SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is made and entered into
as of May 22, 2000, replacing and superceding the Subscription Agreement between
the parties dated May 18, 2000, by and between XxxxXxxxxxx.xxx, Incorporated, a
Nevada corporation (the "Company"), and Pequot Scout Fund, L.P. (the
"Purchaser").
1. Subscription. Subject to the terms and conditions contained herein,
the Purchaser hereby agrees to purchase from the Company, and the Company hereby
agrees to issue and sell to the Purchaser, 166,667 shares (the "Shares") of the
Company's Common Stock, par value $.001 per share ("Common Stock"), to be sold
under the Company's supplement to shelf registration prospectus dated March 30,
2000, for an aggregate purchase price of $500,001 (the "Purchase Price") on the
date hereof.
2. Closing. The closing (the "Closing") of the purchase and sale of the
Shares shall take place at the offices of the Company, 0000 Xxxxx XxXxxxxx
Xxxxxxxxx, Xxxx, Xxxxxx 00000 on the date hereof. As soon as practicable after
the Closing, the Company will deliver to the Purchaser a certificate for the
Shares against payment to the Company of the Purchase Price by wire transfer of
immediately available funds to the bank account or accounts designated by the
Company.
3. Conditions to Obligations of the Purchaser. The Purchaser's
obligation to purchase the Shares at the Closing is subject to the fulfillment
(or waiver by the Purchaser), at or prior to the Closing, of each of the
following conditions:
3.1 Accuracy of the Company's Representations and Warranties. The
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects at the time of the Closing, except
as such representations and warranties are affected by the consummation of the
transactions contemplated by this Agreement.
3.2 Performance by the Company. The Company shall have duly performed
and complied in all material respects with all agreements and conditions
contained in this Agreement and required to be performed or complied with by the
Company at or prior to the Closing.
4. Nonfulfillment of Conditions. If any of the conditions specified in
Section 3 shall not have been fulfilled at or prior to the Closing, the
Purchaser shall be relieved of all further obligations under this Agreement,
without thereby waiving any other rights the Purchaser may have by reason of
such nonfulfillment.
5. Conditions to Obligations of the Company. The obligations of the
Company to issue and sell the Shares to the Purchaser at the Closing shall be
subject to the fulfillment (or waiver by the Company), at or prior to the
Closing, of each of the following conditions:
5.1 Accuracy of the Purchaser's Representations and Warranties. The
representations and warranties made by the Purchaser in this Agreement shall be
true and correct in all material respects when made and at the time of the
Closing.
5.2 Performance by the Purchaser. The Purchaser shall have duly
performed and complied in all material respects with all agreements and
conditions contained in this Agreement and required to be performed or complied
with by the Purchaser at or prior to the Closing, including but not limited to
payment to the Company of the Purchase Price for the Shares in immediately
available funds.
6. Representations and Warranties of the Company. The Company
represents and warrants to the Purchaser as follows:
6.1 Corporate Organization and Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada and has all requisite corporate power and authority to own or
lease its properties and to carry on its business as presently conducted.
6.2 Authorization. This Agreement and the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of the Company. This Agreement has been duly executed and delivered by the
Company, and are the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their terms.
6.3 No Conflict or Violation. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (a) violate, conflict with or result in a breach of or constitute a default
under any provision of the Certificate of Incorporation or Bylaws of the
Company, (b) violate, conflict with or result in a breach of or constitute a
default under any judgment, order, decree, rule or regulation of any court or
governmental agency to which the Company is subject or (c) violate, conflict
with or result in a breach of any applicable rule or regulation of any federal,
state, local or other governmental authority.
6.4 Stock. The Shares to be issued to the Purchaser pursuant to this
Agreement are duly authorized and, when issued and paid for in accordance with
the terms of this Agreement, will be validly issued, fully paid and
nonassessable.
7. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Company that:
7.1 Authorization. The Purchaser is a Partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite power and authority to execute and deliver this Agreement
and to subscribe for and purchase the Shares hereunder. This Agreement and the
transactions contemplated hereby and thereby have been duly authorized by all
necessary partnership action on the part of the Purchaser. This Agreement has
been duly executed and delivered by the Purchaser, and is the legal, valid and
binding obligations of the Purchaser, enforceable against it in accordance with
their terms.
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7.2 No Conflict or Violation. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (a) violate, conflict with or result in a breach of or constitute a default
under any provision of the partnership agreement of the Purchaser, (b) violate,
conflict with or result in a breach of or constitute a default under any
judgment, order, decree, rule or regulation of any court or governmental agency
to which the Purchaser is subject or (c) violate, conflict with or result in a
breach of any applicable rule or regulation of any federal, state, local or
other governmental authority.
7.3 Access to Information; Investigation. The Purchaser made, either
alone or together with its advisors (if any), such independent investigation of
the Company, its management and related matters as the Purchaser deemed to be,
or such advisors (if any) have advised to be, necessary or advisable in
connection with an investment in the Shares. The Purchaser and its advisors (if
any) have received all information and data that the Purchaser and such advisors
(if any) believe to be necessary in order to reach an informed decision as to
the advisability of an investment in the Shares, including information with
respect to a potentially significant transaction involving the Company and a
third party previously disclosed to the Purchaser.
8. Amendments and Waivers. This Agreement may be amended and the
observance of any provision hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of each party to be bound thereby. No provision of this
Agreement shall be deemed to have been waived, unless such waiver is contained
in a written notice given to the party claiming such waiver, and no such waiver
shall be deemed to be a waiver of any other or further obligation or liability
of the party or parties in whose favor the waiver was given.
9. Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by the Purchaser or by the
Company in connection with the transactions contemplated by this Agreement shall
survive the Closing Date and shall remain in full force and effect for three
years thereafter. All covenants and agreements contained in this Agreement shall
survive the Closing Date indefinitely until, by their respective terms, they are
no longer operative. No claims shall be made after the date on which the
applicable representation or warranty upon which such claim was based ceases to
survive pursuant to this Section 9; provided, however, that the expiration of
any representation or warranty under this Section 9 shall not affect any claim
made in good faith prior to the date of such expiration.
10. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto.
11. Notices. All notices, requests, demands and other communications
given hereunder (collectively, "Notices") shall be in writing and delivered
personally or by overnight courier to the parties at the following addresses or
sent by telecopier or telex, with confirmation received, to the telecopy
specified below:
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If to the Company, at:
XxxxXxxxxxx.xxx, Incorporated
0000 Xxxxx XxXxxxxx Xxxxxxxxx
Xxxx, Xxxxxx 00000
Attn.: Xxxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
If to the Purchaser, at:
Pequot Scout Fund, L.P.
C/o Pequot Capital Management, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
All Notices shall be deemed delivered when actually received if
delivered personally or by overnight courier, sent by telecopier or telex
(promptly confirmed in writing), addressed as set forth above. Each of the
parties shall hereafter notify the other in accordance with this Section 11 of
any change of address or telecopy number to which notice is required to be
mailed.
12. Governing Law; Enforcement. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Nevada applicable to contracts made in that state, without giving effect to the
conflicts of laws principles thereof. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties are entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Nevada or in Nevada state court, this being in addition
to any other remedy to which they are entitled at law or in equity. In addition,
each of the parties hereto (a) consents to submit itself to the personal
jurisdiction of any federal court located in the State of Nevada or any Nevada
state court in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (b) agrees that it will not attempt
to deny such personal jurisdiction by motion or other request for leave from any
such court and (c) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any court
other than a federal or state court sitting in the State of Nevada.
13. Disputes. The parties agree to submit any dispute arising under
this Agreement to arbitration to be held in Reno, Nevada. Arbitration shall be
by a single arbitrator experienced in the matters at issue selected by the
parties in accordance with the commercial arbitration rules of the American
Arbitration Association. The decision of the arbitrator shall be final and
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binding as to any matter submitted to him under this Agreement. All costs and
expenses incurred in connection with such arbitration proceeding shall be borne
by the party against whom the decision is rendered.
14. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall constitute one and the same instrument.
16. Entire Agreement. This Agreement and the Letter Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede all prior negotiations, agreements and
understandings, whether written or oral, of the parties.
17. No Third-Party Rights. This Agreement is not intended, and shall
not be construed, to create any rights in any parties other than the Company and
the Purchaser and no person shall assert any rights as third-party beneficiary
hereunder.
18. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to affect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
XXXXXXXXXXX.XXX INCORPORATED
By: /s/ Xxxx Xxxxxxx
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Its: CEO
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Pequot Scout Fund, L.P.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx Pequot Capital Management, Inc.
Chief Accounting Officer Investment Advisor
Address of Purchaser:
C/o Pequot Capital Management, Inc.
Attention: Xxxxx X. Xxxxx, Chief Accounting Officer
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Tax Identification No.: 00-0000000
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