Exhibit 1 - Securities Purchase Agreement
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of April 11, 2001, between INTEL
CORPORATION, a Delaware corporation ("Seller") and HONG KONG JADE BIRD SCIENCE
AND TECHNOLOGY LIMITED, a Hong Kong corporation (the "Purchaser").
1. Sale of Stock. Subject to the terms and conditions contained herein, on the
Settlement Date (as defined below), Seller hereby agrees to sell and deliver
to Purchaser and Purchaser hereby agrees to purchase from Seller 3,073,750
shares of Common Stock (the "Common Shares") of Xxxx.xxx, Inc., a Delaware
Corporation (the "Company"), at a price equal to US$1.18 per share of the
Company's Common Stock (the "Purchase Price").
2. Settlement. Subject to satisfaction of the conditions of settlement
specified in Section 3 of this Agreement, Settlement of the sale and purchase
under Section 1 of this Agreement (the "Settlement") shall take place on April
[ ], 2001 at 5:00 p.m. in Hong Kong, or on such other date, time or place as
Purchaser and Seller may mutually agree (the "Settlement Date"). On the
Settlement Date, Seller shall cause to be delivered to Purchaser a certificate
or certificates for the Common Shares or shall deliver appropriate
instructions for book entry transfer, against delivery by the Purchaser to
Seller of the Purchase Price. The Purchase Price shall be paid by wire
transfer of immediately available funds to such account or accounts as the
Seller shall designate in writing.
3. Conditions of Settlement . The obligation of Purchaser to purchase and pay
for the Common Shares, and the obligation of Seller to sell and deliver the
Common Shares, is subject to satisfaction of each of the following conditions:
(a) all representations and covenants of Seller and Purchaser contained in
Sections 4 and 5 shall be true and correct in all respects on and as of the
Settlement Date, with the same force and effect as though such representations
and covenants had been made on and as of the Settlement Date; and (b)
Purchaser and Seller shall have delivered the representation letters attached
hereto as Exhibit A and Exhibit B, respectively, to such transfer agent and
the Company.
4. Representations and Covenants of Seller. Seller represents, warrants and
agrees that:
a) Seller beneficially owns and has the unrestricted right (other than as
such right may be restricted by laws of general application, including
the Securities Act of 1933, as amended (the "Act") and the Xxxx.xxx
Inc. Second Amended and Restated Stockholders' Voting Agreement, as
amended ("Voting Agreement")) to transfer the Common Shares, free and
clear of all liens, claims, charges and other encumbrances.
b) Seller has full right, power and authority to enter into this Agreement
and to transfer the Common Shares in accordance with the terms of this
Agreement and this Agreement constitutes a legal, valid and binding
obligation of Seller.
c) Seller's execution, delivery and performance of the Agreement do not
violate or conflict with any law applicable to it, any agreement or
instrument to which it is a party, any order or judgment of any court
or other agency of government applicable to it or any of its assets, or
any contractual restriction binding on or affecting it or any of its
assets.
5. Representations and Covenants of Purchaser. Purchaser represents, warrants
and agrees that:
a) Purchaser is acquiring the Common Shares to be acquired by it hereunder
for its own account and will resell such Common Shares only in
transactions which would be permissible under the securities laws of
the United States of America or any state thereof.
b) Purchaser is an "accredited investor" as such term is defined in
Regulation 230.501(a) under the Act.
c) Purchaser is aware that, until the Company is reasonably satisfied in
accordance with industry practice that such legend is not required, a
legend similar to the following may appear on the certificates
representing the Common Shares: "These securities have not been
registered under the Securities Act of 1933 and may be re-offered and
sold only if so registered or if any exemption from registration is
available."
d) Purchaser has full right, power and authority to enter into this
Agreement, and to purchase the Common Shares from Seller on the terms
described herein, and this Agreement constitutes a legal, valid and
binding obligation of Purchaser.
e) Purchaser acknowledges and represents that it has made its own
investigation into the merits and risks of entering into the
transaction contemplated by this agreement and that it has the capacity
and financial experience to evaluate the same. Purchaser believes it
has received all the information it considers necessary or appropriate
for deciding whether to acquire the Common Shares and has had an
opportunity to secure all such information as it deems necessary
regarding the business, properties, prospects and financial condition
of the Company.
f) The Purchaser understands that the Common Shares have not been
registered under the Act, nor qualified under any state securities
laws, and that they are being offered and sold pursuant to an exemption
from such registration and qualification based in part upon the
representations of the Purchaser contained herein. The Purchaser
understands that the Common Shares being purchased hereunder are
restricted securities within the meaning of Rule 144 under the Act;
that the Common Shares are not registered and must be held indefinitely
unless they are subsequently registered or an exemption from such
registration is available.
6. Law Governing. This Agreement shall be governed by and constructed in
accordance with the laws of the State of Delaware without reference to choice
of law doctrine.
7. Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors, and assigns of the parties
hereto.
8. Registration Rights and Voting Agreement. Seller is transferring
its rights to Purchaser pursuant to Section 4(1)b of the Xxxx.xxx Inc. Third
Amended and Restated Investors Rights Agreement dated February 1, 2000 (the
"Investors Rights Agreement") subject to all the terms and conditions
contained in the Investors Rights Agreement, as amended. The Purchaser
acknowledges that it will be subject to the terms and conditions contained in
the Voting Agreement.
9. Miscellaneous. This Agreement may be executed concurrently in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Each counterpart may be
delivered by facsimile transmission, which transmission shall be deemed
delivery of an originally executed document. The headings of the Sections
hereof are inserted for convenience only and shall not be deemed to constitute
a part hereof. This Agreement constitutes the entire Agreement between the
parties with respect to the subject matter hereof and supersedes all the
previous agreements, promise or representations, whether written or oral,
between the parties.
10. Fees and Expenses. Each of the Purchaser and Seller agrees to pay its
own expenses and disbursements incident to the performance of its obligations
hereunder.
11. Amendment and Waiver. This Agreement may be amended only by a
written agreement executed by each of the parties hereto. No amendment of or
waiver of, or modification of any obligation under this Agreement will be
enforceable unless set forth in a writing signed by the party against which
enforcement is sought. Any amendment effected in accordance with this section
will be binding upon all parties hereto and each of their respective
successors and assigns. No delay or failure to require performance of any
provision of this Agreement shall constitute a waiver of that provision as to
that or any other instance. No waiver granted under this Agreement as to any
one provision herein shall constitute a subsequent waiver of such provision or
of any other provision herein, nor shall it constitute the waiver of any
performance other than the actual performance specifically waived.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
SELLER: INTEL CORPORATION
By: ____________________________________
Name:
Title:
PURCHASER: HONG KONG JADE BIRD SCIENCE AND TECHNOLOGY LIMITED
By: _____________________________________
Name:
Title:
[SECURITIES PURCHASE AGREEMENT BETWEEN INTEL CORPORATION AND HONG KONG JADE
BIRD SCIENCE AND TECHNOLOGY LIMITED]
EXHIBIT A
FORM OF PURCHASER'S REPRESENTATION LETTER
April 11, 2001
INTEL CORPORATION
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
In connection with the purchase by the undersigned of 3,073,750 shares of
Common Stock (the "Common Shares") of Xxxx.xxx, Inc., a Delaware Corporation
(the "Company"), at a price US$1.18 per share of the Company's Common Stock
(the "Purchase Price"), the undersigned, being a duly authorized officer of
Hong Kong Jade Bird Science and Technology Limited, a Hong Kong Company (the
"Purchaser"), hereby represents to you that:
1. Purchaser is acquiring the Common Shares to be acquired by it
hereunder for its own account and will resell such Common Shares only
in transactions which would be permissible under the securities laws
of the United States of America or any state thereof.
2. Purchaser is an "accredited investor" as such term is defined in
Regulation 230.501(a) under the Securities Act of 1933, as amended
(the "Act").
3. Purchaser acknowledges that the Common Shares have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act") or the securities laws of any state, and, as a
result thereof, the Common Shares are "restricted securities" as
defined in Rule 144 under the Securities Act and are subject to
substantial restrictions on transfer, and that the Common Shares and
certificates evidencing the same will bear a legend reflecting such
restrictions.
4. Purchaser understands that the Common Shares are being
offered and sold by Seller in reliance on exemptions from the
registration requirements of federal and state securities laws and
that the Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and
understandings set forth herein in order to determine the
applicability of such exemptions.
Counsel to the Company is entitled to rely on this letter in connection with
rendering its opinion letter to the Company or the transfer agent for the
common stock of the Company in connection with the sale of the Common Shares
by Seller to Purchaser.
Very truly yours,
HONG KONG JADE BIRD SCIENCE AND TECHNOLOGY LIMITED
By:_________________________
Title:_______________________
EXHIBIT B
FORM OF SELLER'S REPRESENTATION LETTER
April 11, 2001
HONG KONG JADE BIRD SCIENCE AND TECHNOLOGY LIMITED
Xxxx 00, 0xx Xxxxx, Asia Pacific Center, 0 Xxxxxxx Xxxxxx, Xxxx Xxxx
In connection with the sale by the undersigned of up to 3,073,750 shares of
Common Stock (the "Common Shares") of Xxxx.xxx, Inc., a Delaware Corporation
(the "Company"), at a price US$1.18 per share of the Company's Common Stock
(the "Purchase Price"), the undersigned, being a duly authorized officer of
Intel Corporation, a Delaware corporation (the "Seller"), hereby represents to
you that:
1. Seller acquired 77,325 shares of Preferred B-1 Convertible
Stock from the Company (traunch I) on March 12, 1998 and paid for
such shares on March 12, 1998; and 77,325 shares of Preferred B-1
Convertible Stock on August 30, 1998, and paid for such shares on
August 30, 1998 (traunch II). The Preferred Shares were acquired in a
private placement transaction pursuant to Regulation 230.506
promulgated under the Securities Act of 1933, as amended (the "Act").
2. Upon the completion of the initial public offering of the
Company on or about July 12, 2000, the Preferred Shares were
automatically converted into 3,350,750 shares of Common Stock of the
Company, adjusted for stock splits. Seller did not pay any additional
consideration for the shares of Common Stock received upon such
conversion. The Common Shares which Seller is selling to Purchaser
are part of this block of shares.
Counsel to the Company is entitled to rely on this letter in connection with
rendering its opinion letter to the Company or the transfer agent for the
common stock of the Company in connection with the sale of the Common Shares
by Seller to Purchaser.
Very truly yours,
INTEL CORPORATION
By:_________________________
Title:_______________________
