SUBSCRIPTION AGREEMENT
This Subscription Agreement (the "Agreement") is effective on this 14th day
of January, 2002 by and between HouseHold Direct, Inc., a Delaware corporation
("HouseHold" or "Company") and Sprout Investments, LLC, a Colorado limited
liability company ("Buyer").
RECITALS
WHEREAS HouseHold desires to raise certain capital and is willing to sell a
number of shares of its common stock for this purpose; and
WHEREAS Buyer is willing to purchase a number of shares of common stock
from HouseHold on a continuing basis over a period of time; and
WHEREAS The parties are willing to complete the purchase transactions
described herein on certain terms and conditions.
NOW THEREFORE, in consideration of the above recitals, the representations
and promises herein contained and such other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
AGREEMENT
1. Availability of Common Stock.
-----------------------------
HouseHold is offering to sell up to 8.4 million shares of its common stock,
par value .001 per share on a continuous basis over a period of time for
the purpose of providing capital to the company (the "Shares").
1. Subscription.
------------
Buyer hereby irrevocably subscribes for and agrees to purchase the Shares
upon the terms and conditions set forth in this Agreement .
1. Terms of Purchase.
-----------------
It is understood and agreed that this Agreement and the parties performance
hereof is subject to the following terms and conditions:
(a) The purchase and sale of the Shares will take place over a
period of time whereby HouseHold has the right to put a
certain number of the Shares to Buyer and Buyer hereby agrees
to purchase such shares subject only to the conditions set
forth herein.
(b) The purchase price to be paid by Buyer for any of the Shares
put to Buyer by HouseHold shall be ninety percent (90%) of the
lowest three days average closing per share bid price reported
for the HouseHold's common stock for the five trading days
prior to the date of Company's put notice to Buyer.
(c) The amount of HouseHold common stock which may be put to Buyer
at any given time is limited to fifteen percent (15%) of the
daily average share trading volume for the Company's common
stock for the previous twenty (20) trading days prior to the
date of the Company's put notice to Buyer. Company may
initiate a put notice no less than twenty (20) days from the
previous put notice to Buyer. Upon receipt of the Company's
put, Buyer shall have three (3) days to complete the sale and
deliver the purchase proceeds to HouseHold.
(d) HouseHold agrees that all shares put to Buyer shall be
registered shares under the Securities and Exchange Commission
for this purpose.
(e) Buyer understands and agrees that Buyer will not resell any
shares purchased by Buyer from HouseHold under the terms of
this Agreement for a period of sixty (60) days after the date
of each purchase.
1. Representations and Warranties of Buyer.
---------------------------------------
Buyer hereby represents and warrants to and agrees with HouseHold the
following:
(a) Buyer has been furnished with and has carefully read the Registration
Rights Agreement attached hereto as Exhibit "A" and incorporated by
reference herein (the "Rights Agreement"). Buyer has carefully
considered and has, to the extent Buyer believers is necessary,
discussed with Buyer's professional legal, tax, accounting and
financial advisors the suitability of an investment in HouseHold and
Buyer has made an independent determination that the investment being
made by Buyer is a suitable investment for Buyer.
(a) The Buyer acknowledges that all documents, records, and books
pertaining to this investment which the Buyer has requested have been
made available for inspection or the Buyer has had access thereto.
(a) The Buyer has had a reasonable opportunity to ask questions of and
receive answers from a person on a persons acting on behalf of the
Company concerning the Offering and if such opportunity was taken, all
such questions have been answered to the full satisfaction of the
Buyer.
(a) The Buyer will not sell or otherwise transfer the Shares without
registration under the Securities Act of 1933 ("1933 Act") or
applicable state securities laws or compliance with an exemption
therefrom. Buyer further represents that it is buying the Shares for
its own account, for investment and not with a view to resale or
distribution except in compliance with the 1933 Act.
(a) Buyer has not offered or sold any portion of the Shares being herein
acquired nor does Buyer have any present intention of dividing the
Shares with others or of selling, distributing or otherwise disposing
of any portion of the Shares either currently or after a passage of a
fixed or determinable period of time or upon the occurrence or
non-occurrence of any predetermined event or circumstance in violation
of the 1933 Act.
(a) Buyer recognizes that an investment in the Shares is speculative,
involves substantial risks, including the loss of the entire amount of
such investment. Buyer has carefully read and considered the
information (including financials), risk factors and exhibits
contained in HouseHold's public filings with the Securities and
Exchange Commission to the date of this Agreement and including
Seller's amended SB2 registration statement.
(a) If this Subscription Agreement is executed and delivered on behalf of
a corporation: (i) such corporation has the full legal right and power
and all authority and approval required (a) to execute and deliver, or
authorize execution of delivery of, this Subscription Agreement and
all other instruments (including, without limitation, the Rights
Agreement) executed and delivered by or on behalf of such corporation
in connection with the purchase of the Shares and (b) to purchase and
hold the Shares; and (ii) the signature of the party signing on behalf
of such corporation is binding upon such corporation.
(a) The Buyer is not subscribing for the Shares as a result of, or
pursuant to, any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast
over television or radio or presented at any seminar or meeting.
(a) The Buyer or the Buyer's representatives, as the case may be, has such
knowledge and experience in financial, tax and business matters so as
to Buyer to enable the Buyer to utilize the information made available
to the Buyer in connection with the purchase to evaluate the merits
and risks of an investment in the Shares an to make an informed
investment decision with respect thereto Buyer agrees that Craig G.
Ongley, Esq. Has acted as counsel solely to HouseHold and has not
acted as counsel to Buyer.
5. Representations and Warranties of HouseHold.
-------------------------------------------
HouseHold represents and warrants to Buyer the following:
(a) Organization and Qualification. HouseHold is duly organized and validly
existing in good standing under the laws of the state of Delaware and has the
requisite corporate and power and authorization to own its properties and to
carry on its business as now being conducted. HouseHold is duly qualified as a
foreign corporation to do business and is in good standing in every jurisdiction
in which its ownership of property or the nature of the business conducted by it
makes such qualification necessary, except to the extent that the failure to be
so qualified or be in good standing would not have a Material Adverse Effect. As
used in this Subscription Agreement, "MATERIAL ADVERSE EFFECT" means any
material adverse effect on the business, properties, assets, operations, results
of operations, financial condition or prospects of HouseHold taken as a whole,
or on the transactions contemplated hereby or by the agreements and instruments
to be entered into in connection herewith, or on the authority or ability of the
Company to perform its obligations hereunder.
(a) Authorization; Enforcement; Compliance With Other Instruments. (i)
HouseHold has the requisite corporate power and authority to enter into and
perform this Agreement and the Rights Agreement (collectively, the "TRANSACTION
DOCUMENTS"), and to issue the Shares in accordance with the terms hereof and
thereof, (ii) the execution and delivery of the Transaction Documents by
HouseHold and the consummation by it of the transactions contemplated hereby and
thereby, including without limitation the reservation for issuance and the
issuance of the Shares pursuant to this Subscription Agreement, have been duly
and validly authorized by HouseHold's Board of Directors and no further consent
or authorization is required by the company, its Board of Directors, or its
shareholders, (iii) the Transaction Documents have been duly and validly
executed and delivered by HouseHold, obligations of the Company enforceable
against the Company in accordance with their terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditors' rights and
remedies.
6. Notice of Certain Events Affecting Registration.
-----------------------------------------------
HouseHold shall promptly notify Buyer upon the occurrence of any of the
following events in respect of a registration statement or related prospectus
covering the Shares: (i) receipt of any request for additional information by
the SEC or any other federal or state governmental authority during the period
of effectiveness of the registration statement for amendments or supplements to
the registration statement or related prospectus; (ii) the issuance by the SEC
or any other federal or state governmental authority of any stop order
suspending the effectiveness of any registration statement or the initiation of
any proceedings for that purpose; (iii) receipt of any notification with respect
to the suspension of the qualification or exemption from qualification of any of
the Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; (iv) the happening of any event that makes any
statement made in such registration statement or related prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in the
registration statement, related prospectus or documents so that, in the case of
a registration statement, ti will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the related prospectus, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and (v) HouseHold's reasonable
determination that a post-effective amendment to the registration statement
would be appropriate, and HouseHold shall promptly make available to Buyer any
such supplement or amendment to the related prospectus.
7. Understandings.
--------------
The Buyer understands, acknowledges and agrees with HouseHold as follows:
(a) This Subscription may be rejected, in whole or in part, by the Company
in its sole and absolute discretion at any time before the date set for closing
unless the Company has given notice of acceptance of the undersigned's
subscription by signing this Subscription Agreement and delivering it to Buyer.
(a) No U.S. federal or state agency or any agency of any other jurisdiction
has made any finding or determination as to the fairness of the terms of the
Agreement for investment nor any recommendation or endorsement of the Company.
(c) The representations, warranties, and agreements of the undersigned and
the Company contained herein shall be true and correct in all material respect
on and as of the date of the sale of the Shares as if made on as such date and
shall survive the execution and delivery of this Subscription Agreement and the
purchase of the Shares.
(d) In making an investment decision, purchasers must rely on their own
examination of the company and the terms of the offering, including the merits
and risks involved. The shares have not been recommended by any federal or state
securities commission or regulatory authority. Furthermore, the foregoing
authorities have not confirmed the accuracy or determined the adequacy of this
document. Any representation to the contrary is a criminal offense.
8. Miscellaneous.
-------------
(a) Any notices, consents, waivers, or other communications required or
permitted to be given under the terms of this Agreement must be in writing and
will be deemed to have been delivered (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided a confirmation
of transmission is mechanically or electronically generated and kept on file by
the sending party); or (iii) one (1) day after deposition with a nationally
recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addressed and facsimile number for such
communications shall be:
If to HouseHold:
HouseHold Direct, Inc.
3 Glen Road
Sandy Hook, CT 06482
Attention: John Folger, President & CEO
Telephone: 203-426-2312
Facsimile: 203-426-5460
With a copy to : McCue & Lee, P.C.
14135 Midway Road, Suite 250
Addison, TX 75001
Attention: Craig G. Ongley, Esq.
Telephone: 972-490-0808
Facsimile: 972-490-9545
If to the Buyer:
Sprout Investments, LLC
3500 East 17th Avenue
Denver, Colorado 80206
Telephone: 561-251-8685
Facsimile: 954-596-0755
Each party shall provide five (5) business days prior notice to the other
party of any change in address, phone number or facsimile number.
(b) All pronouns and any variations thereof used herein shall be deemed to
refer to the masculine, feminine, impersonal, singular or plural, as the
identity of the person or persons may require.
(c) Neither this Agreement nor any provision hereof shall be waived,
modified, changed, discharge, terminated, revoked or canceled, except by an
instrument in writing signed by the party effecting the same against whom any
change, discharge or termination is sought.
(d) Notices required or permitted to be given hereunder shall be in writing
and shall be deemed to be sufficiently given when personally delivered or sent
by facsimile transmission: (i) if to HouseHold, at its executive offices or (ii)
if to the Buyer, at the address for correspondence set forth herein, or at such
other address as may have been specified by written notice given in accordance
with this paragraph.
(e) This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of the State of Delaware, as such laws are
applied by Delaware courts to agreements entered into, and to be performed in,
Delaware by and between residents of Delaware, and shall be binding upon the
undersigned, the undersigned's heirs, estate, legal representatives, successors
and assigns and shall inure to the benefit of HouseHold, its successors and
assigns. If any provision of this Subscription Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provisions
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of law. Any
provision hereof that may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision hereof.
(f) This Agreement, together with Exhibit A attached hereto and made part
hereof, constitute the entire agreement between the parties hereto with respect
to the subject matter hereof and may be amended only by a writing executed by
both parties hereto.
(g) This Agreement may be executed in two or more counterparts, all of
which taken together shall constitute one instrument. Execution and delivery of
this Agreement by exchanges of facsimile copies bearing the facsimile signature
of a party shall constitute a valid and binding execution and delivery of this
Agreement by such party. Such facsimile copies shall constitute enforceable
original documents.
(h) Should the parties have any dispute, claim, or cause of action arising
directly or indirectly from the subject matter, provisions, performance or
interpretation of this Agreement it si hereby agreed that all such controversies
of any kind be resolved solely and exclusively by arbitration. The arbitration
shall be conducted by the American Arbitration Association and such arbitration
shall be conducted in accordance with the rules and procedures established by
the Association for commercial disputes. The parties agree that the award or
determination by the arbitration(s) shall be final and there shall be no appeal
regarding such award or determination in any court or tribunal no matter where
located. It is understood and agreed by the parties that the sole and excessive
venue for any such arbitration shall be Sand Hook, Connecticut.
IN WITNESS WHEREOF the parties have set their hand on the first date
above written.
HouseHold Direct, Inc. Sprout Investments, LLC
By: /s/John D. Folger By: /S/
Title: President Title: Member
EXHIBIT
A
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of this 14th day
of January, 2002, by and between HOUSEHOLD DIRECT, INC., a company organized
under the laws of state of Delaware, with its principal executive office at 3
Glen Road, Sandy Hook, CT 06482 (the "Company"), and Sprout Investments, LLC,
(the "Investor").
WHEREAS, upon the terms and subject to the conditions of the Subscription
Agreement between the Investor and the Company (the "Subscription Agreement"),
the Company has agreed to issue and sell to the Investor certain shares of
common stock of the Company (the "Shares"); and
WHEREAS, to induce the Investor to execute and deliver the Subscription
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "1933 Act"), and
applicable state securities laws, with respect to the Shares of issuable
pursuant to the Subscription Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained hereinafter and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Investor hereby agree as follows:
1. Definitions.
-----------
As used in this Agreement, the following terms shall have the following
meanings:
(a) "Closing Date" means the date funds are received by the Company
pursuant to the Subscription Agreement.
(b) "Holder" means the Investor.
(c) "Person" means a corporation, a limited liability company, an
association, a partnership, an organization, a business, an
individual, a governmental or political subdivision thereof or a
governmental agency.
(d) "Potential Material Event" means any of the following: (i) the
possession by the Company of material information not ripe for
disclosure in a Registration Statement, which shall be evidenced by
determinations in good faith by the Board of Directors of the Company
that disclosure of such information in the Registration Statement
would be detrimental to the business and affairs of the Company, or
(ii) any material engagement or activity by the Company which would,
in the good faith determination of the Board of Directors of the
Company, be adversely affected by disclosure in a Registration
Statement at such time, which determination shall be accompanied by a
good faith determination by the Board of Directors of the Company that
the Registration Statement would be materially misleading absent the
inclusion of such information.
(e) "Principal Market" means either The American Stock Exchange, Inc., The
New York Stock Exchange, Inc., the Nasdaq National Market, The Nasdaq
SmallCap Market or the National Association of Securities Dealer's,
Inc. OTC electronic bulletin board whichever is the principal market
on which the Common Stock is listed.
(f) "Register," "Registered," and "Registration" refer to a registration
effected by preparing and filing one or more Registration Statements
in compliance with the 1933 Act and pursuant to Rule 415 under the
1933 Act or any successor rule providing for offering securities on a
continuous basis ("Rule 415"), and the declaration or ordering of
effectiveness of such Registration Statement(s) by the United States
Securities and Exchange Commission (the "SEC").
(g) "Registrable Securities" means the Shares as defined in and issued or
issuable pursuant to the Subscription Agreement.
(h) "Registration Statement" means a registration statement of the Company
filed under the 1933 Act.
All capitalized terms used in this Agreement and not otherwise defined
herein shall have the same meaning ascribed to them as in the Subscription
Agreement.
2. Registration.
-------------
(a) Mandatory Registration. The Company shall prepare, and, as soon as
practicable file with the SEC a Registration Statement or Registration
Statements (as is necessary) on Form SB-2 (or, if such form is unavailable for
such a registration, on such other form as is available for such a
registration), covering the resale of all of the Registrable Securities, which
Registration Statement(s) shall state that, in accordance with Rule 416
promulgated under the 1933 Act, such Registration Statement also covers such
indeterminate number of additional shares of Common Stock as may become issuable
upon stock splits, stock dividends or similar transactions. The Company shall
initially register for resale up to 8,400,000 shares of common stock. In the
event the Company cannot register sufficient shares of common stock, due to the
remaining number of authorized shares of common stock being insufficient, the
Company will use its best efforts to register the maximum number of shares it
can based on the remaining balance of authorized shares and will use its best
efforts to increase the number of its authorized shares as soon as reasonably
practicable.
(b) The Company shall use its best efforts to have the Registration
Statement(s) declared effective by the SEC within ninety (90) calendar days
after the Closing Date.
3. Obligation to File Amendments.
-----------------------------
The Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and the
prospectus used in connection with such Registration Statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be
necessary to keep such Registration Statement effective during the Registration
Period, and, during such period, comply with the provisions of the 1933 Act with
respect to the disposition of all Registrable Securities of the Company covered
by such Registration Statement until such time as all of such Registrable
Securities shall have been disposed of in accordance with the intended methods
of disposition by the Investor thereof as set forth in such Registration
Statement.
Prior to conversion of all the Shares, if at anytime the conversion of all
the Shares outstanding would result in an insufficient number of authorized
shares of common stock being available to cover all the conversions, then in
such event, the Company will move to call and hold a shareholder's meeting
within thirty (30) days of such event for the sole purpose of authorizing
additional shares of common stock to facilitate the conversions. In such an
event the Company shall recommend to all shareholders and management of the
Company to vote their shares in favor of increasing the authorized number of
shares of common stock. The Company represents and warrants that under no
circumstances will it deny or prevent Investor's right to convert the Shares as
permitted under the terms of the Subscription Agreement or this Registration
Rights Agreement.
4. Copies of Registration Statement.
--------------------------------
The Company shall furnish to the Investor whose Registrable Securities are
included in any Registration Statement and its legal counsel without charge (i)
promptly after the same is prepared and filed with the SEC at least one copy of
such Registration Statement and any amendment(s) thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits, the prospectus included in such Registration Statement (including
each preliminary prospectus) and, with regards to such Registration
Statement(s), any correspondence by or on behalf of the Company to the SEC or
the staff of the SEC and any correspondence from the SEC or the staff of the SEC
to the Company or its representatives, (ii) upon the effectiveness of any
Registration Statement, ten (10) copies of the prospectus included in such
Registration Statement and all amendments and supplements thereto (or such other
number of copies as the Investor may reasonably request) and (iii) such other
documents, including copies of any preliminary or final prospectus, as the
Investor may reasonably request from time to time in order to facilitate the
disposition of the Registrable Securities.
5. Duty to Notify.
--------------
As promptly as practicable after becoming aware of such event, the Company
shall notify each Holder in writing of the happening of any event as a result of
which the prospectus included in a Registration Statement, as then in effect,
includes an untrue statement of a material fact or omission to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading,
("Registration Default") and use all diligent efforts to promptly prepare a
supplement or amendment to such Registration Statement and take any other
necessary steps to cure the Registration Default.
6. Expenses of Registration.
------------------------
All reasonable expenses, other than underwriting discounts and commissions,
incurred in connection with registrations, filings or qualifications pursuant to
Sections 2 and 3, including, without limitation, all registration, listing and
qualifications fees, printing and accounting fees, and fees and disbursements of
counsel for the Company shall be paid by the Company.
7. Assignment of Registration Rights.
---------------------------------
The rights under this Agreement shall not be assignable.
8. Amendment of Registration Rights.
--------------------------------
Provisions of this Agreement may be amended and the observance thereof may
be waived (either generally or in a particular instance and either retroactively
or prospectively), only with the written consent of the Company and Investor.
Any amendment or waiver affected in accordance with this Section 8 shall be
binding upon Investor and the Company.
9. Miscellaneous.
--------------
(a) Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered (i) upon receipt,
when delivered personally; (ii) upon receipt, when sent by facsimile
(provided a confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or
(iii) one (1) day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such
communications shall be:
If to the Company:
Household Direct, Inc.
3 Glen Road
Sandy Hook, CT 06482
Attention: John Folger, President and CEO
Telephone: 203-426-2312
Facsimile: 203-426-5460
With a copy to:
McCue & Lee, P.C.
14135 Midway Road, Suite 250
Addison, Texas 75001
Attention: Craig Ongley, Esq.
Telephone: 972-490-0808
Facsimile: 972-490-9545
If to the Investor:
Sprout Investments, LLC 3500 East 17th Avenue Denver, Colorado 80206
Telephone: 561-251-8685
Facsimile: 954-596-0755
Each party shall provide five (5) business days prior notice to the other
party of any change in address, phone number or facsimile number.
(b) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such
right or remedy, shall not operate as a waiver thereof.
(c) The laws of the State of Delaware shall govern all issues
concerning the relative rights of the Company and its
stockholders and the parties hereto.
(d) This Agreement and the Transaction Documents constitute the
entire agreement among the parties hereto with respect to the
subject matter hereof and thereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth
or referred to herein and therein.
(e) This Agreement and the Transaction Documents supersede all prior
agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
(f) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(g) This Agreement may be executed in two or more identical
counterparts, each of which shall be deemed an original but all
of which shall constitute one and the same agreement. This
Agreement, once executed by a party, may be delivered to the
other party hereto by facsimile transmission of a copy of this
Agreement bearing the signature of the party so delivering this
Agreement.
(h) Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments
and documents, as the other party may reasonably request in order
to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
(i) The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent and
no rules of strict construction will be applied against any
party.
IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement
to be duly executed as of the day and year first above written.
HOUSEHOLD DIRECT, INC. Sprout Investments, LLC
By: /s/John D. Folger By: /S/
Title: President Title: Member