EXHIBIT 10.15
SUBSCRIPTION AGREEMENT
APRIL 8, 1999
xXXxX*s Inc., a Delaware corporation (the "Corporation"), and iTurf
Finance 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 Inc.'s Class A Common
Stock begins trading on The Nasdaq Stock Market.
"Initital Closing Date" means the closing date of iTurf Inc.'s
initial public offering.
"Initial Purchase Price" means Ten Million Dollars
($10,000,000).
"Over-Allotment Option" means the option granted by iTurf Inc.
to the underwriters of its initial public offering to purchase additional shares
of iTurf Inc.'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) iTurf Inc.'s net proceeds from the exercise of the
Over-Allotment Option.
"Shares" means the Initial Shares and the
Over-Allotment Shares.
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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,
at the Investor's request, 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, upon the
Investor's request, the
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Corporation shall deliver, or promptly after the Over-Allotment Closing Date
shall deliver, to the Investor a certificate or certificates representing the
Over-Allotment 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.
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(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
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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 to it at 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]
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[SIGNATURE PAGE TO SUBSCRIPTION AGREEMENT]
iTurf Finance 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
