.
_____ AGREES TO DEFEND, INDEMNIFY AND HOLD THE COMPANY HARMLESS FROM
ANY LOSS, LIABILITY, CLAIM, DAMAGE OR EXPENSE, INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEYS' FEES AND COSTS OF SUIT, ARISING OUT OF ANY
MISREPRESENTATION OR VIOLATION OR BREACH OF ANY REPRESENTATION OR WARRANTY
CONTAINED HEREIN.
The Company hereby represents and warrants to _____ as follows:
(1) The Company is a corporation validly existing and in good
standing under the laws of the State of Florida and has full
corporate power and authority to own and lease its properties
and to carry on its business as presently conducted.
(2) The Company has full power, authority and legal right to enter
into the Note and to issue the Shares. The Note and the
issuance of the Shares have been duly authorized by all
requisite action of the directors of the Company. Upon
execution and delivery by the Company of the Note, it will be
a valid and binding obligation of the Company, enforceable in
accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors generally and general
equitable principles.
(3) Upon issuance of the Shares to _____, and the receipt of the
Company of the consideration therefor, the Shares shall be
validly issued, fully paid and non-assessable shares of Common
Stock
The Company further agrees as follows:
(1) The Company intends to execute and deliver promissory notes in
the aggregate amount of $1,500,000, including the Note, to
investors in addition to _____. The Company shall close all
such transactions simultaneously.
(2) The Company shall pay all legal fees incurred by _____ in
connection with the transactions contemplated by this letter.
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March __, 2000
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(3) The Company shall provide to _____ copies of its Quarterly
Reports on Form 10-QSB and Annual Reports on Form 10-KSB
promptly after the filing of such reports with the Securities
and Exchange Commission.
(4) If at any time or times after the date hereof, the Company
shall determine to register any of its Common Stock or
securities convertible into or exchangeable for Common Stock
under the Securities Act (other than pursuant to a
registration statement on Form S-4 or S-8 or the equivalent
thereof), whether in connection with a public offering of
securities by the Company (a "primary offering"), a public
offering thereof by stockholders (a "secondary offering"), or
both, the Company will promptly give written notice thereof to
_____, and will use its best efforts to effect the
registration under the Securities Act of any Shares which
_____ may request in writing delivered to the Company within
15 days after the notice given by the Company; provided,
however, that in the case of the registration of Common Stock
by the Company in connection with an underwritten public
offering, the Company shall not be required to register Shares
in excess of the amount, if any, of Shares which the principal
underwriter of an underwritten offering shall reasonably and
in good faith agree can be included without jeopardizing the
success of the offering by the Company; and, provided further,
that if any Shares are not included for this reason, the
Company will permit _____ and all other holders of securities
of the Company having a right to include securities in such
registration who have requested participation in the offering
to participate in the offering proportionately in accordance
with the number of Shares (in the case of _____) or shares of
Common Stock subject to such registration right (in the case
of such other holders) owned or obtainable by them. Without in
any way limiting the types of registrations to which this
paragraph shall apply, in the event that the Company shall
effect a "shelf registration" under Rule 415 under the
Securities Act, or any other similar rule or regulation, the
Company shall take all necessary action, including, without
limitation, the filing of post-effective amendments, to permit
_____ to include its Shares in such registration in accordance
with the terms of this paragraph. In connection with any
offering under this paragraph involving an underwriting, the
Company shall not be required to include any Shares in such
underwriting unless _____ accepts the terms of the
underwriting as agreed on between the Company, _____ and the
underwriter selected by the Company. The Company shall have
the right to postpone or withdraw any registration effective
pursuant to this paragraph without obligation to _____. The
Company shall not be required to keep any such registration
statement effective for longer than 90 days. _____ agrees that
the Company may grant registration rights to the future
investors
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March __, 2000
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referred to in the Note, and that, in connection therewith,
agree to modify, amend or supplement the registration rights
set forth herein as requested by such investors. The Company
agrees to use its best efforts to cause the registration
rights of _____ and such new investors to be pari passu to the
extent reasonably practicable.
[Balance of Page Intentionally Left Blank]
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Xxxxx.xxx, Inc.
March __, 2000
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LETTER AGREEMENT
DATED MARCH __, 2000
SIGNATURE PAGE
IN WITNESS WHEREOF, _____ has executed this Letter Agreement as of the
day and year first written above.
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By:
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Name:
-------------------------
Title:
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XXXXX.XXX, INC.,
a Florida corporation
By:
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Name:
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Title:
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