EXHIBIT 10.26
AGREEMENT
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This Agreement (the "Agreement") is dated as of May 26, 1999 between The
Xxxxx X. Xxxx Separate Property Trust u/d/t 8/2/95 (the "Trust") and XXX.XXX
INC. (the "Company").
WHEREAS, the Trust has made a $10,000,000 loan to the Company evidenced by
a promissory note bearing 10% annual interest (the "Note"), attached hereto as
Exhibit A, with all of the outstanding principal and accrued but unpaid interest
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due and payable on the closing and funding of a loan transaction in which the
Company receives at least $15,000,000 from the Bank of Nova Scotia or another
institutional lender (the "Bank Financing");
WHEREAS, the Trust desires the Company to issue a warrant to the Trust in
the event that the Bank Financing is not completed on or before June 25, 1999;
NOW, THEREFORE, in consideration for the Trusts' loan the Company pursuant
to the terms of the Note, the Trust and the Company agree to the following:
1. In the event the Bank Financing is not consummated on or before
June 25, 1999, the Company will issue to the Trust a warrant (in substantially
the form attached hereto as Exhibit B) to purchase 10,000 shares of the
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Company's Common Stock at an exercise price per share equal to the following:
(a) If the Company has filed a Registration Statement on Form
S-1 for an initial public offering of its Common Stock, the exercise price per
share shall be equal to the mid point of the offering's price per share range
listed in such Registration Statement; or
(b) If the Company has not filed a Registration Statement on
Form S-1 for an initial public offering of its Common Stock, the exercise price
per share shall be equal to the fair market value of such shares on the date of
the warrant's issuance. The fair market value shall be determined in good faith
by the Company's Board of Directors.
2. In the event the Bank Financing is completed on or before June
25, 1999 and all of the outstanding principal and accrued but unpaid interest
under the Note has been repaid to the Trust, the Company shall not have any
obligations to issue any equity securities to the Trust pursuant to this
Agreement.
IN WITNESS WHEREOF, the foregoing Agreement is hereby executed as of the date
first written above.
The Xxxxx X. Xxxx Separate Property XXX.XXX INC.
Trust u/d/t 8/2/95
___________________________________ ___________________________________
Xxxxx X. Xxxx, Trustee Xxxxxxx X. Xxxxxxx
Chief Executive Officer
Exhibit A
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Exhibit B
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WAIVER OF CERTAIN RIGHTS
PURSUANT TO THE AGREEMENT DATED MAY 26, 1999
August 5, 1999
WHEREAS, The Xxxxx X. Xxxx Separate Property Trust dated 8/2/95 (the
"Trust") and XXX.XXX INC., a Delaware corporation (the "Company") are the
parties to that certain Agreement, dated May 26, 1999 (the "Agreement");
WHEREAS, The Trust has made a $10,000,000 loan to the Company evidenced by
a promissory note bearing 10% annual interest (the "Note") with all of the
outstanding principal and accrued but unpaid interest due and payable on the
closing of the loan transaction with The Bank of Nova Scotia;
WHEREAS, in the event the loan transaction was not completed on or before
June 30, 1999, the Company is obligated to issue the Trust a warrant to purchase
10,000 shares of the Company's common stock (pre 15 to 1 split) (the "Warrant");
WHEREAS, the loan transaction with The Bank of Scotia was not completed on
or before June 30, 1999, and the Company is obligated to issue the Warrant to
the Trust;
WHEREAS, the Trust desires to waive the Company's obligation to issue the
Warrant and agrees to waive any and all rights under the Agreement;
NOW THEREFORE, the Trust makes the following waiver:
1. The Trust hereby waives the Company's obligation to issue the Warrant
and waives any and all rights under the Agreement and the Company's obligation
to issue the Warrant is hereby terminated.
IN WITNESS WHEREOF, the foregoing Waiver is hereby executed as of the date
first above written.
THE XXXXX X. XXXX SEPARATE
PROPERTY TRUST U/D/T 8/2/95
BY: _______________________
Name: Xxxxx Xxxx
Title: Trustee
