1
AFFINITY INTERNATIONAL TRAVEL SYSTEMS, INC.
SUBSCRIPTION AGREEMENT
January 29, 2001
VIA FACSIMILE
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Affinity International Travel Systems, Inc.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000X
St. Petersburg, Florida 33701-4301
Gentlemen:
This Subscription Agreement is made by and between AFFINITY
INTERNATIONAL TRAVEL SYSTEMS, INC., a Nevada corporation (the "Company"), and
Ailouros Ltd. (the "Subscriber"), in connection with the offering (the
"Offering") of certain Warrants (as defined below) to purchase shares of common
stock of the Company, $0.001 par value per share (the "Shares") pursuant to
Regulation D ("Regulation D") promulgated under the Securities Act of 1933, as
amended (the "Securities Act").
A. Subscription
1. Subscriber hereby irrevocably subscribes to purchase the
Series A Warrants and the Series B Warrants (collectively, the "Warrants") in
the form attached hereto as Exhibits A and B respectively for a price equal to
$10,000 (the "Subscription Price").
2. As part of the subscription, Subscriber herewith tenders:
(a) two copies of this Subscription Agreement duly
completed and executed by Subscriber.
(b) payment of the Subscription Price made by wire
transfer of immediately available funds in U.S.
Dollars to the account of AFFINITY INTERNATIONAL
TRAVEL SYSTEMS, INC.
3. Subscriber understands and agrees that the subscription
contained herein shall not be deemed binding upon the Company until it is
accepted by the Company (as evidenced by its execution of this Subscription
Agreement) and that the subscription may be rejected by the Company in its sole
discretion for any reason. Subscriber further acknowledges and agrees that,
subject to applicable law, this subscription is irrevocable.
4. If this subscription is not accepted by the Company, all
funds and the documents herewith delivered to the Company by Subscriber will be
returned immediately to Subscriber. In such event, all proceeds theretofore
received by the Company from the Subscriber will be refunded in full, without
interest or deduction.
5. If this subscription is accepted by the Company, then the
Company shall immediately countersign both copies of this Subscription
Agreement and return one fully executed copy to Subscriber. The Subscription
Price shall be applied to the purchase of the Warrants which Warrants shall
then be delivered to the Subscriber. All funds received from the Subscriber
hereunder or pursuant to the exercise of the Warrants shall be used by the
Company for expansion of its present business, working capital, and for general
corporate purposes in connection with the Company's present business.
B. Investor Representations
6. In order to induce the Company to accept the subscription
hereby made, and recognizing that the Company will be relying thereon in
determining whether to accept such subscription, Subscriber and Comergent
Capital Ltd. each hereby represents and warrants to the Company as of the date
of this subscription as follows:
(a) Subscriber and Comergent Capital Ltd. each
understands that the Warrants are a highly
speculative investment and that their financial
situation is such that (i) Subscriber and Comergent
Capital Ltd. each can afford to hold the Warrants
for an indefinite period of time and to sustain a
complete loss of its investment, and (ii) Subscriber
and Comergent Capital Ltd. each has adequate means
of providing for their current needs and possible
contingencies and has no need for liquidity in this
investment in the Company.
(b) Subscriber and Comergent Capital Ltd. each has
received and carefully read the Company's periodic
reports filed with the Securities and Exchange
Commission during the previous six months
(collectively, the "Reports"). The Company has also
made available to Subscriber and Comergent Capital
Ltd. all other documents and information that they
have requested relating to an investment in the
Company.
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Subscription Agreement
January 29, 2001
Page 2
(c) By virtue of Subscriber's and Comergent Capital's
knowledge and experience in financial and business
matters, Subscriber and Comergent Capital Ltd. each
is capable of evaluating the merits and risks of an
investment in the Warrants. Subscriber and Comergent
Capital Ltd. each has taken full cognizance of and
understands all the risk factors related to the
purchase of the Warrants which are set forth in the
Company's reports and registration statements filed
with the Securities and Exchange Commission.
(d) Subscriber and Comergent Capital Ltd. each
understands that the Warrants are being offered and
sold to Subscriber and Comergent Capital Ltd. in
reliance on specific provisions of federal and state
securities laws of the United States of America and
that the Company is relying upon the truth and
accuracy of the representations, warranties,
agreements, acknowledgments and understandings of
Subscriber and Comergent Capital Ltd. set forth
herein in order to determine the applicability of
such provisions. Accordingly, Subscriber and
Comergent Capital Ltd. each agrees to notify the
Company of any events which would cause the
representation and warranties of Subscriber or
Comergent Capital Ltd. to be untrue or breached at
any time after the execution of this Subscription
Agreement by Subscriber and Comergent Capital Ltd.
(e) Subscriber and Comergent Capital Ltd. each is an
"accredited investor" as defined in Rule 501
promulgated under the Securities Act of 1933, as
amended.
(f) For purposes of calculating the Exercise Price of
the Series A Warrant, the Subscriber agrees that any
low trade or bid price created by Subscriber during
the seven trading days immediately preceding the
date that a Notice of Exercise is given pursuant to
the Series A Warrant shall not be included in the
calculation of the Exercise Price.
(g) In evaluating the suitability of an investment in
the Company, neither Subscriber nor Comergent
Capital Ltd. has relied upon any representations or
other information (whether oral or written) from the
Company, and its officers, directors, agents,
employees or representatives, other than as set
forth in the Reports. With respect to tax and other
economic considerations of this investment, neither
Subscriber nor Comergent Capital Ltd. is relying for
advice on the Company, or any officers, directors,
employees or agents thereof.
(h) Subscriber and Comergent Capital Ltd. each
understands that Subscriber's subscription hereunder
is not transferable or assignable, either before or
after acceptance thereof by the Company, and that
Warrants will only be issued in the name of
Subscriber and Comergent Capital Ltd., as
applicable, and may not be assigned without the
consent of the Company.
(i) The Warrants will be acquired for Subscriber's and
Comergent Capital's own account, for investment
purposes only, and not with a view to distribution,
assignment or resale to others.
(j) Subscriber and Comergent Capital Ltd. each
understands that no federal or state agency has made
any finding or determination as to the fairness of
this offering or any recommendation or endorsement
relating to the Warrants.
(k) The address heretofore provided to the Company by
the Subscriber is the true and correct residence of
the Subscriber, and Subscriber has no present
intention of becoming a resident of any other state
or jurisdiction. (If a corporation, trust or
partnership, the Subscriber has its principal place
of business at the address set forth below and was
not organized for the specific purpose of acquiring
the Warrants).
(l) Subscriber and Comergent Capital Ltd. each
acknowledges that any delivery of offering materials
relating to the Warrants prior to the determination
by the Company of Subscriber's and Comergent
Capital's suitability as an investor shall not
constitute an offer of Warrants until such
determination of suitability shall be made.
(m) This Subscription Agreement has been duly
authorized, validly executed, and delivered on
behalf of Subscriber and Comergent Capital Ltd. and
is a valid and binding agreement enforceable in
accordance with its terms, subject to general
principles of equity and to bankruptcy or other laws
affecting the enforcement of creditors' rights
generally.
(n) Subscriber and Comergent Capital Ltd. each will not
make any offers or sales of the Shares other than
pursuant to a registration statement under the
Securities Act or pursuant to an exemption from
registration under the Securities Act. The
Subscriber and Comergent Capital Ltd. each will
comply with applicable prospectus delivery
requirements under the Exchange Act, and with all
applicable securities laws upon resale of the
Shares.
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Subscription Agreement
January 29, 2001
Page 3
(o) Subscriber and Comergent Capital Ltd. each hereby
agrees to indemnify and hold harmless the Company,
its directors, officers, agents, representatives,
and each of their affiliates against any and all
loss, liability, claim, damage and expense
(including reasonable fees of attorneys and experts)
as incurred, but only with respect to untrue
statements or omissions, or alleged untrue
statements or omissions, made in the Registration
Statement (or any amendment thereto), in reliance
upon and in conformity with any written information
furnished to the Company by Subscriber and Comergent
Capital Ltd.
C. Company Representations, Warranties and Covenants
7. The Company hereby represents, warrants, and covenants to the
Subscriber and Comergent Capital Ltd. that:
(a) The Company is validly existing and in good standing
under the laws of the State of Nevada and has all
requisite corporate power and authority to enter
into and to carry out and perform its obligations
under this Subscription Agreement, and to own its
properties and to carry on its business as now being
conducted and as proposed to be conducted. The
Company and each of its subsidiaries, if any, is
duly qualified as a foreign corporation to do
business and is in good standing in every
jurisdiction in which the nature of the business
conducted or property owned by it makes such
qualification necessary, other than those in which
the failure so to qualify would not have a Material
Adverse Effect. For purposes of this Subscription
Agreement, "Material Adverse Effect" means any
material adverse effect on the business, operations,
properties, prospects or financial condition of the
Company and its subsidiaries taken as a whole and/or
any condition or situation which would prohibit or
otherwise adversely interfere with the ability of
the Company to enter into and perform its
obligations under this Subscription Agreement, or
the Warrants or consummate the transactions
contemplated hereby and thereby.
(b) The Company will file no later than 90 days from the
date that Subscriber and Comergent Capital Ltd. has
signed this Subscription Agreement, and use its best
efforts to cause to become effective, as promptly as
possible, a registration statement ("Registration
Statement") on Form SB-2 under the Securities Act
(or in the event that the Company is ineligible to
use such form, such other form as the Company is
eligible to use under the Securities Act) covering
the resale of all shares of common stock of the
Company issuable upon exercise of the Warrants and
upon exercise of the Series C Warrants being issued
to Comergent Capital Ltd., shall maintain the
effectiveness of such Registration Statement at all
times that the Series A, Series B and Series C
Warrants are outstanding, and shall take all action
reasonably necessary to qualify the shares covered
by such Registration Statement under all applicable
state "blue sky" laws, to register such shares under
Section 12(g) or 12(b) of the Exchange Act, and to
list such shares on the principal market upon which
the Company's common stock trades.
(c) As of the date hereof, the Company has reserved and
the Company shall continue to reserve and keep
available at all times, free of preemptive rights,
shares of common stock for the purpose of enabling
the Company to satisfy any obligation to issue
Shares upon exercise of the Warrants. Initially, the
number of shares of common stock so reserved for
issuance under the Warrants and covered by the
Registration Statement shall be sufficient at all
times to cover the estimated number of shares
issuable upon exercise of the Warrants (and the
Series C Warrants) based upon prevailing market
prices. Such number of shares so reserved shall be
increased to reflect stock splits and stock
dividends and distributions.
(d) The Company shall timely file all reports required
to be filed by it with the Securities and Exchange
Commission and shall immediately publicly disclose
all material events relating to the Company, and its
operations and financial condition, and shall cause
the Registration Statement to contain all such
information as is necessary to make the information
contained therein accurate and complete in all
material respects.
(e) The Company has taken no action which would give
rise to any claim by any person for brokerage
commissions, finder's fees or similar payments by
the Subscriber or Comergent Capital Ltd. relating to
this Subscription Agreement or the transactions
contemplated hereby, except for dealings with
Comergent Capital Ltd., whose commissions and fees
will be paid for by the Company as outlined in the
Term Sheet dated November 9, 2000, and except for
dealings with Carriage House Capital, whose
commissions and fees, if any, will be paid for by
the Company.
(f) The Company has registered its common stock pursuant
to Section 12(b) or 12(g) of the Securities Exchange
Act of 1934 (the "Exchange Act"), is in full
compliance with all reporting requirements of the
Exchange Act, and has maintained all requirements
for the continued inclusion of its securities on the
Nasdaq Over-the-Counter Market.
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Subscription Agreement
January 29, 2001
Page 4
(g) The Company has not conducted any general
solicitation (as that term is used in Regulation D)
with respect to any of the Securities, nor has it
made any offers or sales of any security or
solicited any offers to buy any security, under
circumstances that would require registration of its
securities under the Securities Act of 1933 (the
"Securities Act").
(h) The Company has an authorized capitalization
consisting of 100,000,000 shares of common stock,
par value $0.001 per share, and 100,000,000 shares
of convertible preferred stock, par value $0.001 per
share. As of the date hereof, the Company has issued
and outstanding 31,838,296 shares of such common
stock, and no shares of such convertible preferred
stock. All of the issued and outstanding shares of
such common stock have been duly and validly
authorized and issued and are fully paid and
nonassessable. Upon their issuance, the Warrants and
the common stock issuable pursuant to the exercise
of the Warrants, will be duly and validly authorized
and issued and fully paid and non-assessable; and
the holders of outstanding capital stock of the
Company are not and shall not be entitled to
preemptive or other rights afforded by the Company
to subscribe for the capital stock or other
securities of the Company as a result of the sale of
the Warrants or the issuance of common stock upon
the exercise thereof.
(i) The Company has the requisite corporate power and
authority to enter into and perform this
Subscription Agreement and to issue the Warrants in
accordance with the terms hereof and thereof, (ii)
the execution, delivery and performance of this
Subscription Agreement and the Warrants by the
Company and the consummation by the Company of the
transactions contemplated hereby and thereby have
been duly authorized by all necessary corporate
action, and no further consent or authorization of
the Company or its Board of Directors or
stockholders is required, (iii) this Subscription
Agreement and the Warrants each has been duly
executed and delivered by the Company and (iv) this
Subscription Agreement and the Warrants are valid
and binding obligations of the Company enforceable
against the Company in accordance with their terms,
except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws
relating to, or affecting generally the enforcement
of, creditors' rights and remedies or by other
equitable principles of general application.
(j) The Company has furnished or made available to the
Subscriber and Comergent Capital Ltd. true and
correct copies of the Company's Certificate of
Incorporation, as in effect on the date hereof (the
"Certificate of Incorporation"), and the Company's
By-Laws, as in (b) effect on the date hereof (the
"By-Laws"), certified in each case by the Secretary
of the Company.
(k) The execution, delivery and performance of this
Subscription Agreement and the Warrants (including
the exercise thereof) by the Company and the
consummation by the Company of the transactions
contemplated hereby and thereby do not and will not
(i) result in a violation of the Certificate of
Incorporation or By-Laws or (ii) conflict with, or
constitute a default (or an event which with notice
or lapse of time or both would become a default)
under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the
Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries are
bound, or result in a violation of any federal,
state, local or foreign law, rule, regulation,
order, judgment or decree (including federal and
state securities laws and regulations) applicable to
the Company or any of its subsidiaries or by which
any property or asset of the Company or any of its
subsidiaries is bound or affected; provided that,
for purposes of such representation as to federal,
state, local or foreign law, rule or regulation, no
representation is made herein with respect to any of
the same applicable solely to the Subscriber and
Comergent Capital Ltd. and not to the Company. The
business of the Company and its subsidiaries is not
being conducted in violation of any law, ordinance
or regulation of any governmental entity. The
Company is not required under federal, state or
local law, rule or regulation in the United States
to obtain any consent, authorization or order of, or
make any filing or registration with, any court or
governmental agency in order for it to execute,
deliver or perform any of its obligations under this
Subscription Agreement, the Warrants, or issue and
sell the common stock in accordance with the terms
hereof and thereof (other than any SEC, NYSE, NASD
or state securities filings which may be required to
be made by the Company subsequent to the date
hereof, which the Company hereby undertakes to make,
and any registration statement which may be filed
pursuant hereto); provided that, for purposes of the
representation made in this sentence, the Company is
assuming and relying upon the accuracy of the
relevant representations and agreements of the
Subscriber and Comergent Capital Ltd. herein.
(l) The Company has delivered or made available to the
Subscriber and Comergent Capital Ltd. true and
complete copies of the Exchange Act Reports. The
Company has not provided to the Subscriber or
Comergent Capital Ltd. any information which,
according to applicable law, rule or regulation,
should
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Subscription Agreement
January 29, 2001
Page 5
have been disclosed publicly by the Company but
which has not been so disclosed. As of their
respective dates, the Exchange Act Reports complied
(and as of its effective date, the Registration
Statement will comply) in all material respects with
the requirements of the Exchange Act (or in the case
of such Registration Statement, the Securities Act)
and the rules and regulations of the SEC promulgated
thereunder and other applicable federal, state and
local laws, rules and regulations, and none of the
Exchange Act Reports contained (and, as of its
effective date, such Registration Statement will not
contain) any untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading. The
financial statements of the Company included (or to
be included) in the Exchange Act Reports and the
Registration Statement comply as to form in all
material respects with applicable accounting
requirements and the published rules and regulations
of the SEC or other applicable rules and regulations
with respect thereto. Such financial statements have
been (or will be) prepared in accordance with
generally accepted accounting principles applied on
a consistent basis during the periods involved
(except (i) as may be otherwise indicated in such
financial statements or the notes thereto or (ii) in
the case of unaudited interim statements, to the
extent they may not include footnotes or may be
condensed or summary statements) and fairly present
(or will fairly present) the consolidated financial
position of the Company as of the dates thereof and
the consolidated results of operations and cash
flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end
audit adjustments).
(m) No Material Adverse Effect has occurred or exists
which has not been disclosed in the Exchange Act
Reports or otherwise disclosed in writing to
Subscriber and Comergent Capital Ltd. prior to their
execution of this Subscription Agreement.
(n) No event of default has occurred and is continuing
(or event which with lapse of time or notice or both
would constitute such an event) under any of the
revolving credit facilities or other financing
arrangements of the Company or its subsidiaries.
(o) The Company and its subsidiaries have no liabilities
or obligations not disclosed in the Exchange Act
Reports which, individually or in the aggregate,
would have a Material Adverse Effect. No event or
circumstance has occurred or exists with respect to
the Company or its subsidiaries or their respective
business, properties, prospects, operations or
financial condition, which, under applicable law,
rule or regulation, requires public disclosure or
announcement by the Company but which has not been
so publicly announced or disclosed.
(p) Neither the Company nor any of its subsidiaries is a
party to or the subject of any litigation,
arbitration or other proceeding which if adversely
determined would singly or in the aggregate have a
Material Adverse Effect.
(q) The Company will not, by amendment of its
Certificate of Incorporation or through any
reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of
this Subscription Agreement or the Warrants (and the
Series C Warrant), but will at all times in good
faith assist in the carrying out of all such terms
and in the taking of all such action as may be
necessary or appropriate in order to protect the
rights of the holders of such warrants against
impairment. Without limiting the generality of the
foregoing, the Company (a) will not increase the par
value of any shares of its common stock above the
amount payable therefor on such warrant exercises,
and (b) will take all such action as may be
reasonably necessary or appropriate in order that
the Company may validly and legally issue fully paid
and nonassessable Shares on the exercise of the
Warrants (and the Series C Warrant).
(r) The Company will deliver to Subscriber and Comergent
Capital Ltd. upon exercise in whole or part of the
Warrants (and the Series C Warrant), shares of
common stock of the Company which, at all times
after the effectiveness of the Registration
Statement, shall be without restrictive legend,
"stop transfers", "stock transfer restrictions" or
other restrictions on their transfer or sale.
(s) The Company will take all steps necessary to
preserve and continue its corporate existence.
(t) With a view to making available to the Subscriber
and Comergent Capital Ltd. the benefits of Rule 144
promulgated under the Securities Act and any other
rule or regulation of the SEC that may at any time
permit the Subscriber and Comergent Capital Ltd. to
sell securities of the Company to the public without
registration, the Company agrees to use its
reasonable best efforts to:
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Subscription Agreement
January 29, 2001
Page 6
(A) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
(a) file with the SEC in a timely manner all reports and
other documents required of the Company under the
Securities Act and the Exchange Act; and
(b) furnish to Subscriber and Comergent Capital Ltd.
forthwith upon request a written statement by the
Company that it has complied with the reporting
requirements of Rule 144 and of the Act and the
Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other
reports and documents so filed by the Company as may
be reasonably requested to permit any such Warrant
Holder to take advantage of any rule or regulation
of the SEC permitting the selling of any such
securities without registration.
(B) The obligation, but not the right, of the Subscriber to exercise the
Series A Warrant is subject to the satisfaction, on the date of the Company's
acceptance of this Subscription Agreement and on each of the date that a Put
Notice (as defined in the Series A Warrant) is given by the Company, and during
each Quarter (as defined in the Series A Warrant) (the foregoing periods
hereinafter referred to as a "Measurement Date"), of each of the following
conditions, each of which is for the Subscriber's sole benefit and may be
waived by the Subscriber at any time in its sole discretion.
(a) Accuracy of the Company's Representations and
Warranties. The representations and warranties of
the Company contained in this Subscription Agreement
and the Warrants shall be true and correct in all
material respects as of each Measurement Date.
(b) Performance by the Company. The Company shall have
performed, satisfied and complied in all material
respects all covenants, agreements and conditions
required by this Subscription Agreement and the
Warrants to be performed, satisfied or complied with
by the Company.
(c) No Injunction. No statute, rule, regulation,
executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent
jurisdiction which prohibits or
c) adversely affects any of the transactions
contemplated by this Subscription Agreement and the
Warrants, and no proceeding shall have been
commenced which may have the effect of prohibiting
or adversely affecting any of the transactions
contemplated hereby or thereby.
(d) Adverse Changes. From the date hereof through each
Measurement Date, no event shall have occurred or be
threatened to occur which has had or is likely to
have a Material Adverse Effect.
(e) No Suspension of Trading in or Delisting of Common
Stock. The trading in the Common Stock shall not
have been suspended by the SEC, or the National
Association of Securities Dealers, Inc. (the
"NASD"); the common stock of the Company shall not
have been delisted from the Nasdaq Over-the-Counter
Market; and trading in securities generally shall
not have been suspended or limited or minimum prices
shall not have been established on securities whose
trades are reported. The SEC has not issued any stop
order or other order suspending the effectiveness of
any registration involving the Company or its
subsidiaries. Subscriber's obligation, but not
Subscriber's right, to exercise the Series A Warrant
shall also be suspended so long as the Registration
Statement is not effective with the Securities and
Exchange Commission.
(f) Legal Opinion. The Company shall have delivered to
the Subscriber an opinion of independent counsel to
the Company, in form and substance reasonably
satisfactory to the Subscriber.
(g) Officer's Certificate. The Company shall have
delivered to the Subscriber a certificate, in form
and substance reasonably satisfactory to the
Subscriber, executed by an executive officer of the
Company, to the effect that all the conditions to
the Subscriber's obligations hereunder shall have
been satisfied.
D. Miscellaneous
8. This Subscription Agreement constitutes the entire
understanding of the parties with regard to the subject matter, supersedes all
written and oral agreements with respect to the same and may not be waived,
modified, changed, discharged, terminated, revoked or canceled except by a
writing signed by the party against which enforcement thereof is sought.
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Subscription Agreement
January 29, 2001
Page 7
9. Upon the Company's acceptance of this subscription, the
Company shall pay Subscriber $10,000 for costs associated with Subscriber's
initial due diligence investigation. Upon the first receipt of funds by the
Company under the exercise of any Warrants, the Company shall pay Subscriber's
counsel, Xxxxxxx Xxxxxx Xxxxxxxxx & Kakoyiannis $10,000 in connection with
their work through the closing date relating to this transaction. The Company
shall also reimburse Subscriber and Comergent Capital Ltd. for (A) all
reasonable attorneys fees incurred by the Subscriber and Comergent Capital Ltd.
in the future in connection with this Subscription Agreement, the Warrants, the
Series C Warrants, or the transactions contemplated hereby and thereby, and (B)
all other expenses and costs of ongoing due-diligence investigations by
Subscriber and Comergent Capital Ltd. The expense reimbursement specified in
Paragraph 9(B) shall be limited to $10,000.
10. Each party shall indemnify the other against any loss, cost
or damages (including reasonable attorney's fees and expenses) incurred as a
result of such parties' breach of any representation, warranty, or covenant
contained in this Subscription Agreement.
11. This Subscription Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York affecting
contracts made in and to be performed in such State without giving effect to
principles governing choice of laws, irrespective of the domicile of any party
or the place of execution of this Subscription Agreement by any party or the
location for performance of any of the terms hereof, and the parties hereto
shall be subject to the exclusive jurisdiction of the state and federal courts
located in Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxxxxx Xxxxxx of America. Facsimile
signatures to this Subscription Agreement or on any notice given hereunder or
under the Warrants shall be binding on all parties hereto.
12. This Subscription Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
13. The Subscriber and Comergent Capital Ltd. hereby certifies
that Subscriber and Comergent Capital Ltd. has read and understands this
Subscription Agreement, that the representations and warranties made by the
Subscriber and Comergent Capital Ltd. in this Subscription Agreement are
accurate on the date hereof, that Subscriber and Comergent Capital Ltd. each
recognizes that the Company is relying on such representations and warranties
and covenants and that they shall remain in effect through the closing of the
sale of the Warrants to Subscriber hereunder unless Subscriber or Comergent
Capital Ltd. notifies the Company otherwise.
14. Subscriber may, by providing written notice to the Company,
terminate its obligation to exercise the Series A Warrants, if the Company has
failed to deliver at any time on a timely basis any stock required under this
Subscription Agreement or the Warrants or the Series C Warrants, the
Registration Statement has not been declared effective within 120 days of the
Company's acceptance of this Subscription Agreement, or if the closing bid
price per share of the Company's common is below $0.25 for any twenty
consecutive trading days, or the trading volume in the Company's common stock
is below 25,000 shares per day for any twenty consecutive trading days.
15. All notices required or permitted to be given by either the
Company or the Subscriber or Comergent Capital Ltd. pursuant to the terms of
this Subscription Agreement or the Warrants shall be in writing and shall be
deemed given when delivered personally or by facsimile, or by overnight or two
day courier addressed to the parties at the last known address of the party or
such other address as a party may request by notifying the other in writing.
16. The representations, warranties, covenants, indemnities, and
agreements of the parties contained herein shall survive any termination or
expiration of this Subscription Agreement.
IN WITNESS WHEREOF, the Subscriber and Comergent Capital Ltd. has each executed
this Subscription Agreement this 29th day of January, 2001.
AILOUROS LTD., an Antigua and Barbuda corporation
By:
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Xxxxxxx Xxxx, Managing Director
COMERGENT CAPITAL
By:
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Name:
Title:
Accepted and Agreed To:
AFFINITY INTERNATIONAL TRAVEL SYSTEMS, INC.
By:
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Xxxxxx X. Xxxxxxxx, Xx., President
Date of Acceptance: January __, 2001
