Exhibit 4
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Name of Investor (please print)
STOCK SUBSCRIPTION AGREEMENT
XxxxxXxx Technologies, Inc.
0 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Chief Financial Officer
Gentlemen:
1. Subscription. Pursuant the Term Sheet dated February 20, 2002 (Exhibit
A) and subject to the terms and conditions hereof, the undersigned (the
"Investor") hereby irrevocably subscribes for and agrees to purchase
______shares (the "Common Stock" or "Securities") of Common Stock, $.01 par
value of XxxxxXxx Technologies, Inc., a Delaware corporation (the "Company").
The Investor tenders herewith good funds in the amount of $______ (_____Dollars)
payable to the Company by certified check, wire transfer or other such
consideration acceptable to the Company.
2. Acceptance of Subscription. The Investor understands and agrees that
this subscription is made subject to the unconditional right of the Company to
reject any subscription, in whole or in part, for any reason whatsoever.
3. Representations and Warranties of the Undersigned. The Investor
understands and acknowledges that the Securities are being offered and sold
under one or more of the exemptions from registration provided for in Section
4(2) of the Securities Act of 1933, as amended (the "Securities Act), and any
applicable state securities laws. The Investor is purchasing the Securities
without being offered or furnished any formal offering literature or prospectus
other than the Company's periodic reports (the "Offering Materials") filed
pursuant to the Securities Act of 1934, as amended (the "Exchange Act"). The
Investor understands that this transaction has not been reviewed and approved by
the Securities and Exchange Commission (the "SEC") or by any state regulatory
authority. All documents pertaining to this investment have been made available
to the Investor and his representatives, and that the books and records of the
Company are available upon reasonable notice for inspection by the Investor
during reasonable business hours at the Company's principal place of business.
3.1. Suitability. The Investor confirms that s/he understands and
has fully considered the risks of this investment and understands that (i) this
investment is suitable only for an investor who is able to bear the economic
consequences of losing his entire investment, (ii) the purchase of the
Securities is a speculative investment which involves a high degree of risk, and
(iii) there are substantial restrictions on the transferability of, and there
will be no immediate public market for, the Securities, and accordingly, it may
not be possible for him to liquidate his investment in case of emergency. The
Investor's overall commitment to investments which are not readily marketable is
not disproportionate to the undersigned's net worth, and the Investor's
investment in the Company will not cause such overall commitment to become
excessive.
3.2 Lack of Liquidity. The Investor confirms that s/he is able (i)
to bear the economic risk of this investment, and (ii) to hold the Securities
for an indefinite period of time. The Investor has sufficient liquid assets so
that the illiquidity associated with this investment will not cause any undue
financial difficulties or affect the undersigned's ability to provide for his
current needs and possible financial contingencies, and that his commitment to
all speculative investments is reasonable in relation to his net worth and
annual income.
3.3 Knowledge and Experience. The Investor has such knowledge and
experience in financial and business matters that he is capable of evaluating
the merits and risks of this investment and of making an informed investment
decision.
3.4 Access to Management. The Investor confirms that, in making the
decision to purchase the Securities, s/he has relied solely upon independent
investigations made by him/her, and that s/he has been given the opportunity to
ask questions of, and to receive answers from, management and other persons
acting on behalf of the Company concerning the Company and the terms and
conditions of this offering.
3.5 Investment Intent. The Securities are being acquired by the
undersigned solely for his/her own personal account, for investment purposes
only, and not with a view to, or in connection with, any resale or distribution
thereof. The Investor has no contract, undertaking, understanding, agreement or
arrangement, formal or informal, with any person to sell, transfer or pledge to
any person the Securities for which s/he hereby subscribes, or any part thereof,
or any interest therein or any rights thereto. The Investor has no present plans
to enter into any such contract, undertaking, agreement or arrangement. The
Investor must bear the economic risk of the investment for an indefinite period
of time because the Securities have not been registered under the Securities Act
and applicable state securities laws and, therefore, cannot be sold unless they
are subsequently registered under the Securities Act and applicable state
securities laws or unless an exemption from such registration is available.
3.6 Restrictive Legend. The Investor consents to the placement of a
restrictive legend on the certificate(s) for the Securities as required by
applicable securities laws.
4. Registration Rights. The Company hereby grants the following
registration rights with respect to the Securities.
4.1 "Piggy-Back" Registrations. For a period of two years from the
date hereof, if at any time the Company shall determine to register in a public
offering for its own account (and not the account of selling stockholders) under
the Securities Act any of its Common Stock, it shall send to the Investor
written notice of such determination and, if within 15 days after receipt of
such notice, the Investor shall so request in writing, the Company shall use its
best efforts to include in such registration statement all or any part of the
Securities such holder requests to be registered. This right shall not apply to
a registration of shares of Common Stock on Form S-4 or Form S-8 (or their then
equivalents) relating to shares of Common Stock to be issued by the Company in
connection with any acquisition of any entity or business, or shares of Common
Stock issuable in connection with any stock option or other employee benefits
plan, respectively.
If, in connection with any offering involving an underwriting
of Common Stock to be issued by the Company for the account of the Company, the
managing underwriter shall impose a limitation on the number of shares of such
Common Stock which may be included in any such registration statement because,
in its judgment, such limitation is necessary to effect any orderly public
distribution of the Common Stock and to maintain a stable market for the
securities of the Company, then the Company shall be obligated to include in
such registration statement only such limited portion (which may be none) of the
Securities with respect to which the Investor and all other selling stockholders
have requested inclusion thereunder.
In connection with any registration of the Company's Common
Stock hereunder, the Investor agrees to enter into "lockup" agreements and any
and all similar agreements required by the managing underwriter of the offering.
4.2 Expenses. In the case of a registration under Section 4.1, the
Company shall bear all costs and expenses of each such registration, including,
but not limited to, printing, legal and accounting expenses, SEC and NASD filing
fees and all related "Blue Sky" fees and expenses; provided, however, that the
Company shall have no obligation to pay or otherwise bear any portion of the
underwriters' commissions or discounts attributable to the Securities being
offered and sold by the Investor or the fees and expenses of any counsel for the
Investor in connection with any registration of the Securities.
4.3 Expiration of Registration Rights. The obligations of the
Company under this Section 4 to register the Securities shall expire and
terminate at such time as the Investor shall be entitled to sell such securities
without restriction and without a need for the filing of a registration
statement under the Securities Act, including, without limitation, for any
resales of restricted securities made pursuant to Rule 144 as promulgated by the
SEC, or a sale made pursuant to Sections 4(1) and/or 4(2) under the Securities
Act.
5. Lock-Up Agreement. The Investor agrees not to sell, pledge,
transfer or otherwise dispose of, or grant any option or purchase right with
respect to, any Securities or engage in any short sale, hedging transaction or
other derivative security transaction involving the Securities, or other shares
of Common Stock of the Company held by him/her, for a period of eighteen months
from the date hereof.
6. Transferability. The undersigned agrees not to transfer or assign
this Agreement, or any of his interest herein, and further agrees that the
assignment and transfer of the Securities acquired pursuant hereto shall be made
only in accordance with all applicable laws. The registration rights provided in
Section 4 are personal to the Investor and are not transferable without the
prior consent of the Company.
7. Miscellaneous. This Agreement constitutes the entire Agreement
between the parties relative to the subject matter hereof, and supersedes all
proposals or agreements, written or oral, and all other communications between
the parties relating to the subject matter of this Agreement. No provision of
this Agreement shall be waived, amended, modified, superseded, canceled,
terminated, renewed or extended except in a written instrument signed by the
party against whom any of the foregoing actions is asserted. Any waiver shall be
limited to the particular instance and for the particular purpose when and for
which it is given. The invalidity, illegality or unenforceability of any
provision of this Agreement shall in no way effect the validity, legality or
enforceability of any other provision of this Agreement. This Agreement shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the internal laws of the Commonwealth of Massachusetts. All
notices provided for in this Agreement shall be given in writing and shall be
effective when either served by personal delivery, express overnight courier
service, electronic facsimile transmission, or by first class mail, postage
prepaid, addressed to the parties at their respective addresses herein set
forth, or to such other address or addresses as either party may later specify
by written notice to the other. This Agreement may be executed in duplicate
counterparts, which, when taken together, shall constitute one instrument and
each of which shall be deemed to be an original instrument.
8. Continuing Effect of Representations, Warranties and
Acknowledgments. The representations and warranties of the Investor contained in
Section 3 are true and accurate as of the date of this Subscription Agreement
and shall be true and accurate as of the date of delivery to and acceptance by
the Company, and shall survive such delivery and acceptance. If in any respect
such representations, warranties and acknowledgments shall not be true and
accurate prior to such delivery and acceptance, the undersigned Investor shall
give immediate written notice of such fact to the Company and to his purchaser
representative(s), if any, specifying which representations and warranties and
acknowledgments are not true and accurate and the reasons therefor.
IN WITNESS WHEREOF, the undersigned has hereby executed this Stock
Subscription Agreement as of this _____ day of _______________, 2002.
___________________________________________________________________
Signature of Xxxxxxxx Xxxxxx Xxxxxxx
___________________________________________________________________Print
Name of Investor City or Town
_______________________________
State Zip Code
___________________________________________________________________
Social Security Number Telephone Number
The Company hereby accepts the foregoing Subscription Agreement, subject
to the terms and conditions set forth herein, as of this _____ day of
_______________, 2002.
XXXXXXXX TECHNOLOGIES, INC.
By:_________________________________
Its:_________________________________
