EXHIBIT 10.17
ASSET EXCHANGE, INC.
SERIES A PREFERRED
STOCK PURCHASE AGREEMENT
September 10, 1999
ASSET EXCHANGE, INC.
SERIES A PREFERRED STOCK
PURCHASE AGREEMENT
This SERIES A PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement") is made
as of the 10th day of September, 1999 by and among ASSET EXCHANGE, INC., a
Delaware corporation (the "Company"), and the Investors listed on Exhibit A
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hereto (each of whom individually is referred to herein as an "Investor" and
collectively referred to as the "Investors").
THE PARTIES HERETO AGREE AS FOLLOWS:
1 Authorization of Preferred Stock; Purchase and Sale of Preferred Stock.
1.1 Authorization of Preferred Stock. The Company has authorized the
issue and sale of up to 290,323 shares of Series A Preferred Stock, $0.0001 par
value (the "Preferred Stock"), to be issued under this Agreement. The rights,
privileges, and preferences of the Series A Preferred Stock are as set forth in
the Restated Certificate of Incorporation (the "Certificate") in the form
attached to this Agreement as Exhibit B.
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1.2 Purchase and Sale of the Preferred Stock. Subject to the terms and
conditions of this Agreement and on the basis of the representations and
warranties set forth herein, the Company agrees to sell to the Investors and
each such Investor, severally and not jointly, agrees to purchase from the
Company the number of shares of Preferred Stock (collectively, the "Shares") set
forth opposite such Investor's name on Exhibit A hereto for a purchase price of
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$1.55 per share of Preferred Stock.
1.3 The Closing. The purchase and sale of the Shares will take place at
the closing (the "Closing") at such place as the parties shall mutually agree.
The Closing shall take place concurrently with the execution and delivery of
this Agreement or at such other time as the parties shall mutually agree. At the
Closing, the Company will deliver to each of the Investors purchasing Shares
certificates, registered in such Investor's name, representing the number of
shares of Preferred Stock to be acquired by such Investor pursuant to this
Agreement against payment of the purchase price thereof in lawful money of the
United States of America by wire transfer or check payable to the Company.
2 Representations and Warranties.
In order to induce the Investors to enter into this Agreement and to
purchase the Shares hereunder, the Company hereby represents and warrants to
each Investor:
2.1 Organization and Corporate Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company is qualified to do business as a foreign corporation in
the State of Oregon. The Company is not qualified to do business as a foreign
corporation in any other jurisdiction and the failure to so qualify does not
have a material adverse effect on the Company's business, condition or results
of operations. The Company has all required corporate power and authority to
own its property, to carry on its business as presently conducted or
contemplated to be conducted and to carry out the transactions contemplated
hereby. The copies of the Certificate of Incorporation and By-laws of the
Company, as amended to date, which have been furnished to the Investors by the
Company, are true, correct and complete and have not been amended or modified
further.
2.2 Authorization. This Agreement and the Investor Rights Agreement, in
the form attached hereto as Exhibit C (the "Investor Rights Agreement")
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(together, the "Transaction Documents") have been duly executed and delivered by
the Company and are the legal, valid and binding obligations of the Company,
enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization and moratorium laws and other laws of
general application affecting enforcement of creditors' rights generally. The
execution, delivery and performance of each of the Transaction Documents have
been duly authorized by all necessary corporate action of the Company.
2.3 Capitalization. The entire authorized capital stock of the Company
consists of 10,000,000 shares of Common Stock, $0.0001 par value per share, of
which 1,000,000 shares are issued and outstanding and 4,000,000 shares of
Preferred Stock, $0.0001 par value per share, of which 400,000 shares have been
designated Series A Preferred Stock (none of which are issued and outstanding).
All outstanding capital stock is duly authorized, validly issued and fully paid
and non-assessable. The Company has authorized the issuance of 290,323 shares
of Series A Preferred Stock for issuance to the Investors pursuant to this
Agreement. When issued in accordance with the terms of this Agreement, the
Shares will be duly authorized, validly issued and outstanding, fully paid and
nonassessable. There are no outstanding options, subscriptions or warrants, or
other agreements or rights to purchase or acquire from the Company, or
exchangeable for or convertible into, any shares of Common Stock or Preferred
Stock.
2.4 Subsidiaries. The Company has no subsidiaries and has no investments
in any other corporation, association or business organization.
2.5 Financial Statements. The Company has delivered to the Investors its
unaudited balance sheet for the period ending June 29, 1999 (the "Financial
Statements") a copy of which is attached hereto as Exhibit D. The Financial
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Statements present fairly in all material respects the financial position of the
Company for the periods then ended, subject to normally recurring year-end
adjustments. There has been no material adverse change in the assets of the
Company, its financial condition or its business prospects since the date of the
Financial Statements.
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2.6 No Defaults. The Company is not in default (a) under its charter
documents or its by-laws or any note, indenture, mortgage, lease, agreement,
contract, purchase order or other instrument, document or agreement to which it
is a party or (b) with respect to any order, writ, injunction or decree of any
court or any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, that
specifically names the Company. To the best knowledge of the Company, there
exists no condition, event or act which after notice, lapse of time, or both,
would constitute a default by the Company under any of the foregoing. To the
best of the Company's knowledge, no third party is in default under any
agreement, contract or other instrument, document or agreement to which the
Company is a party, which default would or could have a material adverse effect
on the Company's properties or assets or the business of the Company as
presently conducted or proposed to be conducted.
2.7 Intellectual Property. To the best of the Company's knowledge, the
Company owns a valid right, title, interest, or license in and to the
intellectual property necessary for the operation of its business, which
includes, but is not limited to, all patents, copyrights, common law copyrights,
trade name, trademark, service ▇▇▇▇, trade secret, technology, know-how or
process, or any other intangible property rights of the Company ("Intellectual
Property"). There are no claims pending or, to the best knowledge of the
Company, threatened against the Company regarding any claim or infringement of
any Intellectual Property belonging to any other person, firm or corporation and
the Company has not received any written notice or other indication of any claim
of any such infringement. To the best of the Company's knowledge, the Company
owns, or holds valid licenses or other rights to use, all of the Intellectual
Property, and any other intellectual or intangible property right, used in or
necessary for the operation of the business.
2.8 Licenses and Permits. Except as set forth in Schedule 3.1.4, the
Company possesses all material licenses and permits necessary for the present
conduct of its business. Each of such licenses and permits is in full force and
effect, and there are no pending or, to the knowledge of the Company, threatened
claims or proceedings challenging the validity of, or seeking to revoke or
discontinue, any of the license or permits of the Company.
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2.9 Taxes. The Company has (a) timely filed all federal, state, local and
foreign franchise, income, sales, gross receipts and all other tax returns and
statements which are required to be filed by it and which were due prior to the
date hereof ("Tax Returns and Statements""), and (b) paid within the time and in
the manner prescribed by law or established reasonable reserves as reflected on
the Financial Statements for the payment of all taxes, levies, assessments,
fees, penalties, interest and other governmental charges accrued or payable for
all periods ending on or prior to the date hereof. The Tax Returns and
Statements are complete and accurate in all material respects, and no tax
assessment or deficiency which has not been paid or for which an adequate
reserve has not been set aside, has been made or proposed against the Company,
nor are any of the Tax Returns and Statements now being examined or audited nor,
to the knowledge of the Company, is there a threat that any of the Tax Returns
and Statements will be examined or audited, and no consents waiving or extending
any applicable statues of limitations for the Tax Returns and Statements, or any
taxes required to be paid thereunder, have been filed.
2.10 Compliance with Laws. The business of the Company has been conducted
in material compliance with all applicable laws, statutes, ordinances, rules,
regulations, order and other requirements of all national governmental
authorities, and of all territories, states, municipalities and other political
subdivisions and agencies thereof, having jurisdiction over it, except for
violations that individually, or in the aggregate, will have not material
adverse effect on the business, operations or financial condition of the
Company.
2.11 Offering. The offer, sale and issuance of the Shares of the Preferred
Stock as contemplated by this Agreement are exempt from the registration
requirements of the Securities Act of 1933, as amended (the "1933 Act"), and
applicable state securities laws, and neither the Company nor any authorized
agent acting on its behalf has taken or will take any action thereafter that
would cause the loss of such exemption.
2.12 Reservation of Shares. The shares of common stock issuable on
conversion of the shares of Preferred Stock have been duly and validly reserved
for issuance and, upon conversion of the shares of Preferred Stock into shares
of common stock, will be duly and validly issued, fully paid and nonassessable
and will be free of restrictions on transfer other than restrictions on transfer
under applicable federal and state securities laws.
2.13 Employment Benefit Plans. The Company does not sponsor or maintain,
directly or indirectly, any Employee Plan, as defined herein. "Employee Plan"
means any employee benefit plan as defined in Section 3(3) of ERISA and shall
mean all plans, programs, arrangements and methods of contribution or
compensation sponsored by the Company or in which the Company's employees
participate, including, without limitation, pension, retirement or severance
plans, disability, medical, dental or other health insurance plans, life
insurance or other death benefit plans and profit-sharing deferred compensation,
stock option, bonus or other incentive plans.
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2.14 Litigation. There is no claim, action, lawsuit, proceeding,
complaint, charge or investigation pending or, to the best knowledge of the
Company, threatened against the Company which questions the validity of any of
the Transaction Documents or the right of the Company to enter into them or to
consummate the transactions contemplated hereby or thereby, or which might
result, either individually or in the aggregate, in any material adverse change
in the business, assets, conditions, operations, affairs, or prospects of the
Company, financial or otherwise, or any change in the current equity ownership
of the Company, nor is the Company aware that there is any basis for the
foregoing.
2.15 Title to and Adequacy of Assets and Properties. All facilities,
equipment and other material items of tangible assets and properties owned by
the Company are in good operating condition and repair, subject to normal wear
and maintenance, are usable in the regular and ordinary course of business and,
to the best of the knowledge of the Company, comply in all material respects
with all applicable laws, regulations and licenses which govern the use and
operation thereof. The Company has good, complete and marketable title to all of
its assets and properties, free and clear of all mortgages, security interests,
liens, options, pledges, equities, claims, charges, restrictions, conditions,
conditional sale contracts and any other encumbrance or adverse interests of any
kind or nature whatsoever (collectively, the "Liens and Encumbrances"). All of
the respective assets and properties are in the exclusive possession and control
of the Company and the Company has the unencumbered right to use all of its
assets and properties without interference from and free of the rights and
claims of others.
3 Representations and Warranties and other Agreements of the Investors.
3.1 Representations and Warranties. Each Investor severally and not
jointly hereby represents and warrants that as to itself only:
3.1.1 Authorization. Such Investor has full power and authority to
execute, deliver and perform this Agreement and the Investor Rights Agreement
and to acquire the Shares. This Agreement and the Investor Rights Agreement
constitute the valid and legally binding obligation of such Investor,
enforceable against such Investor in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization and moratorium laws
and other laws of general application affecting enforcement of creditors' rights
generally.
3.1.2 Purchase Entirely for Our Own Account. That the Shares to be
purchased by such Investor and the Common Stock issuable upon conversion of the
Preferred Stock (collectively, the "Securities") will be acquired for investment
for such Investor's own account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and that such Investor has no
present intention of selling, granting any participation in or otherwise
distributing the same. Such Investor does not have any contract, undertaking,
agreement or arrangement with any person or entity to sell, transfer or grant
participations to such person or to any third party with respect to any of the
Securities.
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3.1.3 Reliance Upon Investor's Representations. Such Investor
understands that the Securities have not been registered under the Securities
Act of 1933, as amended (the "Securities Act") on the ground that the sale
provided for in this Agreement and the issuance of securities hereunder is
exempt from registration under the Securities Act pursuant to Section 4(2)
thereof, and that the Company's reliance on such exemption is predicated on the
Investors' representations set forth herein. Such Investor realizes that the
basis for the exemption may not be present if, notwithstanding such
representations, the Investor has in mind merely acquiring shares of the
Securities for a fixed or determinable period in the future, or for a market
rise, or for sale if the market does not rise. Such Investor has no such
intention.
3.1.4 Risks and Special Considerations. SUCH INVESTOR UNDERSTANDS THE
RISKS AND SPECIAL CONSIDERATIONS RELATING TO AN INVESTMENT IN THE COMPANY,
INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN SCHEDULE 3.1.4 HERETO.
3.1.5 Investment Experience. Such Investor is experienced in
evaluating and investing in private placement transactions of securities of
companies in a similar stage of development and acknowledges that such Investor
is able to fend for itself, can bear the economic risk of such Investor's
investment and has such knowledge and experience in financial and business
matters that such Investor is capable of evaluating the merits and risks of the
investment in the Securities. If other than an individual, such Investor has not
been organized for the purpose of acquiring the securities.
3.1.6 Accredited Investor. Such Investor is an "accredited investor"
as defined in Rule 501 promulgated under the Securities Act. The term
"accredited investor" as used herein refers to:
(i) A person or entity who is a director or executive officer of the
Company;
(ii) Any bank as defined in Section 3(a)(2) of the Securities Act, or
any savings and loan association or other institution as defined
in Section 3(a)(5)(A) of the Securities Act whether acting in its
individual or fiduciary capacity; any broker or dealer registered
pursuant to Section 15 of the Securities Exchange Act of 1934;
any insurance company as defined in Section 2(13) of the
Securities Act; any investment company registered under the
Investment Company Act of 1940 or a business development company
as defined in Section 2(a)(48) of that Act; any Small Business
Investment Company licensed by the US Small Business
Administration under Section 301(c) or (d) of the Small business
Investment Act of 1958; any plan established and maintained by a
state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the
benefit of its employees, if such plan has total assets in excess
of $5,000,000; any employee benefit plan within the meaning of
Title I of the Employment Retirement Income Security Act of 1974,
if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of such Act, which is either a bank,
savings and loan association, insurance
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company, or registered investment advisor, or if the employee
benefit plan has total assets in excess of $5,000,000 or, if a
self-directed plan, with investment decisions made solely by
persons that are accredited investors;
(iii) Any private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940;
(iv) Any organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business
trust, or partnership, not formed for the specific purpose of
acquiring the securities offered, with total assets in excess
of $5,000,000;
(v) Any natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of the purchase
exceeds $1,000,000;
(vi) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income
with that person's spouse in excess of $300,000 in each of
those years and has a reasonable expectation of reaching the
same income level in the current year;
(vii) Any trust with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the securities offered,
whose purchase is directed by a person who has such knowledge
and experience in financial and business matters that he or she
is capable of evaluating the merits and risks of the
prospective investment; or
(viii) Any entity in which all of the equity owners are accredited
investors.
As used in this paragraph, the term "net worth" means the excess of total
assets over total liabilities. For the purpose of determining a person's net
worth, the principal residence owned by an individual should be valued at fair
market, value, including the cost of improvements, net of current encumbrances.
As used in this paragraph, "income" means actual economic income, which may
different from adjusted gross income for income tax purposes. Accordingly, each
Investor should consider whether such Investor should add any or all of the
following items to such Investor's adjusted gross income for income tax purposes
in order to reflect more accurately such Investor's actual economic income: any
amounts attributable to tax-exempt income received, losses claimed as a limited
partner in any limited partnership, deductions claimed for depletion,
contributions to an ▇▇▇ or ▇▇▇▇▇ retirement plan, and alimony payments.
3.2 Restricted Securities. Such Investor understands that the Securities
may not be sold, transferred or otherwise disposed of without registration under
the Securities Act or an exemption therefrom, and that in the absence of an
effective registration statement covering the Securities or an available
exemption from registration under the Securities Act, the Securities must be
held indefinitely. In particular, such Investor is aware that the Securities may
not be sold pursuant to Rule 144 promulgated under the Securities Act unless all
of the conditions of
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that rule are met. Among the conditions for use of Rule 144 may be the
availability of current information to the public about the Company. Such
information is not now available and the Company has no present plans to make
such information available.
4 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 such
Investor, and such Investor agrees to indemnify and hold the Company and the
other Investors harmless against any damages incurred as a result of any such
claims.
5 Further Limitations on Disposition.
5.1 Each Investor further agrees not to make any disposition of all or any
portion of the Shares unless and until:
(i) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration
statement and all applicable state securities laws; or
(ii) Such Investor 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
(B) such Investor shall have furnished the Company with an
opinion from counsel, reasonably satisfactory to the Company,
that such disposition will not require registration of such
shares under the Securities Act and that all requisite action has
been or will be, on a timely basis, taken under any applicable
state securities laws in connection with such disposition.
5.2 Notwithstanding the provisions of paragraphs (i) and (ii) above, no
such registration statement or opinion of counsel shall be necessary for a
transfer without additional consideration by any Investor: (i) if such Investor
is a natural person, by gift or bequest or through inheritance to any of such
Investor's spouse, father, mother, brothers, sisters and lineal descendants and
ancestors (collectively, the "Investor's Immediate Family"), (ii) to a trust for
the benefit of any member or members of such Investor's Immediate Family or
(iii) to a trust in respect of which such Investor serves as trustee (provided,
however, that the trust instrument governing such trust shall provide that such
Investor, as trustee, shall retain sole and exclusive control over the voting
and disposition of such Shares until the termination of the Investor Rights
Agreement), if 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.
6 Legends. It is understood that the certificates evidencing the Shares may
bear substantially the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED
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FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144
OR RULE 144A OF SUCH ACT."
(b) Any legend required by the Investor Rights Agreement or the laws
of any other applicable jurisdiction.
7 Conditions to the Investors' Obligations at each Closing.i
The obligations of the Investors under Section 1 of this Agreement to
purchase the Shares at the Closing are subject to the fulfillment on or before
the Closing of each of the following conditions unless waived by the Investors:
7.1 Representations and Warranties. The representations and warranties of
the Company contained in Section 2 shall be true and correct.
7.2 Performance. The Company shall have performed and complied with all
agreements, obligations, and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
7.3 Restatement of Certificate of Incorporation. The Company shall have
filed with the Secretary of the State of Delaware the Certificate of
Incorporation which is attached hereto as Exhibit B.
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7.4 Qualifications. All authorizations, approvals, or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares to the Investors pursuant to this Agreement shall have been duly obtained
and shall be effective on and as of the Closing other than those which are not
required to be obtained before the Closing.
7.5 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Investors and the Investors' counsel, and they shall have received all such
counterpart original and certified or other copies of such documents as they may
reasonably request.
7.6 Other Agreements. The Investor Rights Agreement substantially in the
form of Exhibit C attached hereto shall have been executed and delivered by the
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parties thereto (other than the Investors).
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7.7 Board of Directors. Immediately upon the Closing, the Company shall
have a four-member board of directors consisting of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (as the
representative of the holders of the Series A Preferred Stock), and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (as the representatives of the
holders of the Common Stock).
7.8 Minimum Proceeds. Investors shall have tendered at the Closing
aggregate consideration of not less than $450,000 for the purchase of the Series
A Preferred Stock offered hereby.
8 Conditions of the Company's Obligations at the Closing.i
The obligations of the Company under Section 1 of this Agreement are
subject to the fulfillment on or before the Closing of each of the following
conditions unless waived by the Company:
8.1 Representations and Warranties. The representations and warranties of
the Investors contained in Section 3 shall be true and correct on and as of the
date of the Closing with the same effect as though such representations and
warranties had been made on and as of the date of the Closing.
8.2 Payment of Purchase Price. The Investors shall have delivered payment
of the aggregate purchase price of the Shares to be purchased by them at the
Closing as set forth in Section 1.3.
8.3 Other Agreements. The Investor Rights Agreement substantially in the
form of Exhibit C attached hereto shall have been executed and delivered by the
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Investors purchasing Shares at the Closing.
9 Certain Covenants.
9.1 Indemnification by the Company. Subject to terms and conditions
described herein, the Company shall defend, indemnify and hold harmless the
Investor, its affiliates and their respective officers, directors, shareholders,
employees, agents, successors, and assigns (the "Investor Indemnified Parties"),
from and against any and all claims, demands, damages, liabilities, losses,
costs, interests, penalties and expenses (including reasonable attorneys' fees)
of any kind or nature whatsoever ("Claims and Damages") which may be asserted
against, or sustained or incurred by the Investor Indemnified Parties or any of
them, as a result of (i) any breach of or inaccuracy in any of the Company's
representations or warranties contained in this Agreement or any certificates or
other agreements delivered contemporaneously herewith by or on behalf of the
Company; and (ii) any breach or default by the Company of any of its covenants
contained in this Agreement or the other agreements executed contemporaneously
herewith by or on behalf of the Company.
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9.2 Further Cooperation and Assurances. Each of the parties hereto shall
execute and deliver any and all additional papers, documents and other
assurances, and shall do any and all acts and things reasonably necessary in
connection with the performance of their obligations hereunder and to carry out
the intent of the parties hereto. In addition, the Company agrees to provide
each Investor with such information and documents reasonably requested by such
Investor in connection with the preparation and filing of any registration
statements or periodic reports with the Securities and Exchange Commission,
including without limitation descriptions of the Company's business,
capitalization schedules, product updates and management profiles.
10 Miscellaneous.
10.1 Survival of Covenants; Assignability of Rights. All covenants,
agreements, representations and warranties of the Company made herein and in the
certificates, lists, exhibits, schedules or other written information delivered
or furnished to any Investor in connection herewith shall be deemed material and
to have been relied upon by such Investor. All representations and warranties of
the Company shall survive the delivery of the Shares, and shall bind the Company
and its successors and assigns, whether so expressed or not, for a period of two
years.
10.2 Incorporation by Reference. All exhibits and schedules appended to
this Agreement are herein incorporated by reference and made a part hereof.
10.3 Parties in Interest. All covenants, agreements, representations,
warranties and undertakings in this Agreement made by and on behalf of any of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto and to transferees of the Shares
whether so expressed or not.
10.4 Amendments and Waivers. Except as set forth in this Agreement,
changes in or additions to this Agreement may be made, or compliance with any
term, covenant, agreement, condition or provision set forth herein may be
omitted or waived (either generally or in a particular instance and either
retroactively or prospectively), or representatives to act on behalf of the
holders of all of the Shares may be designated, upon the written consent of the
Company and the holders of at least 66% of the Shares sold hereunder.
10.5 Governing Law; Jurisdiction. This Agreement shall be deemed a
contract made under the laws of the State of Oregon and, together with the
rights of obligations of the parties hereunder, shall be construed under and
governed by the laws of such State. Any action brought between the parties may
be brought only in the state or federal courts located in Oregon, and in no
other place unless the parties expressly agree in writing to waive this
requirement.
10.6 Notices. All notices, requests, consents and demands shall be in
writing and shall be personally delivered (effective upon receipt), mailed,
postage prepaid (effective three business days after dispatch), telecopied or
telegraphed (effective upon receipt of the telecopy in complete, readable form),
or sent via a reputable overnight courier service (effective the following
business day), to the Company at:
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Asset Exchange, Inc.
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Fax Number: 503/▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇ LLP
1600 Pioneer Tower
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
or to each Investor at its address set out on Exhibit A, or such other address
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as may be furnished in writing to the other parties hereto.
10.7 Entire Agreement. This Agreement and the Exhibits and Schedules
hereto together with any other agreement referred to herein (the "Additional
Agreements") constitute the entire agreement among the Company and the Investors
with respect to the subject matter hereof. This Agreement and such Additional
Agreements supersede all prior agreements between the parties with respect to
the shares purchased hereunder and the subject matter hereof.
10.8 Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision.
10.9 Counterparts. This Agreement may be executed in counterparts, all of
which together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Company and the Investors have executed this
Agreement as of the day and year first above written.
ASSET EXCHANGE, INC.
By: _____________________________
Title: ▇▇▇▇▇ ▇▇▇▇▇▇, President
INVESTOR:
Net Value Holdings, Inc.
By: ________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its:________________________________
INVESTOR:
Treeside Incorporated
By:_________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: _______________________________
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Exhibit A
Closing
# of Shares of Series A Total Purchase
Investor's Name and Address Preferred Stock Price Per Share Price
--------------------------------- ----------------------- --------------- --------------
Net Value Holdings Inc. 258,065 $ 1.55 $ 400,000.75
▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Treeside Incorporated 32,258 $ 1.55 $ 49,999.90
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------- --------------- --------------
TOTALS: 290,323 $ 1.55 $ 450,000.65
======================= =============== ==============
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