EXHIBIT 10.01 - Agreement dated November 15, 1997 between the Company and LS
Capital Corporation.
AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of this
the 15th day of November, 1997 by and between (a) JVWeb, Inc. a Delaware
corporation (the "Company"), and (b) LS Capital Corporation, a Delaware
corporation ("LS Capital").
Recitals:
WHEREAS, the Company desires to issue and sell to LS Capital units
("Units") comprised of shares of common stock in the Company ("Common Stock")
and warrants to purchase shares of Common Stock, and LS Capital desires to
receive and purchase Units, in each cases upon the terms, provisions and
conditions set forth herein;
WHEREAS, in connection with the issuance and sale of the Units, the
Company and LS Capital intend that the Company will register with the United
States Securities and Exchange Commission (the "Commission") an in-kind dividend
(the "Dividend") to the stockholders of LS Capital consisting a portion of the
Units being issued and sold to LS Capital pursuant hereto; and
WHEREAS, the Company and LS Capital desire to set forth in writing the
terms, provisions and conditions pertaining to the sale and issuance of Units to
LS Capital and pertaining to the Dividend;
Agreement:
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, $10.00 and other good and valuable consideration (the receipt, adequacy
and sufficiency of which are hereby acknowledged by each of the parties hereto),
each of the Company and LS Capital hereby agrees as follows:
1. General Representations and Warranties.
(a) LS Capital hereby represents and warrants to the Company that LS
Capital has been duly organized, is validly existing and is in good standing in
the jurisdiction in which it was incorporated; LS Capital has full right, power
and authority to execute and deliver this Agreement and all other agreements,
documents and instruments to be executed in connection herewith and perform LS
Capital's obligation hereunder and thereunder; the execution and delivery by LS
Capital of this Agreement and all other agreements, documents and instruments to
be executed by LS Capital in connection herewith have been authorized by all
necessary corporate action by LS Capital; when this Agreement and all other
agreements, documents and instruments to be executed by LS Capital in connection
herewith are executed by LS Capital and delivered to the Company, this Agreement
and such other agreements, documents and instruments will constitute the valid
and binding agreements of LS Capital enforceable against LS Capital in
accordance with their respective terms; neither the execution and delivery of
this Agreement or any other agreements, documents and instruments to be executed
in connection herewith nor the consummation of the transactions contemplated
hereby or thereby will (i) violate, conflict with or result in the breach or
termination of, or otherwise give any other contracting party the right to
terminate, or constitute a default (by way of substitution, novation or
otherwise) under the terms of, any contract to which LS Capital is a party or by
which LS Capital is bound or by which any of the assets of LS Capital is bound
or affected, (ii) violate any judgment against, or binding upon, LS Capital or
upon the assets of LS Capital, (iii) result in the creation of any lien, charge
or encumbrance upon any assets of LS Capital pursuant to the terms of any such
contract, or (iv) violate any provision in the charter documents, bylaws or any
other agreement affecting the governance and control of LS Capital; there are no
actions, suits, claims or legal, administrative or arbitration proceedings or
investigations pending or threatened against, involving or affecting any of the
assets of LS Capital, this Agreement, or the transactions contemplated hereby
(other than as described in LS Capital's filings with the Commission), and there
are no outstanding orders, writs, injunctions or decrees of any court,
governmental agency or arbitration tribunal against, involving or affecting any
assets of LS Capital, this Agreement, or the transactions contemplated hereby;
no consent or approval from any person on the part of LS Capital is required in
connection with the execution and delivery of this Agreement other than board of
director approval of LS Capital, which has already been obtained; and the
representations and warranties made immediately above and elsewhere herein are
material to the Company and are being relied upon by the Company in connection
with its decision to issue and sell Units to LS Capital pursuant to Section 2 of
this Agreement.
(b) The Company hereby represents and warrants to LS Capital that (in
all cases, upon the Company's organization) the Company has full right, power
and authority to execute and deliver this Agreement and all other agreements,
documents and instruments to be executed by the Company in connection herewith
(including, without limitation, the Warrant Agreement, as defined herein) and
perform the Company's obligation hereunder and thereunder; the Company will be
duly organized, validly existing and in good standing in the jurisdiction in
which the Company will be incorporated; the authorized capital stock of the
Company consists of 50 million shares of Common Stock, 6.2 million of which were
issued and outstanding as of the date hereof, and 10 million shares of preferred
stock, none of which were issued and outstanding as of the date hereof; Xxxx
Xxxxx owns all 6.2 million shares of the outstanding Common Stock; the execution
and delivery by the Company of this Agreement and all other agreements,
documents and instruments to be executed by the Company in connection herewith
(including, without limitation, the Warrant Agreement) will be authorized by all
necessary corporate action; when this Agreement and all other agreements,
documents and instruments to be executed by the Company in connection herewith
(including, without limitation, the Warrant Agreement) are executed by the
Company and delivered to LS Capital, this Agreement and such other agreements,
documents and instruments will constitute the valid and binding agreements of
the Company enforceable against the Company in accordance with their respective
terms; neither the execution and delivery of this Agreement or any other
agreements, documents and instruments to be executed in connection herewith
(including, without limitation, the Warrant Agreement) nor the consummation of
the transactions contemplated hereby or thereby will (i) violate, conflict with
or result in the breach or termination of, or otherwise give any other
contracting party the right to terminate, or constitute a default (by way of
substitution, novation or otherwise) under the terms of, any contract to which
the Company is a party or by which the Company is bound or by which any of the
assets of the Company is bound or affected, (ii) violate any judgment against,
or binding upon, the Company or upon the Company's assets, (iii) result in the
creation of any lien, charge or encumbrance upon any of the Company's assets
pursuant to the terms of any such contract, or (iv) violate any provision in the
charter documents, bylaws or any other agreement affecting the governance and
control of it; there are no actions, suits, claims or legal, administrative or
arbitration proceedings or investigations pending or threatened against,
involving or affecting any of the Company's assets, this Agreement, or the
transactions contemplated hereby, and there are no outstanding orders, writs,
injunctions or decrees of any court, governmental agency or arbitration tribunal
against, involving or affecting any of the Company's assets, this Agreement, or
the transactions contemplated hereby; no consent or approval from any person is
required on the party of the Company in connection with the execution and
delivery of this Agreement other than board of director approval, which will be
obtained upon organization; the shares of Common Stock to be issued to LS
Capital pursuant to this Agreement shall be duly authorized, validly issued,
fully paid and non-assessable at the time that they are issued; and the
representations and warranties made immediately above and elsewhere herein are
material to LS Capital and are being relied upon by LS Capital in connection
with LS Capital's decision to purchase Units pursuant to Section 2 of this
Agreement.
2. Sale and Purchase of Units.
(a) Each Unit shall consist of one share of Common Stock and two
separately assignable (i.e. "detachable") "First Tier Warrants." In addition to
the other rights pertaining thereto, the exercise of each First Tier Warrant
shall entitled the holder thereof to receive, without the payment of any
additional amount, two "Second Tier Warrants." In addition to the other rights
pertaining thereto, the exercise of each Second Tier Warrant shall entitled the
holder thereof to receive, without the payment of any additional amount, one
"Third Tier Warrant." First Tier Warrants, Second Tier Warrants and Third Tier
Warrants are referred to hereinafter collectively as the "Warrants." Each
Warrant shall entitle the holder thereof to purchase one share of Common Stock
at any time within three years after the date it is issued at a purchase price
of $1.00 (in the case of the First Tier Warrants), $2.00 (in the case of the
Second Tier Warrants) and $5.00 (in the case of the Third Tier Warrants). Each
Warrant shall be redeemable at any time after the Common Stock has had, for 10
consecutive trading days, a per-share closing price above $1.25 (in the case of
the First Tier Warrants), $2.35 (in the case of the Second Tier Warrants) and
$5.50 (in the case of the Third Tier Warrants). The redemption price shall be
$.01 per Warrant. The Company and LS Capital expect that the Warrants will
eventually be in a registered, book-entry form.
(b) On the execution of this Agreement, LS Capital paid to the Company
the aggregate amount of $5,000.00, the receipt of which the Company hereby
acknowledges. In consideration of the payment of the foregoing amount, the
Company delivered to LS Capital a stock certificate representing 500,000 shares
of Common Stock and a warrant agreement (the Warrant Agreement"), a copy of
which is attached hereto, creating 1,000,000 First Tier Warrants. LS Capital
hereby acknowledges preparation and execution of such stock certificate and the
Warrant Agreement and its agreement that the Company shall hold such stock
certificate and the Warrant Agreement pending completion of the Dividend. LS
Capital hereby agrees that, promptly after the Company enters into an agreement
with a transfer agent with regard to the creation of the Warrants in a
registered, book-entry form, the Warrant Agreement shall be cancelled, and thus
the underlying First Tier Warrants created thereby, and in connection therewith
LS Capital shall be issued 1,000,000 First Tier Warrants in a registered,
book-entry form.
3. Securities Representations and Warranties. LS Capital hereby
represents and warrants to the Company that it is familiar with the business and
financial condition, properties, operations and prospects of the Company, it has
been given full access to all material information concerning the condition,
properties, operations and prospects of the Company, it has had an opportunity
to ask such questions of, and to receive such information from, the Company as
it has desired and to obtain any additional information necessary to verify the
accuracy of the information and data received, and it is satisfied that there is
no material information concerning the condition, properties, operations and
prospects of the Company, of which it is unaware; LS Capital has such knowledge,
skill and experience in business, financial and investment matters so that it is
capable of evaluating the merits and risks of an acquisition of its shares of
Common Stock; LS Capital has reviewed its financial condition and commitments
and that, based on such review, it is satisfied that it (a) has adequate means
of providing for contingencies, (b) has no present or contemplated future need
to dispose of all or any of its shares of Common Stock to satisfy existing or
contemplated undertakings, needs or indebtedness, (c) is capable of bearing the
economic risk of the ownership of the shares of Common Stock to be issued to it
for the indefinite future, and (d) has assets or sources of income which, taken
together, are more than sufficient so that it could bear the loss of the entire
value of the shares of Common Stock being issued to it; LS Capital is acquiring
its shares of Common Stock solely for its own beneficial account, for investment
purposes, and not with a view to, or for resale in connection with, any
distribution of its shares of Common Stock; LS Capital understands that its
shares of Common Stock have not been registered under the Securities Act of 1933
(the "Act") or any state securities laws and therefore its shares of Common
Stock are "restricted" under such laws until such time as they are registered;
and LS Capital has not offered or sold any portion of its shares of Common Stock
and has no present intention of reselling or otherwise disposing of any portion
of its shares of Common Stock either currently or after the passage of a fixed
or determinable period of time or upon the occurrence or non-occurrence of any
predetermined event or circumstance (other than the registration thereof).
4. Securities Registration. Within six months after the date of this
Agreement, the Company shall file a registration statement to register the
Dividend with the Commission. The Dividend shall consist of 250,000 of the
shares of Common Stock issued and sold to LS Capital pursuant hereto and all
1,000,000 of the First Tier Warrants issued and sold to LS Capital pursuant
hereto. In the event of such registration, the Company shall use its best
efforts to qualify such shares of Common Stock and First Tier Warrants under the
securities laws for each state for which an exemption is not available and
qualification is required, unless the cost and expense of such qualification
outweighs the benefit of qualification. In connection with any registration
undertaken pursuant to this Section 4, LS Capital shall use reasonable efforts
to cooperate with the Company and will furnish to the Company and in writing
such information, as shall be reasonably necessary in order to assure compliance
with federal and applicable state securities laws pertaining to disclosure and
otherwise, with respect to the Dividend. The Company shall pay all registration
expenses in connection with any registration undertaken pursuant to this Section
4.
5. Spin-Off. As soon as possible after the registration statement filed
in connection with any registration undertaken pursuant to Section 5 above is
declared effective, LS Capital shall declare and effect the Dividend to its
stockholders. In this connection, LS Capital shall deliver to each of its
stockholders receiving the registered shares of Common Stock an stock
certificate representing the shares of Common Stock that such stockholder is to
receive (unlegended except to the extent necessary to implement the agreements
described in Section 6 below) and a notification that such stockholder now owns
the number of First Tier Warrants that such stockholder is to receive, as well
as a copy of the prospectus comprising part of the registration statement
declared effective during the course of any registration undertaken pursuant to
Section 4.
6. Lock-Up Agreement. In connection with the execution of this
Agreement, Xxxx X. Xxxxxx, Xxxx X. Xxxxxxxx, Xx. and Xxxxx X. Xxxx (each a
significant stockholder of LS Capital) entered into a certain agreement, a copy
of which is attached hereto as an exhibit, in which they agreed would not sell
any Common Stock received by them in connection with the Dividend until four
weeks after public trading commenced in the Common Stock and then they (as a
group) would not sell in any three-month period a number of shares exceeding the
average weekly reported volume of trading in the Common Stock for the four weeks
most recently completed at the time at which any sale is being contemplated.
7. Exclusivity Agreement. In connection with the execution of this
Agreement, Xxxx Xxxxx entered into a certain agreement, a copy of which is
attached hereto as an exhibit, in which he agreed that he would not engage in
the electronic commerce business except by and through the Company for two years
after the date of this Agreement.
8. Termination. If the registration statement under which shares of
Common Stock are registered pursuant to Section 4 is not declared effective
within six months after the date of this Agreement through no breach of this
Agreement by the Company, or if the Company elects to terminate this Agreement
(which may be done so by giving written notice to LS Capital), this Agreement
shall, except as hereafter provided, become null and void, the parties hereto
shall be relieved of any further duties, obligations and responsibilities with
respect to this Agreement, and the parties shall cooperate in good faith in
unwinding all actions taken in reliance on this Agreement. Notwithstanding the
preceding, the following actions shall occur upon the termination of this
Agreement pursuant to the preceding:
(a) All stock certificates representing the 500,000 shares of Common
Stock issued and sold to LS Capital pursuant to this Agreement, as well as the
Warrant Agreement, shall be cancelled;
(b) The Company shall repay to LS Capital the $5,000.00 paid for its
Units; and
(c) The agreement described in Section 7 and the indemnification
provisions of Section 9 shall remain in full force and effect for two years
after the date of termination.
Notwithstanding anything else contained herein, upon the termination of
this Agreement by the election of the Company, LS Capital shall the option to
purchase 100,000 shares of Common Stock by allowing the Company to retain the
initial $5,000 payment made pursuant to Section 2 above and by remitting an
additional $5,000 payment, whereupon the Company shall deliver to LS Capital a
stock certificate issued in the name of LS Capital representing 100,000 shares
of Common Stock.
9. General Indemnification.
(a) All representations and warranties made herein by a party hereto shall
survive all transactions provided for or contemplated herein, including, without
limitation, the issuance and sale of Units to LS Capital, the Dividend and the
termination of this Agreement.
(b) The Company shall protect, indemnify and hold LS Capital, and its
officers, directors, shareholders, attorneys, accountants, employees,
affiliates, successors and assigns, harmless from any and all demands, claims,
actions, causes of actions, lawsuits, proceedings, judgments, losses, damages,
injuries, liabilities, obligations, expenses and costs (including costs of
litigation and attorneys' fees), arising from any breach of any agreement,
representation or warranty made by the Company in this Agreement.
(c) LS Capital shall protect, indemnify and hold the Company, and its
officers, directors, shareholders, attorneys, accountants, employees,
affiliates, successors and assigns, harmless from any and all demands, claims,
actions, causes of actions, lawsuits, proceedings, judgments, losses, damages,
injuries, liabilities, obligations, expenses and costs (including costs of
litigation and attorneys' fees), arising from any breach of any agreement,
representation or warranty made by LS Capital in this Agreement.
10. Securities Indemnification.
(a) The Company shall protect, indemnify and hold LS Capital, and its
officers, directors, shareholders, attorneys, accountants, employees,
affiliates, successors and assigns, harmless from any and all demands, claims,
actions, causes of actions, lawsuits, proceedings, investigations, judgments,
losses, damages, injuries, liabilities, obligations, expenses and costs
(including costs of litigation and attorneys' fees), arising out of or based
upon (a) any untrue statement or alleged untrue statement of any material fact
contained in or incorporated by reference into the registration statement under
which the shares of Common Stock are registered pursuant to Section 4, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, (b) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (c) any material violation by the Company of any rule
or regulation promulgated under Act applicable to the Company and relating to
action or inaction by the Company in connection with any such registration;
provided, however, that the Company will not be liable in the case of (a) and
(b) above if and to the extent that the event otherwise giving rise to
indemnification arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in conformity with
information furnished by a person otherwise entitled to indemnification in
writing specifically for use in the registration statement or prospectus or
information contained in a writing that has been expressly approved or deemed
approved by a person otherwise entitled to indemnification.
(b) LS Capital shall protect, indemnify and hold the Company and its
officers, directors, shareholders, attorneys, accountants, employees,
affiliates, successors and assigns, harmless from any and all demands, claims,
actions, causes of actions, lawsuits, proceedings, investigations, judgments,
losses, damages, injuries, liabilities, obligations, expenses and costs
(including costs of litigation and attorneys' fees), arising out of or based
upon (a) any untrue statement or alleged untrue statement of any material fact
contained in or incorporated by reference into the registration statement under
which shares of Common Stock are registered pursuant to Section 4, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, (b) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (c) any material violation by LS Capital of any rule
or regulation promulgated under the Act applicable to LS Capital and relating to
action or inaction by LS Capital in connection with any such registration;
provided, however, that LS Capital shall be liable in the case of (a) and (b)
above only if and to the extent that the event giving rise to indemnification
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in conformity with information furnished by
LS Capital in writing specifically for use in the registration statement or
prospectus or information contained in a writing that has been expressly
approved or deemed approved by LS Capital.
(c) Promptly after receipt by an indemnified party under this Section 10
of notice of the threat or commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
hereunder, notify each such indemnifying party in writing thereof, but the
omission so to notify an indemnifying party shall not relieve it from any
liability which it may have to any indemnified party to the extent that the
indemnifying party is not prejudice as a result thereof. In case any such action
shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 10 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so elected; provided,
however, that, if the defendants in any such action include both an indemnified
party and an indemnifying party and the related indemnified party shall have
reasonably concluded that there may be reasonable defenses available to it which
are different from or additional to those available to the indemnifying party or
if the interests of the indemnified party reasonably may be believed to conflict
with the interests of the indemnifying party, the indemnified party shall have
the right to select separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred. No indemnifying party
will be subject to any liability for any settlement made without consent which
shall not be unreasonably withheld. No indemnifying party will consent to the
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability with respect to such claim or
litigation.
11. General.
(a) THIS AGREEMENT AND ALL QUESTIONS RELATING TO ITS VALIDITY,
INTERPRETATION, PERFORMANCE, AND ENFORCEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
(b) Any controversy arising out of or relating to this Agreement or any
modification or extension thereof, including any claims for breach, for damages,
and/or for recision or reformation, shall be settled by binding arbitration in
Xxxxxx County, Texas according to the rules and regulations of the American
Arbitration Association, Commercial Arbitration Rules.
(c) This Agreement contains the entire understanding among the parties
hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, inducements, or conditions,
express or implied, oral or written, except as herein contained. This Agreement
may not be modified or amended other than by an agreement in writing signed by
all parties affected.
(d) The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
The section headings in this Agreement are for convenience only; they form no
part of this Agreement and shall not affect its interpretation.
(e) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together constitute one and
the same instrument.
(f) The parties hereto hereby agree that time is of the essence for all
purposes of this Agreement.
(g) Any notices to be given hereunder by any party to the other parties
may be effected either by personal delivery in writing, or by mail, registered
or certified, postage prepaid with return receipt requested, addressed to the
one or more parties to be notified at the addresses set forth beneath such
parties' respective signatures below.
(h) All obligations of the Company and all agreements made herein for
the benefit of the Company shall become effective immediately upon the formation
and organization of the Company. The person signing this Agreement on behalf of
the Company shall use reasonable efforts to cause the Company to be formed. Upon
the formation of the Company, such person shall have no further obligations or
liability pertaining to the Company or this Agreement except as is expressly
agreed to by such person in writing.
IN WITNESS WHEREOF, the parties hereto have signed their names hereto
as of the first date written above.
JVWEB, INC. LS CAPITAL CORPORATION
a Delaware corporation a Delaware corporation
By: /s/ Xxxx X. Xxxxx By /s/Xxxx X. Xxxxxx
Xxxx Xxxxx, Xxxx X. Xxxxxx,
President Chief Executive Officer
Address: 5444 Westheimer, Suite 2080 Address: 00000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000 Xxxxx 000
Xxxxxxx, Xxxxx 00000
Exhibit
AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of this
the 15th day of November, 1997 by and between (a) JVWeb, Inc., a Delaware
corporation (the "Company"), and (b) Xxxx X. Xxxxxx ("Xxxxxx"), Xxxx X.
Xxxxxxxx, Xx. ("Xxxxxxxx") and Xxxxx X. Xxxx ("Xxxx"), each a stockholder of
LS Capital Corporation, a Delaware corporation ("LS Capital"). Montle,
Lovelace and Cope are referred to hereinafter separately as a "Shareholder"
and collectively as the "Shareholders."
Recitals:
WHEREAS, the Company has entered into an agreement with LS Capital,
whereby the Company will to issue and sell to LS Capital units ("Units")
comprised of shares of common stock in the Company ("Common Stock") and warrants
to purchase shares of Common Stock, and whereby the Company will register with
the United States Securities and Exchange Commission an in-kind dividend (the
"Dividend") to the stockholders of LS Capital consisting a portion of the Units
being issued and sold to LS Capital pursuant hereto; and
WHEREAS, as a condition to the Company's entering into the agreement
described in the preceding recital, the Company required the Shareholders to
enter into this Agreement;
Agreement:
NOW, THEREFORE, in consideration of the Company's agreement to enter
into the agreement described in the first recital set forth above, $10.00 and
other good and valuable consideration (the receipt, adequacy and sufficiency of
which are hereby acknowledged by each Shareholder), each Shareholder hereby
agrees that such Shareholder shall not, without the prior express written
consent of the Company, (a) sell any shares of Common Stock received in
connection with the Dividend until twelve weeks after public trading has
commenced in the Common Stock, or (b) thereafter sell in any three-month period
more than 10,000 shares of Common Stock received in connection with the
Dividend. Each Shareholder hereby agrees that all stock certificates
representing shares of Common Stock received by him in connection with the
Dividend shall bear a restrictive legend in order to implement the restrictions
imposed by this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed their names hereto
as of the first date written above.
JVWEB, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxx /s/ Xxxx X. Xxxxxx
Xxxx Xxxxx, President Xxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxxxx, Xx. /s/ Xxxxx X. Xxxx
Xxxx X. Xxxxxxxx, Xx. Xxxxx X. Xxxx
EXHIBIT
AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of this
the 15th day of November, 1997 by and between (a) Xxxx Xxxxx ("Xxxxx"), and (b)
LS Capital Corporation, a Delaware corporation ("LS Capital").
Recitals:
WHEREAS, LS Capital has entered into an agreement with JVWeb, Inc., a
Delaware corporation (the "Company"), whereby the Company will to issue and sell
to LS Capital units ("Units") comprised of shares of common stock in the Company
("Common Stock") and warrants to purchase shares of Common Stock, and whereby
the Company will register with the United States Securities and Exchange
Commission an in-kind dividend to the stockholders of LS Capital consisting a
portion of the Units being issued and sold to LS Capital pursuant hereto; and
WHEREAS, as a condition to the LS Capital's entering into the agreement
described in the preceding recital, LS Capital required Xxxxx to enter into this
Agreement;
Agreement:
NOW, THEREFORE, in consideration of LS Capital's agreement to enter
into the agreement described in the first recital set forth above, $10.00 and
other good and valuable consideration (the receipt, adequacy and sufficiency of
which are hereby acknowledged by Xxxxx), Xxxxx hereby agrees that he shall not
engage in the electronic commerce business anywhere in the world, except by and
through the Company, for two years after the date of this Agreement. Xxxxx
hereby specifically acknowledges and agrees that the temporal and other
restrictions contained in this Agreement are reasonable and necessary to protect
the rights of LS Capital under the agreement described in the first recital set
forth above and its investment in the Company, and that the enforcement of the
provisions of this Agreement will not work an undue hardship on him. Xxxxx
further agrees that in the event either the length of time or any other
restriction, or portion thereof, set forth in this Agreement is held to be
overly restrictive and unenforceable in any court proceeding, the court may
reduce or modify such restrictions to those which it deems reasonable and
enforceable under the circumstances and the parties agree that the restrictions
of this Agreement will remain in full force and effect as reduced or modified.
Xxxxx further agrees and acknowledges that LS Capital does not have an adequate
remedy at law for the breach or threatened breach by him of the covenants
contained in this Agreement, and Xxxxx therefore specifically agrees that LS
Capital, in addition to other remedies which may be available to it hereunder,
may file a suit in equity to enjoin Xxxxx from such breach or threatened breach.
Xxxxx further agrees, in the event that any provision of this Agreement is held
to be invalid or against public policy, the remaining provisions of this
Agreement and the remainder of this Agreement shall not be affected thereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have signed their names hereto
as of the first date written above.
LS CAPITAL CORPORATION
a Delaware corporation
By:/s/ Xxxx X. Xxxxxx /s/ Xxxx Xxxxx
Xxxx X. Xxxxxx Xxxx Xxxxx
President
