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EXHIBIT 10.10
INVESTMENT AGREEMENT
This Investment Agreement (this "Agreement"), dated as of __________,
2000, is made between ____________________________________ (the "Investor") and
Samuels Jewelers, Inc., a Delaware corporation (the "Company").
WHEREAS, the Investor desires to purchase shares of common stock, par
value $.001 per share ("Common Stock"), of the Company; and
WHEREAS, the Company desires to sell shares of Common Stock to
Investor;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged and affirmed, the
Investor and the Company, by executing this Agreement, acknowledge, covenant,
agree, represent and warrant that:
(1) Investment. The Investor hereby subscribes to purchase and agrees
to purchase ______________________________________________________ (________)
shares (the "Shares") of the common stock, par value $.001 per share ("Common
Stock"), of the Company for the price of FIVE DOLLARS AND TWENTY-FIVE CENTS
($5.25) per share, for an aggregate purchase price of $______________. The
purchase price shall be paid to the Company by wire transfer in cash on
_____________, 2000 and the Company shall issue shares of Common Stock upon
receipt of such payment that are duly authorized, fully paid and nonassessable.
Notwithstanding the foregoing, the Investor and the Company hereby agree that
the number of shares to be purchased by the Investor may be reduced by the
Company in the event that the number of shares subscribed by all investors in
the offering (of which this Agreement is a part), described in that Offering
Memorandum, dated as of April 24, 2000 (the "Offering"), is more than the total
number of shares available in the Offering. Any reduction by the Company of the
number of shares to be purchased by the Investor shall be derived as follows: by
multiplying (x) that number, stated as a percentage, derived by dividing (i) the
total number of shares the Investor initially desires to purchase as stated
herein by (ii) the total number of shares desired to be purchased by all
investors participating in the Offering, against (y) the total number of shares
that are offered in the Offering. In the event the Company reduces the number of
shares the Investor shall purchase, the Company shall also commensurately reduce
the proposed purchase price to reflect only those shares to be purchased by
Investor. After return of the appropriate executed investment materials (which
shall be described in the materials delivered to the Investor herewith), the
Company shall notify the Investor, at least three (3) days prior to
________________, 2000, of the number of shares of Common Stock the Investor
shall purchase and the corresponding purchase price, and shall provide the
necessary instructions to complete the wire transfer of the purchase price to
the account specified by the Company; provided that the Investor has returned
the appropriate investment materials by such date.
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(2) Investor Representations to the Company. The Investor, or the
Investor together with his representative for purposes of investing in the
Shares (the "Investor Representative"), represent and warrant to the Company as
follows:
(a) The Investor, or the Investor together with his Investor
Representative, has such knowledge and experience in
financial, tax and business matters, including substantial
experience in evaluating and investing in common stock and
other securities, so as to enable the Investor and/or his
Investor Representative to utilize the information referred to
in subsection (d) below and any other information made
available to the Investor and/or his Investor Representative
in order to evaluate the merits and risks of an investment in
the Shares and to make an informed investment decision with
respect thereto.
(b) The Investor's Investor Representative, if any, (i) is a
"purchaser representative" within the meaning of such term as
defined in Regulation D ("Regulation D") promulgated under the
Securities Act of 1933, as amended (the "Securities Act"),
(ii) has been acknowledged by the Investor, by identification
by the Investor in the space provided below, to be the
Investor's "purchaser representative" in connection with
evaluating the merits and risks of the Investor's prospective
investment in the Shares and (iii) has made all disclosures to
the Investor as are required to be made by a "purchaser
representative" pursuant to Regulation D. The Investor's
Investor Representative is: ________________________________
(insert "None" if the Investor has no Investor
Representative).
(c) The Investor is acquiring the Shares for his own account,
for investment purposes only and not with a view to, and not
for offer or sale in connection with, any distribution or
resale of the Shares.
(d) The Company has made available and the Investor and/or his
Investor Representative has reviewed that certain Samuels
Jewelers, Inc. Confidential Private Offering Memorandum, dated
April 24, 2000, and such other information which the Investor
and/or his Investor Representative considers necessary or
appropriate to evaluate the risks and merits of an investment
in the Shares.
(e) The Investor and/or his Investor Representative has had
the opportunity to question, and has questioned, to the extent
deemed necessary or appropriate, representatives of the
Company so as to receive answers and verify information
obtained in the Investor's and/or his Investor
Representative's examination of the Company, including the
information referred to in subsection (d) above and any other
documents or information that the Investor and/or his Investor
Representative has reviewed in relation to the Investor's
investment in the Shares.
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(f) No oral or written representations have been made or oral
or written information furnished to the Investor and/or his
Investor Representative in connection with the Investor's
acquisition of the Shares which were in any way inconsistent
with the information set forth in the information reviewed by
the Investor and/or his Investor Representative.
(g) Neither the Investor nor his Investor Representative is
relying on the Company or the references to any legal or other
opinion in the materials reviewed by the Investor and/or his
Investor Representative with respect to the tax considerations
of the Investor relating to his investment in the Shares. The
Investor has relied solely on the representations, warranties,
covenants and agreements contained in
___________________________________________________, or his
Investor Representative's examination and independent
investigation and his Investor Representative's advice in
making his decision to acquire the Shares.
(h) The Investor's financial condition and income are such
that (i) the Investor is under no present need to dispose of
any portion of the Shares to satisfy any existing or
contemplated undertaking or indebtedness and (ii) the Investor
is able to bear the economic risk of investment in the Shares,
including the risk of losing his entire investment and the
risk of not being able to sell or transfer any of the Shares
for an indefinite period of time.
(i) The Investor understands that he may be required to bear
the economic risk of investment in the Shares for an
indefinite period of time because the Shares may not, without
full compliance with the registration and prospectus delivery
requirements of the Securities Act, be offered, sold or
delivered except in a transaction exempt from, or not subject
to, the registration and prospectus delivery requirements of
the Securities Act.
(j) The Investor will not transfer or pledge any or all of the
Shares in violation of the Securities Act or any applicable
Blue Sky Laws and in the event that the Investor pledges any
of the Shares, the Investor will advise the pledgee of the
transfer restrictions imposed on the Shares by this Agreement
and will use his best efforts to obtain an undertaking from
such pledgee not to transfer such Shares in violation of the
Securities Act or applicable Blue Sky Laws.
(k) The certificates from time to time evidencing the Shares
may, at the Company's option, bear a legend which provides
that the Shares may not be transferred unless the Company is
delivered a legal opinion, satisfactory to the Company in its
sole discretion, to the effect that such transfer may be made
without compliance with the registration and prospectus
delivery requirements of the Securities Act and applicable
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Blue Sky Laws. Such legal opinion shall be given by counsel
satisfactory to the Company, at the Investor's expense.
(l) The Investor acknowledges that he has received no general
solicitation or general advertising and that he has not
attended any seminar or meeting with respect to the Shares,
nor is he aware of any such solicitation or advertisement.
(m) The Investor is an "accredited investor" within the
meaning of Rule 501 of Regulation D under the Securities Act.
(n) The Investor shall take all further actions necessary to
facilitate the issuance of the Shares to the Investor under an
appropriate exemption from registration under the Securities
Act and applicable Blue Sky Laws, including, without
limitation, providing the Company with such information as the
Company may require to complete a Form D and any related or
similar forms or applications required under the Securities
Act or applicable Blue Sky Laws.
(o) The Investor has full power and authority to execute this
Agreement and to invest in the Shares; this Agreement
constitutes the valid and legally binding obligation of such
Investor, enforceable against such Investor in accordance with
its terms.
(3) Registration of the Shares. The Company hereby agrees to use
reasonable commercial efforts to prepare and file with the United States
Securities and Exchange Commission (the "Commission"), and to cause to become
effective under the Securities Act, not later than December 31, 2000, a
registration statement on an applicable form relating to the resale, from time
to time, of the Shares (which, for purposes of this Section 3, shall be referred
to as the "Registrable Securities") by the Investor in accordance with the plan
and method of distribution set forth in the prospectus forming part of such
registration statement. The Company shall bear all expenses directly related to
the performance of its obligations under this Section 3 of this Agreement.
(4) Condition to the Purchase. The Investor's purchase and the
Company's sale of the Shares pursuant to this Agreement shall not be completed
until all necessary approvals, authorizations and clearances of any government,
regulatory or administrative authority, agency or commission, or any court,
tribunal or judicial or arbitral body shall have been obtained and any
applicable waiting periods shall have expired. If the consummation the purchase
described in Section 1 hereof cannot be effected on the date provided therefor
because of the terms of this Section 4, the purchase shall be effected no later
than five days following the receipt of the necessary approval, authorization or
clearance or the expiration of the applicable waiting period that had inhibited
such consummation.
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(5) Miscellaneous.
(a) All notices, requests or consents required or permitted
under this Agreement shall be made pursuant to the provisions
of this Agreement. Any written notice shall be given by
personal delivery, registered or certified mail (with return
receipt), overnight air courier (with receipt signature) or
facsimile transmission (with "answerback" confirmation of
transmission), sent to such party's address or telecopy
numbers as are set forth below such party's signatures to this
Agreement, or such other addresses or telecopy numbers of
which the parties have give notice pursuant to this subsection
(a). Each such notice, request or consent shall be deemed
effective upon the date of actual receipt, receipt signature
or confirmation of transmission, as applicable.
(b) The provisions hereof shall inure to the benefit of the
Company, its successors and assigns and shall be binding upon
the Investor, his legal representatives, heirs and assigns.
Nothing in this Agreement shall limit any of the rights and
obligations of the parties under any other agreement between
them, or otherwise or any other document delivered in
connection therewith. The provisions hereof may not be
assigned by the Investor without the consent of the Company,
which consent may not be unreasonably withheld.
(c) This Agreement shall be governed by the laws of the State
of New York, without regard to the provisions thereof relating
to conflict of laws.
(d) This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
INVESTOR
Name:
By:
Its:
Address for Notices:
Telecopy Number:
The undersigned hereby makes, as to himself and for the benefit of the
Company, the acknowledgements, covenants, agreements, representations and
warranties set forth in Sections 2(a), 2(b), 2(d), 2(e), 2(f) and 2(g) above.
INVESTOR REPRESENTATIVE
Name:
SAMUELS JEWELERS, INC.
Name:
By: E. Peter Healey
Its: Chief Financial Officer and Secretary
Address for Notices:
2914 Montopolis Drive, Suite 200
Austin, Texas 78741
Telecopy Number: (512) 369-1515
