PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated March 10, 2000, by and between ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇") and THE ADVENT FUND LLC ("Purchaser").
WHEREAS, Purchaser desires to purchase concurrently with the execution
of this Agreement certain shares of the common stock ("Common Stock") of
▇▇▇▇▇▇.▇▇▇ Inc. ("Company") owned by ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ desires to sell to
Purchaser such shares.
IT IS AGREED:
1. Stock Purchase. Purchaser hereby purchases from ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ hereby sells to Purchaser 151,469 shares of the Common Stock owned by
▇▇▇▇▇▇▇▇▇ ("Purchased Shares") at a price of $3.301 per share. Accordingly,
concurrently with the execution of this Agreement, Purchaser is wiring to an
account designated by ▇▇▇▇▇▇▇▇▇ the sum of $499,999.17 in immediately available
funds in consideration for the Purchased Shares, and ▇▇▇▇▇▇▇▇▇ is causing the
Purchased Shares to be transferred into the names directed by Purchaser and
certificates representing such shares to be delivered to Purchaser.
2. ▇▇▇▇▇▇▇▇▇'▇ Representations. ▇▇▇▇▇▇▇▇▇ represents and warrants
to Purchaser that:
(i) he owns the Purchased Shares free of any lien,
restriction or encumbrance of any kind, and he has owned all of the
Purchased Shares since December 31, 1997;
(ii) the sale by him of the Purchased Shares is exempt from
the registration requirements of the Securities Act of 1933, as
amended ("1933 Act");
(iii) he has not granted anyone an option, warrant,
subscription or other right with respect to the Purchased Shares or
any right to vote the Purchased Shares;
(iv) his execution, delivery and performance of this
Agreement does not and will not conflict with or violate any law,
statute, ordinance, rule, regulation, order, judgment or decree
applicable to him, result in any breach of or constitute a default (or
an event which with notice or lapse of time or both would become a
default) under, any note, bond, mortgage, indenture, contract,
agreement or other instrument or obligation to which he is a party or
by which he is bound.
(v) he has received a copy of all reports and documents
filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended, within
the last 24 months and all reports issued by the Company to its
stockholders; and
(vi) he has had both the opportunity to ask questions and
receive answers from the officers and directors of the Company and
persons acting on its behalf concerning the Company's operations and
to obtain any additional information he requested.
3. Purchaser's Representations. Purchaser represents and warrants to
▇▇▇▇▇▇▇▇▇ that:
(i) he understands that he must bear the economic risk of
the investment in the Purchased Shares, which cannot be sold by him
unless they are registered under the 1933 Act or an exemption
therefrom is available thereunder; and
(ii) he is aware that the Company shall place stop transfer
orders with its transfer agent against the transfer of the Purchased
Shares in the absence of registration under the 1933 Act or an
exemption therefrom as provided herein;
(iii) he understands that the certificates evidencing the
Purchased Shares shall bear the following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
under the securities laws of any State. The shares may not
be sold, transferred or otherwise disposed of in the absence
of such registration or an exemption therefrom under said
Act."
(iv) he has received a copy of all reports and documents
filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended, within
the last 24 months and all reports issued by the Company to its
stockholders, and is aware of the risks involved with his investment;
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(v) he has had both the opportunity to ask questions and
receive answers from the officers and directors of the Company and
persons acting on its behalf concerning the Company's operations and
to obtain any additional information he requested; and
(vi) his execution, delivery and performance of this
Agreement does not and will not conflict with or violate any law,
statute, ordinance, rule, regulation, order, judgment or decree
applicable to him, result in any breach of or constitute a default (or
an event which with notice or lapse of time or both would become a
default) under, any note, bond, mortgage, indenture, contract,
agreement or other instrument or obligation to which he is a party or
by which he is bound.
4. Miscellaneous.
4.1 Notices. All notices, requests, deliveries, payments,
demands and other communications which are required or permitted to be given
under this Agreement shall be deemed given if given in writing, by hand, or
delivered by nationally recognized overnight courier, or by telecopier and
confirmed by mail (registered or certified mail, postage prepaid, return receipt
requested) at their respective addresses set forth herein, or to such other
address as either shall have specified by notice in writing to the other.
4.2 Survival of Representations. The representations and
warranties made by the parties shall survive the delivery of the Purchased
Shares.
4.3 Waiver. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach.
4.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof. This
Agreement may not be amended except by writing executed by ▇▇▇▇▇▇▇▇▇ and
Purchaser.
4.5 Binding Effect; Successors. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and, to the extent not
prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer any rights, remedies, obligations or liabilities on any person other than
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the parties hereto and as provided above, their respective heirs, successors,
assigns and representatives.
4.6 Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(without regard to choice of law provisions). Each party (i) agrees that any
legal suit, action or proceeding arising out of or relating to this Agreement
shall be instituted exclusively in New York State Supreme Court, County of New
York, or in the United States District Court for the Southern District of New
York, (ii) waives any objection to the venue of any such suit, action or
proceeding and the right to assert that such forum is not a convenient forum,
and (iii) irrevocably consents to the jurisdiction of the New York State Supreme
Court, County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding. Each party further
agrees to accept and acknowledge service of any and all process which may be
served in any such suit, action or proceeding in the New York State Supreme
Court, County of New York, or in the United States District Court for the
Southern District of New York and agrees that service of process upon him mailed
by registered mail to his address shall be deemed in every respect effective
service of process upon him in any such suit, action or proceeding.
4.7 Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each of the
parties hereto waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
4.8 Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
4.9 Severability. The invalidity or unenforceability of any term
or provision of this Agreement in any situation or jurisdiction shall not affect
the validity or enforceability of the other terms or provisions hereof or the
validity or enforceability of the offending term or provision in any other
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situation or in any other jurisdiction and the remaining terms and provisions
shall remain in full force and effect, unless doing so would result in an
interpretation of this Agreement which is manifestly unjust.
4.10 Fees and Expenses. All costs and expenses (including,
without limitation, legal and financial advisory fees and expenses) incurred in
connection with, or in anticipation of, this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
4.11 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original instrument and
all of which together shall constitute a single agreement.
4.12 Chrust Agreement. This Agreement is being executed and
delivered simultaneously with the Purchase and Option Agreement, dated March 10,
2000, between ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, pursuant to which Chrust is
purchasing 302,939 shares of Common Stock of the Company from ▇▇▇▇▇▇▇▇▇ for
$1,000,001.64.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement on
the day and year first above:
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇--▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
PURCHASER: Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇--▇▇▇▇▇ 2500
THE ADVENT FUND LLC ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇
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By: ▇▇▇ ▇▇▇▇, Manager