EX-4.2
COMMON STOCK PURCHASE AGREEMENT
JUSTWEBIT .COM
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made
as of the 10th day of December, 1999, by and between XxxxXxxXx.xxx, a
Nevada corporation (the "Company"), and Newport Federal Financial, a
California corporation and licensed finance lender (or its designated
assignees, the "Investor").
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties hereto agree as follows:
1. Purchase and Sale of Stock. Subject to the terms and
conditions of this Agreement, the Investor hereby purchases, and the
Company hereby sells and issues to the Investor or its designated
assignee, 180,000 shares of the Company's common stock (the "Common
Stock"), for the aggregate amount of $1,800.00 (the "Purchase Price").
2. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Investor that:
(a) Organization Good Standing and Qualification. 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 carry on its business as now
conducted and as proposed to be conducted. The Company is duly
qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material
adverse effect on its business or properties.
(b) Capitalization. All of the outstanding shares of
Common Stock are duly and validly authorized and issued, fully paid
and nonassessable, and were issued in accordance with the registration
or qualification provisions of the Securities Act of 1933, as amended
(the "Securities Act"), and any relevant state securities laws or
pursuant to valid exemptions therefrom.
(c) Subsidiaries. Except for Media Rage of Utah, Inc., a
wholly owned subsidiary of the Company, the Company does not currently
own or control, directly or indirectly, any interest in any other
corporation, association, or other business entity. The Company is
not a participant in any joint venture, partnership, or similar
arrangement.
(d) Authorization. The Company has taken all corporate
action on the part of the Company, necessary for the authorization,
execution and delivery of: (i) this Agreement; (ii) the Registration
Rights Agreement, of even date herewith, by and between the Company
and the Investor, the form of which is attached hereto as Exhibit A
(the "Registration Rights Agreement"); (iii) the Promissory Note, of
even date herewith, the form of which is attached hereto as Exhibit B
(the "Note"); (iv) the Security Agreement, of even date herewith, by
and between the Company and the Investor, the form of which is
attached hereto as Exhibit C (the "Security Agreement"); and (v) the
performance of all obligations of the Company under each of the
foregoing agreements and instruments, including without limitation,
the execution of all applicable UCC financing statements related
thereto. Further, this Agreement, the Registration Rights Agreement,
the Note and the Security Agreement constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their respective terms, except (x) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights
generally, (y) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies,
and (z) to the extent the indemnification provisions contained in the
Registration Rights Agreement may be limited by applicable federal or
state securities laws (clauses (x), (y) and (z) being hereafter
collectively referred to as the "Bankruptcy Exceptions").
(e) Valid Issuance of Common Stock. The Common Stock that
is being purchased by the Investor hereunder, when issued, sold and
delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be duly and validly issued, fully
paid, and nonassessable, and will be free of restrictions on transfer
other than restrictions on transfer under this Agreement and under
applicable state and federal securities laws.
(f) Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation,
declaration or filing with, any federal, state or local governmental
authority on the part of the Company is required in connection with
the consummation of the transactions contemplated by this Agreement,
except for the filing pursuant to Section 25102(f) of the California
Corporate Securities Law of 1968, as amended, and the rules
thereunder.
(g) Offering. Subject in part to the truth and accuracy of
the Investor's representations set forth in Section 3 of this
Agreement, the offer, sale and issuance of the Common Stock as
contemplated by this Agreement are exempt from the registration
requirements of the Securities Act.
(h) Litigation. There is no action, suit, proceeding or
investigation pending or currently threatened against the Company that
questions the validity of this Agreement, the Registration Rights
Agreement, or the right of the Company to enter into such agreements,
or to consummate the transactions contemplated hereby or thereby, or
that might result, either individually or in the aggregate, in any
material adverse changes in the assets, condition, affairs or
prospects of the Company, financially or otherwise, or any change in
the current equity ownership of the Company, nor is the Company aware
that there is any basis for the foregoing.
(i) Intellectual Property. The Company has taken all
reasonable steps to protect its use, and to maintain the
confidentiality, of all material inventions, patents, trademarks,
service marks, trade names, copyrights, trade secrets, information and
other proprietary rights and processes related to its business as now
conducted and as proposed to be conducted.
(j) Patents and Trademarks. The Company has sufficient
title and ownership of all patents, trademarks, service marks, trade
names, copyrights, trade secrets, information, proprietary rights and
processes necessary for its business as now conducted and as proposed
to be conducted without any conflict with or infringement of the
rights of others. There are no outstanding options, licenses, or
agreements of any kind relating to the foregoing, nor is the Company
bound by or a party to any options, licenses or agreements of any kind
with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information, proprietary rights
and processes of any other person or entity. The Company has not
received any communications alleging that the Company has violated or,
by conducting its business as proposed, would violate any of the
patents, trademarks, service marks, trade names, copyrights or trade
secrets or other proprietary rights of any other person or entity.
The Company is not aware that any of its employees is obligated under
any contract (including licenses, covenants or commitments of any
nature) or other agreement, or subject to any judgment, decree or
order of any court or administrative agency, that would interfere with
the use of his or her best efforts to promote the interests of the
Company or that would conflict with the Company's business as proposed
to be conducted.
(k) Compliance with Other Instruments. The Company is not
in violation or default of any provision of its Articles of
Incorporation (the "Articles") or Bylaws, or in any material respect
of any instrument, judgment, order, writ, decree or contract to which
it is a party or by which it is bound, or, to its knowledge, of any
provision of any federal or state statute, rule or regulation
applicable to the Company. The execution, delivery and performance of
this Agreement, the Registration Rights Agreement, the Note and the
Security Agreement and the consummation of the transactions
contemplated hereby and thereby will not result in any such violation
or be in material conflict with or constitute, with or without the
passage of time and giving of notice, either a material default under
any such provision, instrument, judgment, order, writ, decree or
contract or an event that results in the creation of any material
lien, charge or encumbrance upon any assets of the Company or the
suspension, revocation, impairment, forfeiture, or nonrenewal of any
material permit, license, authorization, or approval applicable to the
Company, its business or operations or any of its assets or
properties.
(l) Permits. The Company has all franchises, permits,
licenses, and any similar authority necessary for the conduct of its
business as now being conducted by it, the lack of which would have a
material adverse effect on the business, properties, prospects, or
financial condition of the Company, and the Company believes it can
obtain, without undue burden or expense, any similar authority for the
conduct of its business as planned to be conducted. The Company is
not in default in any material respect under any of such franchises,
permits, licenses, or other similar authority.
(m) Environmental and Safety Laws. To its knowledge, the
Company is not in violation of any applicable statute, law or
regulation relating to the environment or occupational health and
safety, and to its knowledge, no material expenditures are or will be
required in order to comply with any such existing statute, law or
regulation.
(n) Registration Rights. Except as provided in the
Registration Rights Agreement, the Company has not granted or agreed
to grant any registration rights, including piggyback rights, to any
person or entity.
(o) Title to Property and Assets. Except as contemplated
under this Agreement, the Company owns its property and assets free
and clear of all mortgages, liens, loans and encumbrances, except such
encumbrances and liens that arise in the ordinary course of business
and do not materially impair the Company's ownership or use of such
property or assets. No pledge or transfer of any security interest
has been made with respect to any of the Company's properties or
assets. With respect to the property and assets it leases, the
Company is in compliance with such leases and, to its knowledge, holds
a valid leasehold interest free of any liens, claims or encumbrances.
(p) Financial Statements. The financial statements and
schedules of the Company, together with the notes thereto (the
"Financial Statements"), included in the Company's annual and
quarterly reports on Forms 10-KSB and 10-QSB present fairly the
consolidated financial condition of the Company as of the respective
dates thereof and the consolidated results of operations and cash
flows of the Company for the periods covered thereby, all in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the entire period involved, except as
otherwise disclosed in such reports. Since the latest date of the
Financial Statements, there has not been any event or condition of any
type that has materially and adversely affected the business
properties or financial condition of the Company.
(q) Tax Returns Payments and Elections. The Company has
filed all tax returns and reports. The Company has paid all taxes and
other assessments due, except those contested by it in good faith and
for which adequate reserves have been established in accordance with
generally accepted accounting principles.
(r) Insurance. The Company has in full force and effect
fire and casualty insurance policies, with extended coverage,
sufficient in amount (subject to reasonable deductibles) to allow it
to replace any of its properties that might be damaged or destroyed.
The Company has in full force and effect products liability and errors
and omissions insurance in amounts customary for companies similarly
situated.
(s) Labor Agreements and Actions. The Company is not bound
by or subject to (and none of its assets or properties is bound by or
subject to) any written or oral, express or implied, contract,
commitment or arrangement with any labor union, and no labor union has
requested or, to the Company's knowledge, has sought to represent any
of the employees, representatives or agents of the Company. To its
knowledge, the Company has complied in all material respects with all
applicable state and federal equal employment opportunity and other
laws related to employment.
(t) Disclosure. Neither this Agreement, the Registration
Rights Agreement, the Note, the Security Agreement, any other
statements or certificates made or delivered in connection herewith,
or therewith, nor any of the Company's registration statements or
reports filed under the Securities Act or the Securities Exchange Act
of 1934, as amended, contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements
herein or therein not misleading.
3. Representations and Warranties of the Investor. The
Investor hereby represents and warrants that:
(a) Authorization. The Investor has full power and
authority to enter into this Agreement and the Registration Rights
Agreement, and each such agreement constitutes the Investor's valid
and legally binding obligation, enforceable in accordance with such
agreement's terms, subject to the Bankruptcy Exceptions.
(b) Purchase Entirely for Own Account. The Common Stock to
be received by the Investor will be acquired for investment for the
Investor's own account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and that the
Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing
this Agreement, the Investor further represents that it does not have
any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any third
person, with respect to any of the Common Stock it is purchasing.
(c) Investment Experience. The Investor is an experienced
investor in securities of companies in the development stage and
acknowledges and represents that it is able to fend for itself, can
bear the economic risk of its investment, and has such knowledge and
experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Common Stock.
The Investor also represents it has not been organized for the purpose
of acquiring the Common Stock.
(d) Accredited Investor. The Investor is an "accredited
investor" within the meaning of Securities and Exchange Commission
("SEC") Rule 501 of Regulation D under the Securities Act, as
currently in effect.
(e) Restricted Securities. The Investor understands that
the Common Stock it is purchasing is characterized as "restricted
securities" under the federal securities laws inasmuch as such
securities are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable
regulations such securities may not be resold in the absence of an
effective registration statement covering the Common Stock or of an
exemption from registration under the Securities Act. In this
connection, the Investor represents that it is familiar with SEC Rule
144, as currently in effect, and understands the resale limitations
imposed thereby and by the Securities Act.
4. Securities Matters.
(a) California Corporate Securities Law. The sale of the
Common Stock that are the subject of this Agreement has not been
qualified with the Commissioner of Corporations of the State of
California and the issuance of these securities or the payment or
receipt of any part of the consideration for the Common Stock prior to
such qualification is unlawful, unless the sale of the Common Stock is
exempt from qualification by Section 25100, 25102 or 25105 of the
California Corporations Code. The rights of all parties to this
Agreement are expressly conditioned upon such qualification being
obtained, unless the sale is so exempt.
(b) Legends. The certificates evidencing the Common Stock
may bear one or all of the following legends:
(i) "These securities have not been registered under
the Securities Act of 1933, as amended. They may not be sold, offered
for sale, pledged or hypothecated in the absence of a registration
statement in effect with respect to the securities under the
Securities Act or an opinion of counsel satisfactory to the Company
that such registration is not required or unless sold pursuant to Rule
144 of the Securities Act."
(ii) Any legend required by the laws of the State of
California, including any legend required by the California Department
of Corporations and Sections 417 and 418 of the California
Corporations Code.
5. Conditions of Investor's Obligations. The obligations of
the Investor under this Agreement are subject to the fulfillment of
each of the following conditions:
(a) Representations and Warranties. The representations
and warranties of the Company and the Shareholders contained in
Section 2 are true.
(b) Performance. The Company has performed and complied
with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it.
(c) Qualifications. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of
the United States or of any state that are required in connection with
the lawful issuance and sale of the securities pursuant to this
Agreement have been duly obtained and are effective.
(d) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated under
this Agreement and all documents incident thereto are reasonably
satisfactory in form and substance to Investor's counsel, and they
have received all such counterpart original and certified or other
copies of such documents as they may reasonably request.
(e) Registration Rights Agreement. The Company and the
Investor have executed and delivered the Registration Rights Agreement.
(f) Promissory Note. The Company has executed and
delivered the Note to the Investor.
(g) Security Agreement. The Company and the Investor have
executed and delivered the Security Agreement and the Company has
executed and delivered all applicable UCC financing statements related
thereto.
(h) Corporate Guaranty. XXXX.xxx, Inc. (f.k.a. Interjet
Net Corporation), a Delaware corporation, has executed and delivered
to the Investor that certain Corporate Guaranty, the form of which is
attached hereto as Exhibit D.
(i) Attorneys' Fees. The Company has delivered to Xxxxxx,
Xxxx & Xxxxxxxx LLP, counsel to the Investor, an amount equal to the
actual attorneys' fees, expenses and disbursements incurred in
connection with the preparation of this Agreement and the completion
of the transactions contemplated hereby; provided that the Company
will not be liable for any payment in excess of $5,000.
6. Conditions of the Company's Obligations. The obligations of
the Company to the Investor under this Agreement are subject to the
fulfillment of each of the following conditions by the Investor:
(a) Representations and Warranties. The representations
and warranties of the Investor contained in Section 3 are true.
(b) Payment of Purchase Price. The Investor has delivered
to the Company the Purchase Price.
(c) Funding of Loan. The Investor has delivered to the
Company the loan amount as described in the Note.
7. Assurances. The Company shall take all actions required to
ensure that the rights granted to the Investor under this Agreement,
the Warrant Agreement, the Registration Rights Agreement, the Note and
the Security Agreement are effective and that the Investor enjoys the
benefits hereof and thereof. The Company will not, by any voluntary
action, avoid or seek to avoid the observance or performance of any of
the terms to be performed hereunder or thereunder by the Company, but
will at all times in good faith assist in the carrying out of all of
the provisions of the foregoing agreements and instruments and in the
taking of all actions as may be necessary or appropriate in order to
protect the rights provided hereunder and thereunder against impairment.
8.Miscellaneous.
(a) Survival of Representations and Warranties. The
representations and warranties of the Company and the Investor
contained in or made pursuant to this Agreement will survive the
execution and delivery of this Agreement and will in no way be
affected by any investigation of the subject matter thereof made by or
on behalf of the Investor or the Company.
(b) Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement will inure to the
benefit of and be binding upon the respective successors and assigns
of the parties (including transferees and assignees of any Common
Stock being purchased by the Investor hereunder). Nothing in this
Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided in this Agreement.
(c) Governing Law. This Agreement will be governed by and
construed under the internal laws of the State of California.
(d) Construction. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement. The language of this
Agreement is to be construed and interpreted simply, according to its
fair meaning, and is not to be strictly construed for or against any
party hereto regardless of the source of draftsmanship.
(e) Notices. Unless otherwise provided, any notice
required or permitted under this Agreement must be given in writing
and will be deemed effectively given upon personal or facsimile
delivery to the party to be notified or three days after deposit with
the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof, or at
such other address as such party may designate by ten days' advance
written notice to the other party.
(f) Finder's Fee. Each party represents that it neither is
nor will be obligated for any finders' fee or commission in connection
with this transaction. The Investor shall indemnify the Company from
any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Investor or any of its
officers, partners, employees, or representatives is responsible. The
Company shall indemnify the Investor from any liability for any
commission or compensation in the nature of a finders' fee (and the
costs and expenses of defending against such liability or asserted
liability) for which the Company or any of its officers, employees or
representatives is responsible.
(g) Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the
Registration Rights Agreement, the Note or the Security Agreement, the
prevailing party will be entitled to actual attorneys' fees, costs and
necessary disbursements in addition to any other relief to which such
party may be entitled.
(h) Amendments and Waivers. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the
Company and the Investor.
(i) Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such
provision will be excluded from this Agreement and the balance of the
Agreement will be interpreted as if such provision were so excluded
and will be enforceable in accordance with its terms.
(j) Entire Agreement. This Agreement and the documents
referred to herein constitute the entire agreement between the parties
and no party will be liable or bound to any other party in any manner
by any representations, warranties or covenants except as specifically
set forth herein or therein.
(k) Counterparts. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
THE COMPANY:
XxxxXxxXx.xxx,
a Nevada corporation
By: /s/ J.R. Xxxxxx
J.R. Xxxxxx
President and Chief Executive
Officer
Address: 000 Xxxxx Xxxx Xxxxxx,
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Facsimile: (000) 000-0000
THE INVESTOR:
Newport Federal Financial,
a California corporation and
licensed finance lender
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
President
Address: 0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
