AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of May 13, 1999,
by and among eCom xXxx.xxx, Inc., a corporation duly incorporated and
existing under the laws of the State of Florida (the "Company") and Xxxxxx
Private Equity, LLC (hereinafter referred to as "Xxxxxx").
RECITALS:
WHEREAS, pursuant to the Company's offering ("Offering") of up to
Thirty Million Dollars ($30,000,000), excluding any funds paid upon
exercise of the Warrants, of Common Stock of the Company pursuant to that
certain Investment Agreement dated on or about May 13 (the "Investment
Agreement") between the Company and Xxxxxx, the Company has agreed to sell
and Xxxxxx has agreed to purchase, from time to time as provided in the
Investment Agreement, shares of the Company's Common Stock for a maximum
aggregate offering amount of Thirty Million Dollars ($30,000,000);
WHEREAS, pursuant to the terms of the Investment Agreement, the
Company has agreed to issue to the Subscriber, from time to time,
Commitment Warrants and Purchase Warrants, each as defined in the
Investment Agreement, to purchase a number of shares of Common Stock,
exercisable for five (5) years from their respective dates of issuance
(collectively, the "Warrants");
WHEREAS, pursuant to the terms of the that certain Registration Rights
Agreement dated on or about May 13 (the "Registration Rights Agreement"),
the Company has agreed to provide the Subscriber with certain registration
rights with respect to the Common Stock to be issued in the Offering and
the Common Stock issuable upon exercise of the Subscriber Warrants as set
forth in this Registration Rights Agreement; and
WHEREAS, pursuant to the terms of the Warrants, the Warrants are
exercisable in cashless exercise transactions ("Cashless Exercise") under
certain circumstances.
TERMS:
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Certain Definitions. As used in this Agreement (including the
Recitals above), the following terms shall have the following meanings
(such meanings to be equally applicable to both singular and plural forms
of the terms defined):
"Cashless Exercise" and "Cash Exercise" shall have the meaning set
forth in the Warrants.
"Common Stock" shall mean the common stock, par value $0.01, of
the Company.
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"Due Date" shall have the meaning set forth in the Registration
Rights Agreement.
"Investment Agreement" shall have the meaning set forth in the
Recitals hereto.
"Major Transaction" shall have the meaning set forth in the
Investment Agreement.
"Registration Rights Agreement" shall have the meaning set forth
in the Recitals hereto.
"Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement.
"Warrants" shall have the meaning set forth in the above Recitals.
"Warrant Shares" shall mean shares of Common Stock issuable upon
exercise of any Warrant.
2. Limitations on Cashless Exercise. Xxxxxx agrees that the Warrants
shall not be exercisable in a Cashless Exercise transaction prior to the
Due Date, provided, however, that, notwithstanding the above, if the
Company enters into a Major Transaction, the Warrants shall be exercisable
in a Cashless Exercise (or Cash Exercise) anytime thereafter.
3. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia applicable to
agreements made in and wholly to be performed in that jurisdiction, except
for matters arising under the Act or the Securities Exchange Act of 1934,
which matters shall be construed and interpreted in accordance with such
laws.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
this 13th day of May, 1999.
SUBSCRIBER:
eCom xXxx.xxx, Inc. XXXXXX PRIVATE EQUITY, LLC
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
Xxxxx Xxxxxx, CEO Xxxx X. Xxxxxx, Manager
Address: eCom eCom,com, Inc.
Attn: Xxxxx Xxxxxx, Chief Executive 0000 Xxxxxxx Xxxxxx Xxxx
Officer Xxxx. 000, Xxxxx 000
0000 Xxxxxxxx Xxxxx, Xxxxx X0 Xxxxxxx, XX 00000
Xxxxxxx Xxxxx, XX 00000 Telephone: (000) 000-0000
Telephone (000) 000-0000, ext. 104 Facsimile: (000) 000-0000
Facsimile (000) 000-0000
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