10.9
VACATION EMPORIUM CORPORATION
AMENDED AND RESTATED SUBSCRIPTION AND RIGHTS AGREEMENT
Vacation Emporium Corporation
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned, Xxxxx X. Xxxxxxx, residing at 000 Xxxxx Xxxx Xxxxx Xxxxx,
Xxx. 000, Xxxxxxx, Xxxxxxxx 00000 (the Subscriber"), entered into a Subscription
and Rights Agreement, dated July 30, 1999 (the "Subscription Agreement"), with
Vacation Emporium Corporation, a Nevada corporation (the "Company"), pursuant to
which, among other things, the Subscriber agreed to purchase certain shares of
the Company's common stock, par value $.001 per share (the "Common Stock"). The
Subscriber and the Company wish to correct certain errors contained in the
Subscription Agreement and, as so corrected, to restate in its entirety the
Subscription Agreement. Accordingly, the Subscriber and the Company hereby do
amend and restate in its entirety the Subscription Agreement as follows:
1. Subscription.
Subject to the terms and conditions of this Agreement, the
Subscriber hereby subscribes for and agrees to purchase simultaneously with the
execution hereof, 351,282 shares of Common Stock, for the aggregate purchase
price of $878.21, payable by check delivered to the Company simultaneously
herewith (the shares of Common Stock acquired by the Subscriber hereunder are
referred to herein as the "Shares"). Simultaneously with the execution hereof,
or as soon thereafter as practicable, the Company shall deliver to the
Subscriber a certificate representing 87,821 of the Shares purchased hereunder,
registered in the name of the Subscriber
on the books and records of the Company, and shall deliver to Xxxxx Xxxx LLP as
escrow agent (the "Escrow Agent") one or more certificates representing 263,461
of the Shares purchased hereunder (the "Escrow Shares"), registered in the name
of the Subscriber on the books and records of the Company, to be held in escrow
in accordance with the terms of the Escrow Agreement (as defined below).
2. Acceptance of Subscription. By its signature below, the Company
may, in its sole and absolute discretion, accept this subscription, and such
subscription shall not be binding unless and until accepted by the Company.
3. Employment Agreement. Simultaneously with the execution hereof,
the Subscriber will enter into an Employment Agreement (the "Employment
Agreement") with the Company in substantially the form annexed hereto as
Exhibit A.
4. Escrow Agreement. Simultaneously with the execution hereof, the
Company and the Subscriber will enter into an Amended and Restated Escrow
Agreement (the "Escrow Agreement") with the Escrow Agent in substantially the
form annexed hereto as Exhibit B.
5. Restrictions on Transfer of Escrow Shares. The Subscriber
covenants to the Company and agrees that, except as contemplated hereby and by
the Escrow Agreement, he will not sell, transfer, assign, gift, devise, pledge,
hypothecate, grant a security interest in, mortgage, option, donate, or
otherwise encumber (except as contemplated hereby and by the Escrow Agreement)
or dispose of, voluntarily or involuntarily, directly or indirectly, with or
without consideration (collectively, "Transfer") any of the Escrow Shares for so
long as such shares are held in escrow pursuant to the Escrow Agreement. Any
Transfer of Escrow Shares in violation of this Section 5, whether voluntary or
involuntary, shall be void and of no force and effect and shall
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transfer no right, title or interest in or to those Escrow Shares to the
purported transferee, buyer, assignee, pledgee or encumbrance holder of such
Escrow Shares.
6. Release of Escrow Shares; Right to Repurchase Escrow Shares.
(a) The parties acknowledge that, pursuant to and in accordance with
the terms of the Escrow Agreement, the Escrow Shares will be held in escrow by
the Escrow Agent and will be released from escrow from time to time in
accordance with the terms of this Section 6 and the terms and provisions of the
Escrow Agreement.
(b) On October 28, 1999, the Escrow Agent will release from escrow
and deliver to the Subscriber 87,820 Shares in accordance with the terms of the
Escrow Agreement.
(c) On April 7, 2000, the Escrow Agent will release from escrow and
deliver to the Subscriber 175,641 of the Escrow Shares in accordance with the
terms of the Escrow Agreement.
(d) If the Subscriber's employment by the Company is terminated by
the Company for Cause (as defined in the Employment Agreement), the Subscriber
agrees to sell to the Company, and the Company agrees to purchase from the
Subscriber, all of the Escrow Shares held in escrow pursuant to the Escrow
Agreement as of the date of such termination for an aggregate purchase price
equal to the aggregate purchase price paid by the Subscriber for such Escrow
Shares pursuant hereto, such purchase and sale to be completed within three (3)
business days after the date of termination.
(e) If the Subscriber's employment by the Company is terminated
during the Escrow Period by reason of the Subscriber's death or Disability (as
defined in the Employment
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Agreement) or otherwise without Cause (as defined in the Employment Agreement),
all of the Escrow Shares held in escrow pursuant to the Escrow Agreement as of
the date of such termination will be released by the Escrow Agent to the
Subscriber (or his estate or legal representative, as the case may be) in
accordance with the terms of the Escrow Agreement.
7. Representations and Warranties of the Company. The Company hereby
represents and warrants to the undersigned as follows:
(a) Organization and Qualification; Subsidiaries. The Company is a
corporation, duly incorporated, validly existing and in good standing under the
laws of the state of Nevada, with the requisite corporate power and authority to
own and use its properties and assets and to carry on its business as currently
conducted. The Company is duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction in which a failure to so qualify
would have a material adverse effect in its business.
(b) Capital Structure. As of the date hereof (and assuming the
issuance of the Shares), the authorized capital stock of Company will consist
of: (A) 5,000,000 shares of Preferred Stock, par value $.001 per share, none of
which are outstanding and (B) 50,000,000 shares of Common Stock, par value $.001
per share. Upon completion of the issuances of shares of Common Stock
contemplated by this Agreement and agreements with third parties being entered
into simultaneously herewith, a maximum of 15,702,564 shares of Common Stock
will be issued. All outstanding shares of Common Stock are validly issued, fully
paid, nonassessable. The Shares being purchased hereunder, when issued, sold and
delivered in accordance with the terms of this Agreement, will (subject to the
escrow described herein and in the Escrow Agreement) be duly and validly issued,
fully paid and nonassessable, and will be free of restrictions on transfer other
than restrictions under applicable state and federal securities laws and
restrictions imposed under this Agreement and the Escrow Agreement. Other than
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commitments in connection with issuances to third parties of up to 906,923
shares of the Company's Common Stock being made simultaneously herewith, there
are no options, warrants, calls, rights (including conversion or preemptive
rights), commitments, agreements, contracts, understandings, restrictions,
arrangements or rights of any character to which the Company is a party or by
which it may be bound obligating the Company to issue, deliver or sell, or cause
to be issued, delivered or sold, additional shares of the Company's Common Stock
or obligating the Company to grant, extend or enter into any such option,
warrant, call, right, commitment, agreement, contract, understanding,
restriction, arrangement or right to or with any person or persons whatsoever
except for options to be granted to Subscriber and to Xxxxx XxXxxxxx pursuant to
their respective employment agreements executed or to be executed with the
Company.
(c) Authority. The Company has all requisite corporate power and
authority to enter into this Agreement, and to consummate the transactions
contemplated hereby. The execution and delivery by the Company of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of the Company. This
Agreement has been duly executed and delivered by the Company and constitutes
the valid and binding obligation of the Company enforceable in accordance with
its terms.
8. Representations and Warranties of the Subscriber. The Subscriber
hereby represents and warrants to the Company as follows:
(a) Organization; Authority. He has the requisite power, authority
and capacity to enter into and to consummate the transactions contemplated
hereby and otherwise to carry out his obligations hereunder. This Agreement has
been duly executed and delivered by
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the Subscriber and constitutes his valid and binding obligation, enforceable in
accordance with its terms.
(b) Subscriber's Status. The Subscriber understands that the
securities to be purchased hereunder have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or under the
securities law of any jurisdiction, that the purchase and sale is being made in
reliance upon certain exemptions from registration and that the Company's
reliance on such exemption is predicated in part upon the accuracy of the
Subscriber's representations in this Section 8. The Subscriber confirms that he
is a resident of the jurisdiction set forth at the foot of this Agreement.
(c) Lack of Liquidity. The Subscriber hereby acknowledges and
confirms that (i) the Shares are "restricted securities" under the Securities
Act because they are being acquired from the Company in a transaction not
involving a public offering, and that, under such laws and applicable
regulations, such securities may be resold without registration under the
Securities Act only in certain limited circumstances; (ii) there is presently no
public market for the sale or resale of the Company's Equity Securities and the
Company has not made any commitment, and is under no obligation, to register any
shares of its capital stock of any class for public sale in the future; (iii) if
in fact the Company undertakes to register any shares of its Equity Securities
for public sale in the future, there can be no assurance that it will be
successful in causing such registration to occur; and (iv) as a result of the
foregoing, the Shares may be required to be held by the Subscriber indefinitely.
(d) Purchase for Investment, Speculative Investment, etc. The
undersigned represents and warrants that: (i) he is acquiring the Shares for his
own account for investment only and not with a view to, or for sale in
connection with, a distribution within the
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meaning of the Securities Act; (ii) he has no present intention of selling or
otherwise disposing of any portion of the Shares except as contemplated hereby;
(iii) he has been afforded the opportunity to request, and has received such
information regarding the Company and its present and prospective business,
assets and liabilities and the backgrounds of the principals of the Company as
he has deemed material to making the decision to acquire the Shares and has been
afforded the opportunity to ask questions of and receive answers from the
Company's senior management concerning present and prospective business
prospects of the Company; (iv) he has fully considered such information as has
been provided by the Company in valuing the Company and assessing the merits of
the transactions contemplated hereby; (v) he recognizes that an investment in
the Shares involves special, speculative and substantial risk because, among
other things, the Company has conducted no business since March 31, 1999 other
than to enter into a non-binding letter of intent with Xxxxx to effect the WSS
Acquisition (as such terms are defined in Section 6 hereof), there can be no
assurance that the Company will complete the WSS Acquisition, or any
transaction, the Company does not presently have professional management,
customers or sales, the Company does not presently have the resources to achieve
its strategic objectives (to the extent they have been identified), the Shares
are subject to significant legal restrictions upon resale and, in any case,
there may be no future market for resale of the Shares; (vi) he is able to fend
for himself in the transactions contemplated by this Agreement, and is, on his
own or through his professional advisors, knowledgeable in business and
financial matters and, accordingly, is capable of evaluating and has evaluated
the merits of the transactions contemplated hereby; (vii) he has made the
determination to enter into this Agreement based upon his own independent
evaluation and assessment of the value of the Company and its present and
prospective business prospects and has not relied on, or been induced to enter
into this
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Agreement on account of any representation or warranty of any kind or nature,
whether oral or written, express or implied, except for such representations and
warranties of the Company as are specifically set forth in this Agreement,
(viii) he is financially capable of bearing a total loss of his investment in
the Shares and (x) at no time was he presented with, or solicited by any
publicly issued or circulated newspaper, magazine, mail, radio or television or
any other form of general advertising or solicitation in connection herewith.
9. Transfer Restrictions under the Securities Laws. If (subject to
the limitations contained herein) the Subscriber should decide to dispose of any
of the Shares to be purchased hereunder, the Subscriber understands and agrees
he may do so only (i) pursuant to an effective registration statement under the
Securities Act (which the Company is under no obligation to file) or (ii)
pursuant to an available exemption from registration under the Securities Act.
In connection with any transfer of any Shares other than pursuant to an
effective registration statement, the Company may require that the Subscriber
provide to the Company an opinion of counsel reasonably satisfactory to the
Company, to the effect that such transfer does not require registration of such
Shares under the Securities Act or any state securities laws.
Each certificate representing the Shares shall bear the following
legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR ANY APPLICABLE STATE SECURITIES LAW, AND NO INTEREST THEREIN MAY
BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE
TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH
TRANSACTION INVOLVING SAID SECURITIES, (ii) THIS CORPORATION
RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF THESE
SECURITIES SATISFACTORY TO THIS CORPORATION STATING THAT SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION,
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OR (iii) THIS CORPORATION OTHERWISE SATISFIES ITSELF THAT SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION.
Each certificate representing the Escrow Shares shall bear the
following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS CONTAINED IN A
SUBSCRIPTION AND RIGHTS AGREEMENT DATED JULY 30, 1999, AND AN ESCROW
AGREEMENT DATED JULY 30, 1999. COPIES OF SAID AGREEMENTS MAY BE
EXAMINED AT THE PRINCIPAL OFFICE OF THE CORPORATION.
The first legend set forth above may be removed if and when the
Shares represented by such certificate may be disposed of pursuant to an
effective registration statement under the Securities Act or in the opinion of
counsel to the Company such legend is no longer required under applicable
requirements of the Securities Act. The second legend set forth above may be
removed if and when the Escrow Shares represented by such certificate are
released from escrow in accordance with the terms of the Escrow Agreement. The
stock certificates representing the Shares shall also bear any other legends
required by applicable Federal or state securities laws, which legends may be
removed when, in the opinion of counsel to the Company, such legends are no
longer required under the applicable requirements of such securities laws. The
Company agrees that it will provide the Subscriber, upon request, with a
substitute stock certificate or certificates, free from such legends at such
time as such legends are no longer applicable.
10. Restriction on Dealing in Company Stock. The Subscriber
covenants to, and agrees with the Company that unless and until the earliest of
(a) the abandonment of the WSS Acquisition or (b) the completion and public
announcement of the completion of the WSS Acquisition, he will not, directly or
indirectly, engage in, or cause any other person to engage in any
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transaction, for his own account or the account of any other person, involving
any of the Company's securities, including without limitation any purchase or
sale of the Company's securities, other than the purchase and any sale of the
Shares as contemplated by this Agreement and the Escrow Agreement.
11. Stop Transfer Instruction. The Subscriber agrees that the
Company shall be entitled to make a notation on its records and give
instructions to any transfer agent of the Company in order to implement the
restrictions on transfer set forth in this Agreement.
12. Fees and Expenses. Whether or not the transactions contemplated
by this Agreement are consummated, each party hereto shall pay its own expenses
and the fees and expenses of its counsel and accountants and other experts.
13. Entire Agreement; Amendments. This Agreement, together with the
Exhibits and Schedules hereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, including,
without limitation, the Subscription Agreement.
14. Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be deemed to have been
received (a) upon hand delivery (receipt acknowledged) or delivery by telex
(with correct answer back received), telecopy or facsimile (with transmission
confirmation report) at the address or number designated below (if delivered on
a business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered other
than on a business day during normal business hours where such notice is to be
received) or (b) on the second business day following the date of mailing by
express courier service, fully prepaid, addressed to such address,
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or upon actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be:
If to the Company:
Vacation Emporium Corporation
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxx Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier: (000) 000-0000
Attn.: Xxxxxx X. Xxxxx, Esq.
If to the Subscriber:
Xxxxx X. Xxxxxxx
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxx. 000
Xxxxxxx, Xxxxxxxx 00000
or such other address as may be designated in writing hereafter, in the same
manner, by such person.
15. Amendments; Waivers, Jurisdiction. No provision of this
Agreement may be waived or amended except in a written instrument signed, in the
case of an amendment, by both the Company and the Subscriber, or, in the case of
a waiver, by the party against whom enforcement of any such waiver is sought. No
waiver of any default with respect to any provision, condition or requirement of
this Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right accruing to it thereafter. Each party
hereto irrevocably submits to the non-exclusive jurisdiction of
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any state or federal court located in New York County, State of New York, in
respect of any legal action, suit or proceeding arising out of this Agreement or
the transactions contemplated hereby.
16. Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
17. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York
without regard to the principles of conflicts of law thereof.
18. Counterpart. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
19. Severability. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
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substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of July 30, 1999.
PURCHASER:
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
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ACCEPTANCE OF SUBSCRIPTION
The Subscription Agreement of the Subscriber indicated herein below
with respect to Vacation Emporium Corporation is hereby accepted, and such
Subscriber is hereby allocated the Shares indicated below.
VACATION EMPORIUM CORPORATION
By: /s/ Xxx Xxxx
----------------------------------------
Name: Xxx Xxxx
Title: Chairman
Subscriber: Xxxxx X. Xxxxxxx
No. of Shares of Common Stock Allocated: 351,282
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