EXHIBIT 2.4
SUBSCRIPTION AGREEMENT
The undersigned, the Xxxxxxx Special Situations Fund, L.P. ("Xxxxxxx"),
hereby tenders this Subscription Agreement for the purchase of three million
(3,000,000) shares of common stock, par value $0.01, issued by Xxxxxx
Corporation, a Washington corporation (the "Company") at a price of $0.125 per
share (the "Shares") upon the terms and conditions set forth below. Payment in
the amount of $365,250 is delivered herewith to the Company, representing the
purchase price of $375,000 less a 5% commission payable to Xxxxxxx.
The undersigned is aware that the Shares have not been and will not be
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or any state securities laws, in reliance on exemptions from such registration.
The undersigned understands that reliance by the Company on such exemptions is
predicated in part upon the truth and accuracy of the statements made by the
undersigned in this Subscription Agreement.
Xxxxxxx further acknowledges, agrees and represents as follows:
(a) Authorization. Xxxxxxx has full power and authority to execute,
deliver and perform this Agreement and to acquire the Shares. This Agreement
constitutes the legal, valid and binding obligation of Xxxxxxx, enforceable
against Xxxxxxx in accordance with its terms.
(b) Purchase Entirely for Own Account. The Shares to be acquired by
Xxxxxxx will be acquired for investment for Xxxxxxx'x own account, not as a
nominee or agent and not with a view to the distribution of any part thereof.
Xxxxxxx has no present intention of selling, granting any participation in, or
otherwise distributing the Shares acquired by Xxxxxxx, except in accordance with
Section (c) below. Xxxxxxx does not have any contract, undertaking, agreement or
arrangement with any person to sell or transfer, or grant any participation to
such person or to any third person, with respect to any of the Shares to be
acquired by Xxxxxxx.
(c) Restricted Securities. Xxxxxxx understands that the Shares to be
acquired by Xxxxxxx have not been registered under the 1933 Act or the laws of
any state and may not be sold or transferred, or otherwise disposed of, without
registration under the 1933 Act and applicable state securities laws, or an
exemption therefrom, and that in the absence of an effective registration
statement covering the Shares to be acquired by Xxxxxxx, such Shares must be
held indefinitely. In the absence of an effective registration statement
covering the Shares to be acquired by Xxxxxxx, Xxxxxxx will sell, transfer, or
otherwise dispose of the Shares to be acquired by Xxxxxxx only in a manner
consistent with its representations and agreements set forth herein.
(d) Formation. Xxxxxxx represents that it was not organized for the
purpose of making an investment in the Company.
(e) Financial Condition. Xxxxxxx'x financial condition is such that it is
able to bear the risk of holding the Shares to be acquired for an indefinite
period of time and can bear the loss of its entire investment in the Shares to
be acquired. Xxxxxxx has substantial experience in evaluating and investing in
private placement transactions of securities and companies similar to the
Company so that it is capable of evaluating the merits and risks of its
investment in the Company. Xxxxxxx is an "accredited investor" as that term is
defined in Rule 501 promulgated under the 1933 Act.
(f) Receipt of Information. Xxxxxxx has been furnished access to the
business records of the Company and its Subsidiaries and such additional
information and documents as it has requested and has been afforded an
opportunity to ask questions of, and receive answers from, representatives of
the Company and its Subsidiaries concerning the terms and conditions of this
Agreement, the purchase of the Shares, the business, operations, market
potential, capitalization, financial condition and prospects of the Company and
its Subsidiaries, and all other matters deemed relevant. Xxxxxxx confirms that
it has been furnished (i) the Company's Annual Report on Form 10-KSB with
respect to the Company's fiscal year ending December 31, 1997, (ii) the
Company's Quarterly Reports on Form 10-QSB with respect to the Company's fiscal
quarters ending March 31, 1997; June 30, 1997; and September 30, 1997, (iii) a
Current Report of the Company on Form 8-K dated February 6, 1998, and (iv) a
description of the Shares and the use of proceeds from the sale thereof. None of
the foregoing documents contains an untrue statement of material fact or omits
to state a material fact
necessary to make the statements contained in such documents, in light of the
circumstances in which they are made, not misleading.
(g) Brokerage. There are no claims for brokerage commissions or finder's
fees or similar compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement made by or on behalf of
Xxxxxxx, and Xxxxxxx agrees to indemnify and hold the Company and its
Subsidiaries harmless against any damages incurred as a results of any such
claims.
(h) Further Limitations on Disposition. Xxxxxxx further agrees not to
make any disposition of all or any portion of the Shares unless and until:
(a) there is in effect a registration statement under the 1933 Act
covering such proposed disposition and such disposition is made in accordance
with such registration statement and all applicable state securities laws; or
(b)(i) Xxxxxxx shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition and (ii) Xxxxxxx shall have
furnished the Company with an opinion of counsel, reasonably satisfactory to the
Company, that such disposition will not require registration of such shares
under the 1933 Act and that all requisite action has been or will, on a timely
basis, be taken under any applicable state securities laws in connection with
such disposition.
Notwithstanding the provisions of clauses (a) and (b) above, no such
registration statement or opinion of counsel shall be necessary for a transfer
by Xxxxxxx (i) pursuant to Rule 144(k) promulgated under the 1933 Act, (ii)
pursuant to Rule 144A promulgated under the 1933 Act or (iii) a transfer by
Xxxxxxx to a partner of Xxxxxxx as a distribution to partners and not a sale,
if, in the case of clauses (i) and (ii) above, the transferee agrees in writing
to be subject to the terms hereof to the same extent as if such transferee were
an original investor hereunder.
(i) Legends. It is understood that the certificates evidencing the Shares
may bear substantially the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND SUCH SECURITIES MAY NOT
BE OFFERED FOR RESALE, SOLD, ASSIGNED OR OTHERWISE HYPOTHECATED FOR VALUE
(INCLUDING BY ANY PLEDGEE) UNLESS (A) THE SECURITIES ARE REGISTERED UNDER THE
SECURITIES ACT AND THE SECURITIES LAWS OF ALL APPLICABLE STATES OF THE UNITED
STATES, OR (B) THE SECURITIES ARE OFFERED AND SOLD IN COMPLIANCE WITH AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS AND, AT THE OPTION OF THE COMPANY,
THE HOLDER PROVIDES AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO SUCH
EFFECT.
This Subscription Agreement shall be enforced, governed and construed in
all respects in accordance with the laws of the State of New York (excluding,
however, all choice of law provisions in New York law) and all parties hereto
consent and agree to exclusive venue in Seattle, Washington. This Subscription
Agreement and the rights, powers and duties set forth herein shall be binding
upon the undersigned, the undersigned's heirs, estate, legal representatives,
successors and assigns and shall inure to the benefit of the Company, its
successors and assigns.
REPRESENTATIVES OF XXXXXXX HAVE CAREFULLY READ THE FOREGOING AND UNDERSTAND THAT
IT RELATES TO RESTRICTIONS UPON XXXXXXX'X ABILITY TO SELL AND/OR TRANSFER THE
SHARES AND THAT THE SIGNIFICANCE TO THE COMPANY OF THE FOREGOING REPRESENTATIONS
IS THAT THEY WILL BE RELIED UPON BY THE COMPANY.
Date: May 5, 1998.
XXXXXXX SPECIAL SITUATIONS FUND, L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
by: /s/ Xxx X. Xxxxxx
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General Partner
