EXHIBIT 10.1
EQUALNET HOLDING CORP.
LEXUS COMMERCIAL ENTERPRISES, LTD.
SUBSCRIPTION AGREEMENT
DATED AS OF JULY 1, 1997
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OF THE UNITED STATES OF AMERICA (THE "ACT")
OR THE SECURITIES LAWS OF CERTAIN STATES OF THE UNITED STATES OF AMERICA AND ARE
BEING OFFERED AND SOLD IN RELIANCE ON THE REGULATION S EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PREMITTED THEREIN OR UNDER SAID ACT AND SUCH
LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT
BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY
STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY OF THE UNITED STATES
OF AMERICA. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
THE SECURITIES MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S.
PERSONS (AS SUCH TERM IS DEFINED IN SECTION 902(O) OF REGULATION S PROMULGATED
UNDER THE ACT) (OTHER THAN DISTRIBUTORS) UNLESS THE SECURITIES ARE REGISTERED
UNDER THE ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS
AVAILABLE.
NO ACTION HAS BEEN OR WILL BE TAKEN IN ANY JURISDICTION BY THE COMPANY OR
BY ANY PRIVATE PLACEMENT AGENT THAT WOULD PERMIT A SALE OF THE SECURITIES IN ANY
JURISDICTION WHERE ACTION FOR THAT PURPOSE IS REQUIRED. NO OFFER OR SALE OF THE
SECURITIES MAY BE MADE IN ANY JURISDICTION EXCEPT UNDER CIRCUMSTANCES THAT WILL
RESULT IN COMPLIANCE WITH THE APPLICABLE LAWS THEREOF.
SUBSCRIPTION AGREEMENT
This Subscription Agreement dated as of July 1, 1997, is between Lexus
Commercial Enterprises, Ltd. ("Purchaser") and EqualNet Holding Corp., a Texas
corporation (the "Company"). Purchaser and the Company agree as follows:
1. AUTHORIZATION AND PURCHASE OF STOCK
The Company will authorize the issuance and sale of 508,968 shares (the
"Securities") of the Company's common stock, par value $.01 per share (the
"Common Stock") to purchaser for $2.063 per share, for an aggregate purchase
price of $1,050,000 (the "Purchase Price"). The Purchase Price shall be paid by
a secured promissory note made payable to the order of the Company in an
aggregate principal amount of the Purchase Price in the form attached hereto as
Exhibit A (the "Note"). The Note will be secured by a pledge of the Securities.
2. SALE AND PURCHASE OF SECURITIES
2.1 Subject to the terms and conditions of this Agreement, the Company
will issue and sell to Purchaser and Purchaser will purchase from the Company,
at the Closing provided for in Section 3, the Securities, in exchange for the
Note, duly executed and delivered. A single certificate (the "Certificate")
representing the Securities shall be issued to Purchaser, which certificate
shall be pledged to the Company, together with an executed stock power undated
and endorsed in blank (the "Stock Power").
2.2 This pledge of the Securities shall be released in accordance with the
provisions of the Note.
3. CLOSING
The sale and purchase of the Securities shall occur at a closing held on
July 1, 1997, or on such other business day (as defined herein) thereafter as
may be agreed upon by the Company and Purchaser (the "Closing"). At the Closing
the Purchaser will deliver to the Company the Note and the Stock Power. The
Company will issue and deliver the Certificate to Purchaser, but will retain
possession of the Certificate as collateral for the Note.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchaser that (i) the Company is a
corporation validly existing and in good standing under the laws of the state of
Texas and (ii) the Company has the corporate power ad authority to own or hold
under lease the properties it purports to own or hold under lease, to transact
the business it transacts and proposes to transact, to execute and deliver this
Agreement and the Securities and to perform the provisions hereof.
5. REPRESENTATIONS OF THE PURCHASER
Purchaser represents to the Company as follows:
A. The offer to purchase the Securities was made to Purchaser outside of
the United States, and at the time this Agreement was prepared and executed,
Purchaser was outside of the United States.
B. Purchaser is not a "U.S. Person" (as such term is defined in Section
902 of Regulation S) promulgated under the Act.
C. Purchaser is purchasing the Securities for its own account for
investment and not purchasing the Securities for the account or benefit of a
U.S. Person, and not with a view to, or for sale in connection with, any
distribution thereof, nor with any present intention of selling or distributing
any of the Securities, and Purchaser has no obligation, indebtedness or
commitment providing for the disposition thereof.
D. Each distributor participating in the offering of the Securities, if
any, will agree in writing that all offers and sales of the Securities prior to
the expiration of a period commencing on the date of this transaction and ending
one year thereafter shall be made pursuant to registration under the Act or an
exemption from such registration.
E. All offers and sales of the Securities acquired hereby prior to the
expiration of a period commencing on the Closing Date of this transaction and
ending one year thereafter shall be made pursuant to registration under the Act
or an exemption from such registration.
F. All offering documents received by Purchaser include statements to the
effect that the Securities have not been registered under the Act and that the
Securities may not be offered or sold in the United States or to U.S. Persons
(other than distributors) unless the shares are registered under the Act or an
exemption from the registration requirements of the Act is available.
G. No representations or warranties have been made to Purchaser by the
Company, or any its officers, employees or agents.
H. Purchaser is familiar with and understands the terms and conditions
contained in Regulation S.
I. There have been no "directed selling efforts" (as such term is defined
in Section 902 of Regulation S) relating to Purchaser, and Purchaser is not
engaged in a distribution of the Securities.
J. Purchaser has full power and authority to enter into and to perform its
obligations under this Agreement. The execution, delivery and performance by
Purchaser of this Agreement have been duly authorized by all necessary action on
its part, and this Agreement has been duly executed and delivered by Purchaser.
K. Purchaser understands that its investment in the Securities and the
Company involves substantial risks. Purchaser has independently examined and
investigated the Company in making its decision to invest in the Company and the
Securities. Purchaser or its representatives have made inquiry deemed by
Purchaser to be satisfactory concerning the Company, its business and services,
its officers and its personnel. The officers, directors, shareholders, employees
and agents of the Company have made available to Purchaser any and all
information it has requested in connection with this investment. The officers of
the Company have answered to Purchaser's satisfaction all inquiries made by it
in connection with this investment. In making this investment, Purchaser has
relied solely upon information made available to it by the Company, and not upon
information supplied by any other person. In making its decision to invest in
the Securities, Purchaser has relied solely upon the advice of its own legal
counsel with respect to the form and terms of this Agreement and related
documents and the status and legal and business effect of such instruments and
agreements in connection with its own personal circumstances and applicable law.
Purchaser has substantial knowledge and experience in financial and business
matters such that it is capable of evaluating the merits and risks of an
investment in the Company, and Purchaser is able to bear the economic risk of
that investment.
L. Purchaser is an "accredited investor" as defined in Rule 501(a) under
the Act.
M. Purchaser has retained no finder or broker in connection with the
transactions contemplated by this Agreement and will indemnify and save the
Company harmless from and against any and all claims, liabilities or obligations
with respect to brokerage or finder's fees or commissions, or consulting fees in
connection with the transactions contemplated by this Agreement asserted by any
person on the basis of any statement or representation alleged to have been made
by such indemnifying party.
6. RESTRICTIONS ON TRANSFER
The parties hereto agree that the Certificate shall have an endorsement of
a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE ACT OF 1933, AS
AMENDED, OF THE UNITED STATES OF AMERICA (THE "ACT") OF THE SECURITIES
LAWS OF CERTAIN STATES OF THE UNITED STATES OF AMERICA AND NO INTEREST
THEREIN MAY BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION AND QUALIFICATION OR COMPLIANCE WITH THE PROVISIONS OF
REGULATION S OF THE ACT WITHOUT AN OPINION OF COUNSEL FOR THE HOLDER THAT
SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED, WHICH OPINION AND
COUNSEL SHALL BE REASONABLY SATISFACTORY TO THE COMPANY.
THESE SECURITIES ARE PLEDGED AS COLLATERAL FOR A SECURED PROMISSORY
NOTE DATED THE DATE OF THESE SECURITIES AND ISSUED TO THE ISSUER OF THESE
SECURITIES BY THE REGISTERED HOLDER HEREOF.
Such legend shall be removed by the Company upon delivery to it of an opinion,
which opinion and counsel rendering same shall be reasonably satisfactory to the
Company and its counsel that a registration statement under the Act is at the
time effective with respect to the transfer of the legended security or that
such security can be transferred without such registration statement being in
effect and without the requirements of a legend on the certificate in the hands
of the transferee, and upon release of the Securities as provided in the Note.
Purchaser agrees that it will resell the Securities only in accordance
with the provisions of Regulation S under the United States Securities Act of
1933, or pursuant to an available exemption from registration under such Act,
and that it will not transfer record or beneficial interest in the Securities to
any person unless such person agrees to be bound by the provisions of this
paragraph.
7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ENTIRE AGREEMENT
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Securities, the purchase or
transfer by Purchaser of the Securities or portion thereof or interest therein
and the payment of the Note, and may be relied upon by the Company regardless of
any investigation made at any time by or on behalf of the Company. Subject to
the preceding sentence, this Agreement and the Note embody the entire agreement
and understanding between Purchaser and the Company and supersede all prior
agreements and understandings relating to the subject matter hereof or any other
proposed transaction.
8. NOTICES
All notices and communications provided for hereunder shall be in writing
and sent (a) by telecopy if the sender on the same day sends a confirming copy
of such notice by a recognized international delivery service (charges prepaid),
or (b) by a recognized international delivery service (with charges prepaid).
Any such notice must be sent:
(i) if to Purchaser to:
Lexus Commercial Enterprises, Ltd.
Attention:___________________________
-----------------------------------
London_____________________________
United Kingdom
with a copy to:
Mr. Xxxxxxx Xxxxxx Xxxxx
00 Xx. Xxxxx'x Xxxxxx
Xxxxxx XX0X 0XX
or at such other address as it shall have specified to the Company in writing;
(ii) if to the Company, to:
EqualNet Holding Corp.
Attn: Xxxxxxx X. Xxxxxx
0000 Xxxx Xxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
XXX
with a copy to:
Xx. Xxxxxx X. Xxxx, Xx.
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
XXX
Notices under this Section will be deemed given only when actually received.
9. REGISTRATION RIGHTS
Subject to Purchaser making timely payments of amounts due under the Note,
as promptly as practicable after the date hereof, the Company will file a
registration statement on Form S-3 (or any successor form) the (the "Shelf
Registration") with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933 permitting the disposition of the Securities in
accordance with the intended methods thereof as specified in writing by the
Purchaser. Subject to Purchaser making timely payments of amounts due under the
Note, the Company will use its commercially reasonable efforts to have the Shelf
Registration declared effective by the SEC as soon as practicable after the
filing date and to at all times maintain the effectiveness thereof.
10. CONFIDENTIAL INFORMATION
For the purposes of this Section 10, "Confidential Information" means
information delivered to Purchaser by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is clearly marked or labeled or otherwise
adequately identified when received by Purchaser as being confidential
information of the Company or such Subsidiary, provided that such term does not
include information that (a) was publicly known or was otherwise disclosed to
Purchaser by a third party prior to the time of such disclosure to Purchaser by
the Company, (b) subsequently becomes publicly known through no act or omission
by Purchaser or any person acting on its behalf, (c) otherwise becomes known to
Purchaser other than through disclosure by the Company or any Subsidiary, or (d)
constitutes financial statements that are otherwise publicly available.
Purchaser will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by Purchaser in good faith to protect
confidential information of third parties delivered to Purchaser, provided that
Purchaser may deliver or disclose Confidential Information to (i) its financial
and legal advisors and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with the
terms of this Section 10, or (ii) any other person to which such delivery or
disclosure may be necessary in its opinion (w) to effect compliance with any
law, rule, regulation or order applicable to Purchaser, (x) in response to any
subpoena or other legal process, (y) in connection with any litigation to which
Purchaser is a party.
11. MISCELLANEOUS
11.1 Successors and Assigns
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns whether so expressed or not.
11.2 Severability
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
11.3 Construction
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained
herein, so that compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by any person,
or which such person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such person.
As used herein, the term "Person" shall include natural persons, corporations,
partnerships and any other form of entity. As used herein, "business day" means
any day other than Saturday, a Sunday or a day on which commercial banks in
Houston, Texas are required or authorized to be closed.
11.4 Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
11.5 Governing Law
This Agreement shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Texas
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
EXECUTED as of the date first written above.
LEXUS COMMERCIAL ENTERPRISES, LTD.
By:______________________________________
Name:____________________________________
Title:_____________________________________
ACCEPTED as of the date first written above.
EQUALNET HOLDING CORP.
By:_______________________________________
Xxxxxxx X. Xxxxxx, Chief Operating Officer
