STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, entered into this day of July, 1998, by and
between TTR Inc., a Delaware corporation with offices in New York, New York
("TTR" or the "Company") and _________________________________ the ("Holder").
W I T N E S S E T H
WHEREAS, the Holder is the holder of Warrant No. _______ dated
__________ which grants the Holder the right to purchase up to ___________
shares of the Common Stock, par value $0.001 of the Company, on the terms and
conditions set forth in such Warrant (hereinafter the "Warrants");
WHEREAS, Company and the Holder desire to set forth their mutual
understanding regarding the disposition of the Warrants.
NOW THEREFORE, in consideration of the mutual agreements and consideration set
forth herein, the parties hereto agree as follows
1. Return of Warrant. Subject to the terms and conditions set forth herein, in
consideration of the issuance by the Company to the Holder of the Replacement
Shares (as defined below), the Holder agrees to return to the Company the
Warrants and hereby waives the right to exercise any of the rights set forth in
the Warrants. In consideration for the return of Warrants the Company agrees to
issue to the Holder 0.40 shares of its common stock for each Warrant returned by
the Holder (the "Replacement Shares").
2. Issuance of the Replacement Shares. The Company shall cause to be issued a
certificate to the Holder as soon as possible reflecting the amount of
Replacement Shares being issued hereunder.
3. Restrictions on Transfer; Holder's Representations and Warranties
3.1 General Restriction on Transfer. Except for transfers otherwise
permitted by this Agreement or applicable law, the Holder agrees that it will
not transfer any of the Replacement Shares.
3.2 Not for Resale. The Holder represents that it is acquiring the
Replacement Shares for investment for its own account and not with a view to, or
for resale in connection with, the distribution or other disposition thereof.
The Holder agrees that it will not, directly or indirectly, offer, transfer,
sell, assign, pledge, hypothecate or otherwise dispose of (each a "Transfer")
any of the Replacement Shares unless such Transfer complies with the provisions
of this Agreement and (i) the Transfer is pursuant to an effective registration
statement under the Securities Act of 1933, as amended, and the rules and
regulations in effect thereunder (the "Securities Act"), or (ii) counsel for the
Holder shall have furnished the Company with an opinion, reasonably acceptable
to the Company, that no such registration is required because of the
availability of an exemption under the Securities Act.
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3.3 Certain Permitted Transfers. (i) Notwithstanding the general
prohibition on Transfers contained herein, the Company acknowledges and agrees
that any Transfer in a private transaction which does not include a public
distribution is permitted and need not require an opinion of counsel, provided,
that prior to such Transfer, the transferee shall deliver to the Company a valid
written undertaking to be bound by the terms of this Agreement.
(ii) The Holder may sell at any time any of its Replacement Shares in a
Rule 144 Transaction (as hereinafter defined); provided, that, each such sale
shall be made in compliance with Section 3.4 below.
3.4 Rule 144 Sales. If any of the Replacement Shares are disposed of
according to Rule 144 ("Rule 144 Transaction") under the Securities Act of 1933,
as amended or otherwise, the Purchaser shall promptly notify the Company of such
intended disposition and shall deliver to the Company at or prior to the time of
such disposition such documentation as the Company may reasonably request in
connection with such sale and, in the case of a disposition pursuant to Rule
144, shall deliver to the Company an executed copy of any notice on Form 144
required to filed with the Securities and Exchange Commission.
3.5 Legend. Each certificate representing the Replacement Shares shall
bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS SUCH TRANSFER, SALE OR ASSIGNMENT, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF A STOCK PURCHASE
AGREEMENT DATED AS OF July __, 1998 (A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY)."
3.6 Qualified Investor The Holder hereby represents and warrants to the
Company as follows:
(a) it has the requisite knowledge and experience in financial
and business matters to be capable of evaluating the merits and risks of this
investment and to make an informed investment decision with respect thereto, and
it or its advisors have received such information requested by them concerning
the Company in order to evaluate the merits or risks of making this investment.
Further, it is acknowledged that the holder or its attorney, accountant or
advisor have had the opportunity to ask questions of, and receive answers from,
the officers of the Company concerning the terms and conditions of this
investment and to obtain information relating to the Company.
(b) The purchase of the Replacement Shares involves risks which
it has evaluated, and is able to bear the economic risk of such purchase
including the total loss of its investment. It has been advised of the current
financial condition of the Company and of the possible adverse effects of such
financial condition on the Company's general business.
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4. Registration and Lock-Up
4.1 Registration Rights. At any time that the Company proposes to
register any of its stock or other securities under the Securities Act of 1933,
as amended (the "Act") in connection with the public offering ("public
Offering") of such securities solely for cash (other than registration relating
solely to the sale of securities to participants in a Company stock plan), the
Company shall use its best efforts to cause to be registered under the Act all
of the Replacement Shares, PROVIDED, that managing underwriter may limit the
number of Replacement Shares to such number (or none) which such underwriter
reasonably determines will not have an adverse effect on the Public Offering. If
the managing underwriter of such underwritten offering shall advise the Company
that it declines to include a portion or all of the Replacement Shares, then the
portion of Replacement Shares to be included shall be allocated among the
Holders in proportion to the respective number of Replacement Shares held by
each.
Notwithstanding the foregoing, in the event that any of the Replacement
Shares are not so registered as provided hereunder by the end of the lock-up
period referred to in Section 4.2 below, then the Company agrees to file a
registration statement [ON FORM S-3 OR OTHER APPROPRIATE FORM] under the Act,
respecting the resale of the Replacement Shares and to use reasonable efforts to
cause such registration statement to become effective as soon as practicable
thereafter. The Holder, or its counsel, shall assist the Company in completing
such registration statement, provided, that, the Company's obligations to file
the registration statement and to use its reasonable efforts to cause the same
to become effective shall be suspended in the event and during such period as
unforeseen circumstances (including, without limitation, pending negotiations
relating to, or the consummation of, a transaction or the occurrence of any
event) which, based upon advice of the Company's counsel, would require
additional disclosure of material information by the Company in the registration
statement as to which the Company has a bona fide business purpose for
preserving the confidentiality thereof or which, based upon the advice of such
counsel, renders the Company unable to comply with SEC requirements. Any such
suspension shall continue only for so long as such event is continuing.
4.2 Lock Ups. Notwithstanding anything to the contrary contained herein,
the Holder agrees that it will not, for a period of SIX months following the
date the Registration Statement is declared effective by the Commission, offer,
sell, contract to sell, grant any option to purchase or right to acquire, or
dispose of any of the Replacement Shares, but in no event will this lock-up
extend for more than one year from the date of this Agreement. Notwithstanding
the above, the Holder maintains the right to make a private transfer provided
that the transferee agrees to be bound by the same restrictions set forth in
this Agreement.
5. Miscellaneous
5.1 Notices. All notices and other communications provided herein shall
be in writing and shall be deemed to have been duly given if delivered
personally or sent by mail, postage prepaid, to a party's designated address or,
if sent by facsimile, to its facsimile number at such address.
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5.2 Counterparts; Entire Agreement. This Agreement may be executed in
counterparts. This Agreement shall constitute the entire agreement between the
parties hereto with respect to the subject matter hereof.
5.3 Binding Effect. The provisions of this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, legal representatives, successors and assigns.
5.4 Amendment. This Agreement may be amended only by a written
instrument signed by the parties hereto which specifically states that it is
amending this Agreement.
5.5 Applicable Governing Law. This Agreement and the rights and
obligations of the parties hereto shall be governed by and construed and
enforced in accordance with, the laws of the State of New York.
5.6 Headings. The headings herein are for convenience of reference only,
do not constitute a part of this Agreement, and shall not be deemed to limit,
expand or otherwise affect any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
TTR INC.
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By: By:
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