EXHIBIT 10.1
EXECUTION COPY
XXXXXXX.XXX, INC.
000 XXXXX XXXXXXXXX, 00XX XXXXX
XXXXX XXXX, XXXXXXXXXX 00000
March 15, 2002
General Atlantic Partners 74, L.P.
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
This letter agreement (the "Agreement") sets forth the terms upon
which General Atlantic Partners 74, L.P. (the "Purchaser") agrees to loan on the
date hereof an aggregate of $1,000,000 (the "Loan") to Xxxxxxx.xxx, Inc., a
Delaware corporation (the "Company") in consideration of a 9% Senior Promissory
Note, dated the date hereof (the "Note" and, together with this Agreement, the
"Transaction Documents") made by the Company in favor of the Purchaser. The Loan
shall be subject to the terms and conditions set forth in the Transaction
Documents.
1. Purchase and Sale of Note. Subject to the terms and conditions
set forth in the Transaction Documents, on the date hereof, the Purchaser agrees
to fund the Loan to the Company and the Company agrees to issue to the
Purchaser, the Note in the form attached hereto as Exhibit A.
2. Representations and Warranties of the Company.
(a) The Company (i) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and (ii) has the corporate power and authority to execute, deliver
and perform its obligations under this Agreement and the Note.
(b) The execution, delivery and performance by the Company
of this Agreement and the Note and the transactions contemplated hereby and
thereby (i) have been duly authorized by all necessary corporate action of the
Company, (ii) do not contravene the terms of the Amended and Restated
Certificate of Incorporation of the Company or the Amended and Restated Bylaws
of the Company, (iii) do not violate, conflict with or result in any breach,
default or contravention of (or with due notice or lapse of time or both would
result in any breach, default or contravention of), or the creation of any lien
or encumbrance under, any contractual obligation of the Company or its
subsidiaries or any law, statute, treaty, rule, regulation, right, privilege,
qualification, license or franchise or determination of an arbitrator or a court
or other governmental or
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regulatory authority or stock exchange applicable to the Company or its
subsidiaries and (iv) do not violate any judgment, injunction, writ, award,
decree or order of any nature of any governmental or regulatory authority
against, or binding upon, the Company or its subsidiaries.
(c) This Agreement and the Note have been duly executed
and delivered by the Company, and constitute, the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
(d) The Company and its representatives used no form of
general solicitation or general advertising in connection with the offer and
sale of the Note. The offer, sale and issuance of the Note will require no
registration of the Note pursuant to the provisions of the Securities Act of
1933, as amended, or any state securities or "blue sky" laws.
3. Representations and Warranties of the Purchaser.
(a) The Purchaser has the requisite limited partnership
power and authority to execute, deliver and perform its obligations under this
Agreement and the Note.
(b) The execution, delivery and performance by such
Purchaser of this Agreement and and the transactions contemplated hereby and by
the Note have been duly authorized by all necessary limited partnership action
of the Purchaser.
(c) This Agreement constitutes the legal, valid and
binding obligations of the Purchaser, enforceable against it in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
4. Amendment. Any amendment, supplement or modification of or to
any provision of this Agreement, any waiver of any provision of this Agreement,
and any consent to any departure by the Company or the Purchaser from the terms
of any provision of this Agreement, shall be effective (i) only if it is made or
given in writing and signed by the Company and the Purchaser and (ii) only in
the specific instance and for the specific purpose for which made or given.
5. Assignment. The Purchaser may at any time assign its rights
and obligations under this Agreement and the Note to any of its affiliates (as
defined in Rule 12b-2 promulgated under Securities Exchange Act of 1934, as
amended). Neither this Agreement, the Note nor the rights, duties and
obligations of the Company hereunder or
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thereunder may be assigned by the Company at any time, by operation of law or
otherwise, without the prior written consent of the Purchaser.
6. Expenses. The Company shall reimburse the Purchaser for all
its reasonable costs and expenses, including, without limitation, all reasonable
legal fees, disbursements and other charges of counsel, incurred in connection
with any enforcement of this Agreement and the Note and the Purchaser's rights
hereunder.
7. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF. THE COMPANY CONSENTS TO THE EXCLUSIVE
JURISDICTION AND VENUE OF THE STATE OR FEDERAL COURTS LOCATED IN XXX XXXX XX XXX
XXXX XXX XXX XXXXX XX XXX XXXX. SERVICE OF PROCESS BY THE HOLDER IN CONNECTION
WITH ANY DISPUTE SHALL BE BINDING ON THE COMPANY IF SENT TO THE COMPANY BY
REGISTERED MAIL AT THE ADDRESS SPECIFIED IN SECTION 15 OF THE NOTE. THE COMPANY
WAIVES ANY RIGHT THE COMPANY MAY HAVE TO JURY TRIAL.
8. Counterparts. This Agreement may be executed in two
counterparts and by the parties hereto in separate counterparts, both of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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Please confirm your acceptance of and agreement to the above
terms by dating and signing this letter and returning one executed copy to the
undersigned.
Very truly yours,
XXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
ACCEPTED AND AGREED:
GENERAL ATLANTIC PARTNERS 74, L.P.
By: General Atlantic Partners, LLC,
its general partner
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
