NOTE PURCHASE AGREEMENT
AGREEMENT made as of this 18th day of May 2005, by and between ROO Group,
Inc. (the "Company") and Xxxxxx Xxxxx ("Xxxxx").
W I T N E S S E T H:
WHEREAS, the Company requires funding for its continued operations as a
provider of technology and content required for video to be played on the
Internet;
WHEREAS, the Company desires to issue to Xxxxx and Xxxxx has agreed to
purchase from the Company, a $600,000 principal amount promissory note (the
"Note"), substantially in the form attached hereto as Exhibit A; and
WHEREAS, as partial consideration for the Purchase Price (defined below),
the Company is entering into a certain Registration Rights Agreement (the
"Registration Rights Agreement") entered into as of May 18, 2005, in the form
attached hereto as Exhibit B.
NOW THEREFORE, in consideration of the mutual covenants and promises
herein contained and upon the terms and conditions hereinafter set forth, the
parties hereto, intending to be legally bound, agree as follows:
1. PURCHASE AND SALE OF THE NOTE.
Purchase and Sale. Upon the terms and conditions herein contained, at the
Closing (as hereinafter defined), the Company agrees to sell the Note to Xxxxx
and Xxxxx agrees to purchase the Note from the Company, which note shall be
secured by a general security interest in and to any and all assets of the
Company.
2. CONSIDERATION.
Purchase Price. The purchase price for the Note (the "Purchase Price")
shall be Xxxxx'x payment of Five Hundred Thousand Five Hundred Dollars
($500,500) to the Company, receipt of which is hereby acknowledged. As further
consideration for the Purchase Price, the Company shall enter into the
Registration Rights Agreement.
3. CLOSING.
3.1 Time and Place of Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") is taking place simultaneously
with the execution of this Agreement, at the offices of Sichenzia Xxxx Xxxxxxxx
Xxxxxxx LLP, at the date first set forth above (hereinafter the "Closing Date").
3.2 Delivery by the Company. At the Closing, the Company shall deliver to
Xxxxx: (a) the Note; and (b) the executed Registration Rights Agreement.
3.3 Delivery by Xxxxx. At the Closing, Xxxxx shall deliver to the the
Company the sum of Five Hundred Thousand Five Hundred Dollars ($500,500) (in a
manner to be agreed upon by Xxxxx and the Company).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Xxxxx as follows:
4.1 Due Organization and Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company has all requisite power and authority to own, lease,
operate and/or utilize its assets and properties and to carry on its business as
presently conducted and as presently contemplated, to the extent material to the
business of the Company. The Company is duly qualified to transact business and
in good standing in each jurisdiction in which the nature of its business or the
locations of its property requires such qualification, except where the failure
to do so would not have a material adverse effect on the Company's business,
operations, assets or condition (financial or otherwise).
4.2 Power and Authority. The Company has the requisite corporate power and
authority to execute and deliver this Agreement and the Note and to perform its
obligations hereunder and thereunder. The execution, delivery and performance of
this Agreement and the consummation of the transaction contemplated hereby have
been duly authorized by all necessary corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the Company and
is a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, moratorium, insolvency, reorganization or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally. When executed and delivered by the Company at the
Closing, the Note will be a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by bankruptcy, moratorium, insolvency or other
similar laws generally affecting the enforcement of creditors' rights, specific
performance, injunctive or other equitable remedies.
4.3 No Breach; Consents. The execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions contemplated
hereby will not (i) result in any lien upon any of the property of the Company
(other than in favor of Xxxxx) or (ii) violate, conflict with or otherwise
result in the breach of any of the terms and conditions of, result in a material
modification of or accelerate or trigger the rights of any person under, or
constitute (or with notice or lapse of time or both would constitute) a default
under (a) any instrument, contract or other agreement to which the Company is a
party or by or to which it or any of its properties is bound or subject; (b) any
law applicable to the Company or any of its properties or operations; or (d) any
permit. No consent, approval or authorization of, or declaration or filing with,
any governmental authority or other person is required that has not been
obtained on the part of the Company in connection with the execution, delivery
or performance of this Agreement or the consummation of the transactions
contemplated hereby, except such filings as may be required or advisable under
federal or state securities laws.
5. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS OF XXXXX. Xxxxx
hereby represents, warrants and acknowledges to the Company as follows:
5.1 Investment Purposes. Xxxxx is acquiring the Note for his own account,
for investment purposes only and not with a view to resale or other distribution
thereof, nor with the intention of selling, transferring or otherwise disposing
of all or any part of the Note, or any interest therein, for any particular
price, or at any particular time, or upon the happening of any particular event
or circumstances, except selling, transferring, or disposing of such Note made
in full compliance with all applicable provisions of the Securities Act of 1993
(the "Act") and the Securities Exchange Act of 1934 ("Exchange Act"), and the
Rules and Regulations promulgated by the Securities and Exchange Commission
thereunder, all as amended; and that such Note must be held indefinitely unless
it is subsequently registered under the Act, or an exemption from such
registration is available.
5.2 Sophisticated Investor. Xxxxx has sufficient knowledge and experience
of financial and business matters, is able to evaluate the merits and risks of
purchasing the Note and has had substantial experience in previous private and
public purchases of securities.
6. POST-CLOSING COVENANTS.
6.1 Further Assurances. Each of the parties hereto shall, prior to, on or
after the Closing, as may be appropriate, execute such documents and other
papers and take such other further actions as may be reasonably required to
carry out the provisions hereof and effectuate the transactions contemplated
hereby and in the Note. Each such party hereto shall use its best efforts to
fulfill or obtain the fulfillment of the conditions to the Closing, including
obtaining any consents required in connection herewith.
7. Miscellaneous
7.1 Binding Effect; Benefits. This Agreement shall inure to the benefit
of, and shall be binding upon, the parties hereto and their respective
successors and permitted assigns. Except as otherwise set forth herein, this
Agreement may not be assigned by any party hereto without the prior written
consent of the other party hereto. Except as otherwise set forth herein, nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto or their respective successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
7.2 Notices. All notices, requests, demands and other communications which
are required to be or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when delivered in person, or transmitted
by telecopy or telex, or upon receipt after dispatch by certified or registered
first class mail, postage prepaid, return receipt requested, to the party to
whom the same is so given or made, at the following addresses (or such others as
shall be provided in writing hereinafter):
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(a) If to the Company, to:
ROO Group, Inc.
00 Xxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, XX 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
(b) If to Xxxxx, to:
Xxxxxx Xxxxx
c/o Roo Group, Inc.
00 Xxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
7.3 Entire Agreement. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, oral and written, between
the parties hereto with respect to the subject matter hereof.
7.4 Headings. The section and other headings contained in this Agreement
are for reference purposes only and shall not be deemed to be a part of this
Agreement or to affect the meaning or interpretation of this Agreement.
7.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
7.6 Governing Law. This Agreement shall be construed as to both validity
and performance and enforced in accordance with and governed by the laws of the
State of New York, without giving effect to the conflicts of law principles
thereof.
7.7 Severability. If any term or provision of this Agreement shall to any
extent be invalid or unenforceable, the remainder of this Agreement shall not be
affected thereby, and each term and provision of the Agreement shall be valid
and enforced to the fullest extent permitted by law.
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7.8 Arbitration. Any controversy or dispute arising out of or in
connection with this Agreement, its interpretation, performance or termination,
which the parties hereto are unable to resolve within a reasonable time after
written notice from one (1) party to the other of the existence of such
controversy or dispute shall be determined by arbitration. Such arbitration
shall be in accordance with the rules and procedures then in effect of the
National Association of Securities Dealers, Inc. by a securities industry panel.
The costs and expenses of such arbitration, including attorney's fees and
expenses, shall be awarded as determined by the arbitrators.
7.9 Amendments. This Agreement may not be modified or changed except by an
instrument or instruments in writing executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
THE COMPANY:
ROO GROUP, INC.
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Chief Financial Officer
XXXXX:
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
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