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SECURITIES PURCHASE AGREEMENT
Among
FIDELITY HOLDINGS, INC.
and
THE INVESTORS SIGNATORY HERETO
Dated as of March 14, 2000
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Exhibit 10.73
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of March 14,
2000, among Fidelity Holdings, Inc., a Nevada corporation (the "Company"), and
the investors signatory hereto on the date hereof (each such investor is a
"Purchaser" and all such investors are, collectively, the "Purchasers").
WHEREAS, subject to the terms and conditions set forth in this Agreement,
the Company desires to issue and sell to the Purchasers and the Purchasers,
severally and not jointly, desire to purchase from the Company an aggregate of
50,000 shares (the "Shares") of the Company's common stock, $.01 par value per
share (the "Common Stock"), at a purchase price of $13.90 per Share, and
warrants to acquire during the five years following the date hereof an aggregate
of 50,000 additional shares of Common Stock at an exercise price of $16.00 per
share of Common Stock (the "Warrants").
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration the receipt and
adequacy are hereby acknowledged, the Company and the Purchasers agree as
follows:
ARTICLE I
PURCHASE AND SALE
1. The Closing.
(a) The Closing. (i) The closing of the purchase and sale of the
Shares and Warrants (the "Closing") shall take place at the offices of Xxxxxxxx
Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP ("Xxxxxxxx Xxxxxxxxx"), 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, immediately following the execution
hereof or such later date as the parties shall agree. The date of the Closing is
hereinafter referred to as the "Closing Date."
(ii) At the Closing, the parties shall deliver or shall cause
to be delivered the following: (A) the Company shall deliver to each Purchaser
(1) a stock certificate representing the number of Shares indicated below such
Purchaser's name on the signature page of this Agreement, (2) Warrants, in the
form of Exhibit A, to acquire the number of Shares indicated below such
Purchaser's name on the signature page to this Agreement, and (3) an executed
Registration Rights Agreement, dated the date hereof, among the Company and the
Purchasers, in the form of Exhibit B (the "Registration Rights Agreement"); and
(B) each Purchaser shall deliver to the Company (1) the purchase price indicated
below such Purchaser's name on the signature page to this Agreement in United
States dollars in immediately available funds by wire transfer to an account
designated for such purpose prior to the Closing Date in writing by the Company,
and (2) an executed Registration Rights Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2. Representations and Warranties of the Company. The Company hereby makes
the following representations and warranties to the Purchasers:
(a) Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and to consummate the transactions
contemplated by each of this Agreement, the Warrants and the Registration Rights
Agreement (the "Transaction Documents") and otherwise to carry out its
obligations thereunder. The execution and delivery of each of the Transaction
Documents by the Company and the consummation by it of the transactions
contemplated thereby have been duly authorized by all necessary corporate action
on the part of the Company and no further action is required by the Company.
Each of the Transaction Documents has been duly executed by the Company and,
when delivered in accordance with the terms hereof, will constitute the valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms. Neither the Company nor any subsidiary is in
violation of any of the provisions of its respective certificate of
incorporation, by-laws or other charter or organizational documents.
(b) Issuance of the Securities. The Shares, the Warrants and the
shares of Common Stock issuable upon exercise of the Warrants are duly
authorized, have been duly reserved for issuance to the Purchasers and, when
issued and paid for in accordance with the terms hereof, will be duly and
validly issued, fully paid and nonassessable, free and clear of all liens,
encumbrances and rights of first refusal of any kind.
(c) Restatement of the Company's Representation and Warranties
contained in Article II of the February Agreement. The representations and
warranties of the Company contained in the Securities Purchase Agreement dated
as of February 8, 2000 among the Company and the Purchasers (the "February
Agreement")) are true and correct as of the Closing Date as though first made on
and as of the Closing Date (other than representations and warranties which
relate to a specific date (which shall not include representations and
warranties relating to the "date hereof") which representations and warranties
shall be true as of such specific date). For all purposes of the February
Agreement, the term "Transaction Documents" (as defined herein) shall replace
the term "Transaction Documents" (as defined in the February Agreement) and the
term "Securities" shall refer to the Shares, the Warrants and the shares of
Common Stock issuable upon exercise thereof.
(d) Restatement of the Purchasers' Representation and Warranties
contained in Article II of the February Agreement. The representations and
warranties of each Purchaser contained in the February Agreement are true and
correct as of the Closing Date as though made on and as of the Closing Date
(other than representations and warranties which relate to a specific date
(which shall not include representations and warranties relating to the "date
hereof") which representations and warranties shall be true as of such specific
date).
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ARTICLE III
OTHER AGREEMENTS OF THE PARTIES
3. Restatement of the Parties' Agreements contained in Article III
of the February Agreement. The agreements of the Company and each Purchaser
contained in the February Agreement are reiterated as of the Closing Date,
mutatis mutandis.
ARTICLE IV
MISCELLANEOUS
4.1 Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to 8:00 p.m. (New
York City time) on a Business Day, (ii) the Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Agreement later than 8:00 p.m. (New
York City time) on any date and earlier than 11:59 p.m. (New York City time) on
such date, (iii) the Business Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) if sent other than by
the methods set forth in (i)-(iii) of this Section 4.3, upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Company: Fidelity Holdings, Inc.
00-00 Xxx Xxxxxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx Xxxxx, President
With copies to: Xxxxxxx Xxxxxx Xxxx & Ball P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxx X. Xxxxxxx, Esq. and
Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
4.2 Governing Law. The corporate laws of the State of Nevada shall
govern all issues concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law thereof. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection
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herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of the any of the Transaction
Documents), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
4.3 Survival. The representations, warranties, agreements and
covenants contained herein shall survive the Closing, the delivery and exercise
of the Warrants.
4.4 Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser under any Transaction Document is several and not
joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under any Transaction Document. Nothing contained herein or in any
Transaction Document, and no action taken by any Purchaser pursuant thereto,
shall be deemed to constitute the Purchasers as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert with respect to such obligations or
the transactions contemplated by the Transaction Document. Each Purchaser shall
be entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement or out of the Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as
an additional party in any proceeding for such purpose.
4.5 Incorporation of February Agreement Sections. Sections of the
February Agreement relating to severability, entire agreement, assignment,
amendment, waiver, headings and specific performance are hereby incorporated in
their entirety in this Agreement as if fully set forth herein and shall be
binding upon this Agreement and the transactions contemplated herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
FIDELITY HOLODINGS, INC.
By:_____________________________________
Name:
Title:
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
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STRONG RIVER INVESTMENTS, INC.
By:_____________________________________
Xxxxxxx X. Xxxxxxxxx
Attorney-in-fact
Purchase Price: $695,000
Number of Shares Purchased: 50,000
Number of Shares underlying Warrant: 50,000
Address for Notice:
Strong River Investments, Inc.
c/o Xxxxxxxx-Xxxx & Xxxxxx (BVI) Limited
Wickhams Cay I, Xxxxxxxxxx Xxxxx
X.X. Xxx 000
Xxxx Xxxx, Xxxxxxxx, XXX
With copies to:
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 and (000) 000-0000
Attn: Xxxx X. Xxxxx, Esq.
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