DATED 31 MARCH 2000
(1) SCOOP, INC.
- and -
(2) INFINICOM AB
SUBSCRIPTION AGREEMENT
White & Case
7-11 Moorgate
London
EC2R 6HH
Tel: 020 7726 6361
Fax: 020 7726 4314
Ref: GJH
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this "Agreement") is entered into as of
this 31st day of March, 2000 by and between SCOOP, INC., a corporation organized
and existing under the laws of the State of Delaware (the "Company"), and
INFINICOM AB (publ), a holding company formed under the laws of the Kingdom of
Sweden ("Subscriber").
RECITALS:
WHEREAS, the Company and the Subscriber are parties to that certain
Deed of Subscription, Amendment and Release dated 31 March 2000 (the "Deed") by
and among Michael John Neame, Martin Clarke, 24STORE.com Limited, the Company
and the Subscriber;
WHEREAS, in accordance with the Deed, the Company desires to sell to
Subscriber and Subscriber desires to purchase from the Company an aggregate of
8,784,349 shares of common stock, par value $0.001, of the Company (the
"Subscribed Stock") pursuant to the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained here, and for valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged and confessed, the parties to this
Agreement (hereinafter collectively "parties" and individually "party") agree as
follows:
AGREEMENT:
1. OFFER AND SUBSCRIPTION.
(a) Offer. This Agreement constitutes an irrevocable offer by the
Company to sell the Subscribed Stock to Subscriber upon the terms set forth in
this Agreement.
(b) Subscription. Subject to the terms and conditions hereof,
Subscriber hereby irrevocably subscribes and offers to purchase the Subscribed
Stock for a total consideration consisting of (i) cash in the amount of
US$1,870,426 (the "Cash Consideration") and (ii) the full release of the Debt
Obligations (as defined in the Deed).
2. CLOSING.
(a) Closing Date. The closing for the purchase of the Subscribed Stock
in accordance with the terms and conditions of this Agreement (the "Closing")
shall take place on such date as the parties shall mutually agree.
(b) Payment and Delivery. At the Closing, the Company shall issue and
deliver or cause to be delivered to Subscriber a certificate representing the
Subscribed Stock, registered in the name of Subscriber, against payment therefor
by (i) delivery to the Company of a bank check or wire transfer or other
acceptable transfer method in the amount of the Cash Consideration and (ii)
release of the Debt Obligations in accordance with the Deed.
3. REPRESENTATIONS AND WARRANTIES.
Subscriber hereby represents, warrants and covenants to the Company,
as follows:
(a) Residence. Subscriber's permanent legal executive offices and
principal place of business is in the Kingdom of Sweden at both the time of the
"offer" and the "sale" of the Subscribed Stock to Subscriber.
(b) Opportunity to Ask Questions and to Review Documents, Books and
Records. During the course of the transaction contemplated by this Agreement,
and before purchasing the Subscribed Stock, Subscriber has had the opportunity,
to the extent Subscriber has determined to be necessary, to (i) be provided with
financial and other written information about the Company, (ii) to ask questions
and receive answers concerning the terms and conditions of this Agreement, an
investment in the Subscribed Stock, and the business of the Company and its
finances, (iii) to review all documents, books and records of the Company, and
(iv) that Subscriber has, to the extent it has availed itself of this
opportunity, received satisfactory information and answers.
(c) Accredited Investor. Subscriber is an "accredited investor" as
that term is defined in Rule 501 of Regulation D promulgated under the
Securities Act because Subscriber is a corporation, partnership (general or
limited), limited liability company/partnership, or (Massachusetts) business
trust which was not formed for the specific purpose of acquiring the Subscribed
Stock and Subscriber has total assets in excess of $5,000,000.
(d) Knowledge and Experience. Subscriber represents that, by reason of
Subscriber's knowledge and experience in business or financial matters, that
Subscriber is capable of evaluating the merits and risks of an investment in the
Company.
(e) Sophistication. Subscriber represents that by reason of
Subscriber's business or financial experience, Subscriber can be reasonably
assumed to have the capacity to protect Subscriber's own interest in connection
with the transaction contemplated by this Agreement.
(f) Independent Review of Investment Merits. During the course of the
transaction contemplated by this Agreement, and before purchasing the Subscribed
Stock, Subscriber has had the opportunity to obtain an independent review of the
investment merits of a proposed subscription in the Subscribed Stock including,
without limitation, the terms and conditions of this Agreement, by investments
professionals including, without limitation, investment, tax, accounting and
legal advisors, and that Subscriber has, to the extent it has availed himself of
this opportunity, received satisfactory information and answers from such
advisors.
(g) Investment Risks. Subscriber has been informed and understands and
agrees as follows: (i) an investment in the Subscribed Stock is a speculative
investment with a high degree of risk of loss and Subscriber must, therefore, be
able to presently afford a complete loss of this investment; (ii) Subscriber
must be able to hold the Subscribed Stock indefinitely due to, among other
factors, substantial restrictions on the transferability of the Subscribed Stock
and there being no public market for resale of the Subscribed Stock; (iii) it
may not be possible to liquidate the Subscribed Stock in the case of emergency
and/or other need and Subscriber must, therefore, have adequate means of
providing for Subscriber's current and future needs and personal contingencies
and have no need for liquidity in this investment; and (iv) Subscriber has
evaluated Subscriber's financial resources and investment and investment
position in view of the foregoing, and is able to bear the economic risk of this
investment.
(h) No Advertising. To the best of Subscriber's knowledge and belief
the offer and sale of the Subscribed Stock was not accomplished by the
publication of any advertisement, article, notice or other communication
published in any newspaper, magazine, or similar media or broadcast over
television or radio; nor was the offer and sale of the Subscribed Stock
accomplished through any similar or meeting to which Subscriber was invited by
any such publication or advertisement.
(i) Securities Purchased for Subscriber's Own Account. The Subscribed
Stock is being purchased by Subscriber as principal and not by any other person,
with Subscriber's own funds and not with the funds of any other person, and for
the account of Subscriber and not as a nominee or agent and not for the account
of any other person. Subscriber is purchasing the Subscribed Stock for
investment for an indefinite period and not with a view to the sale or
distribution of any part or all thereof by public or private sale or other
disposition. No person other than Subscriber will have any interest, beneficial
or otherwise, in the Subscribed Stock, and Subscriber is not obligated to
transfer the Subscribed Stock to any other person nor does Subscriber have any
agreement or understanding to do so. Subscriber understands that the Company is
relying in material part upon Subscriber's representations as set forth herein
for purposes of claiming the Applicable Securities Exemptions and that the basis
for such exemptions may not be presented if, notwithstanding Subscriber's
representations, Subscriber intends merely to acquire the Subscribed Stock for
resale on the occurrence or nonoccurrence of some predetermined event.
Subscriber has no such intention.
(j) Authority of Signatories. The persons who have executed this
Agreement on behalf of Subscriber have the full power and authority to execute
this Agreement on behalf of Subscriber and to make the representations and
warranties made herein on Subscriber's behalf and this investment has been
affirmatively authorized by the governing board or principals of Subscriber and
is not prohibited by the governing documents of Subscriber or by law.
(k) Material Changes in Representations. Subscriber will notify the
Company immediately of any material change(s) in any statement made herein
occurring prior to the closing of the purchase by it of the Subscribed Stock.
4. MISCELLANEOUS.
(a) Survival of Representations. All representations and warranties
made by any party in connection with any transaction contemplated by this
Agreement shall, irrespective of any investigation made by or on behalf of any
party hereto, survive the execution and delivery of this Agreement, the
performance or consummation of any transaction described in this Agreement, and
the termination of this Agreement for a period of six months from the date of
this Agreement.
(b) Governing Law. THIS AGREEMENT AND THE RIGHTS AND REMEDIES OF EACH
PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, WITHOUT
LIMITATION, EQUITABLE REMEDIES) SHALL BE SOLELY GOVERNED BY, INTERPRETED UNDER,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS (WITHOUT REGARD TO THE
CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF CALIFORNIA, AS IF THIS
AGREEMENT WERE MADE, AND AS IF ITS OBLIGATIONS ARE TO BE PERFORMED, WHOLLY
WITHIN THE STATE OF CALIFORNIA.
(c) Assignment and Delegation; Successors and Assigns.
(i) Prohibition Against Assignment or Delegation. Except as
specifically provided in this Agreement, neither the Company nor Subscriber
may sell, license, transfer or assign (by operation of law or otherwise)
any such party's rights or Interest in this Agreement or delegate such
party's duties or obligations under this Agreement, in whole or in part,
without the prior written consent of the other party, which consent may be
withheld in such other party's sole discretion. Any purported assignment or
transfer in violation of the terms of this clause (i) shall be null and
void ab initio and of no force and effect, and shall vest no rights or
interest in the purported assignee.
(ii) Successors and Assigns. Subject to the foregoing, all of the
representations, warranties, covenants, conditions and provisions of this
Agreement shall be binding upon and shall inure to the benefit of each
party and such party's respective successors and permitted assigns
(including, without limitation, spouses, heirs, executors, administrators,
and personal and legal representatives.
(d) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one and the same instrument, binding on all parties hereto. Any signature of
this Agreement may be detached from any counterpart of this Agreement and
reattached to any other counterpart of this Agreement identical in form hereto
by having attached to it one or more additional pages.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed in their respective corporate names by their respective officers, each
of whom is duly and validly authorized and empowered, all as of the day and year
first above written.
INFINICOM AB (publ)
By: /s/ Larsake Sandin
-------------------
Title: Director
SCOOP, INC.
By: /s/ Larsake Sandin
-------------------
Title: Director