Exhibit 4.4
XXXXXXX RIVER ASSOCIATES INCORPORATED
October 18, 2000
Xxxxxx X. Xxxxxxx
[ADDRESS]
RE: Stock Purchase Agreement
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Dear Xx. Xxxxxxx:
We are pleased that you are interested in purchasing shares of the Common
Stock, no par value ("Shares") of Xxxxxxx River Associates Incorporated, a
Massachusetts corporation (the "Company"). The terms on which the Company is
willing to issue Shares to you, and our agreements regarding such Shares are as
follows:
1. PURCHASE OF SHARES. In consideration of payment to the Company of
$2,000,000, the Company hereby sells and issues to you, and you hereby purchase
from the Company 180,383 Shares. Upon execution of this Agreement, the Company
will deliver to you a certificate registered in your name representing 180,383
Shares.
2. YOUR REPRESENTATIONS AND WARRANTIES. To induce the Company to issue
the Shares to you, you hereby represent, warrant and agree as follows:
2.1 EXPERIENCE, FINANCIAL CAPABILITY AND SUITABILITY. You are
sufficiently experienced in financial and business matters to be capable of
evaluating the risk of this investment and to make an informed decision relating
thereto. You have the financial capability for making the investment, can afford
a complete loss of the investment, and the investment is a suitable one for you.
You understand that the purchase of the Shares involves a high degree of risk
and there may never be an established market for the Company's capital stock.
The Company's activities will require substantial funds which may not be
available. For this and other reasons, the Company's prospects are highly
speculative. Accordingly, you acknowledge that you may lose your entire
investment in the Company.
2.2 ACCESS TO INFORMATION. Prior to the execution of this
Agreement, you have had the opportunity to ask questions of and receive answers
from representatives of the Company
concerning the finances, operations, business and prospects of the Company and
the opportunity to obtain additional information to verify the accuracy of all
information so obtained.
2.3 INVESTMENT INTENT. You are acquiring the Shares for your own
account for the purpose of investment and not with a view to, or for sale in
connection with, the distribution thereof, nor with any present intention of
distributing or selling the Shares. The Shares are not being registered under
the Securities Act of 1933 as amended (the "Securities Act") and are not being
registered under any state "blue sky" laws, and the Shares may not be
transferred except in compliance with such laws.
2.4 ACCREDITED INVESTOR. You are an "accredited investor" as
such term is defined in Rule 501 of Regulation D promulgated by the Securities
Exchange Commission pursuant to the Securities Act.
3. RESTRICTIONS ON TRANSFER.
3.1 SECURITIES LAW RESTRICTIONS. You agree with the Company that
the Shares shall not be pledged, hypothecated, sold or transferred, unless prior
to the proposed pledge, hypothecation, sale or transfer of all or part of such
Shares (a) a Registration Statement on the appropriate form under the Securities
Act and applicable state securities laws with respect to the Shares proposed to
be transferred shall then be effective; or (b) the Company shall have received
an opinion of counsel in form and substance satisfactory to it that such
registration is not required because such transaction complies with rules
promulgated by the Securities and Exchange Commission under the Securities Act
and with applicable state securities laws.
You understand that the Shares are "restricted securities" as that
term is defined in Rule 144 under the Securities Act and that the Shares must be
held indefinitely unless they are subsequently registered under the Securities
Act or an exemption from such registration is available; and that in the case of
sales in which Rule 144 is not available, compliance with Regulation A under the
Securities Act or some other exemption under the Securities Act will be
required. You understand that there may not be available at the time you wish to
sell your Shares the adequate current public information with respect to the
Company which would permit offers or sales of the Shares under Rule 144. Except
as provided below, the Company has no present intention and is under no
obligation to register the Shares under the Securities Act or any state
securities law, nor to make Rule 144 available.
3.2 LEGENDING OF SHARES. All certificates representing the
Shares to be issued to you pursuant to this Agreement shall have endorsed
thereon legends substantially as follows:
"The securities represented by this certificate have not
been registered under the Securities Act of 1933, as amended
(the "Act") or any state securities law and may not be sold,
pledged, hypothecated or transferred in the absence of an
effective registration statement covering these securities
under the Act and any applicable state securities laws or an
opinion of counsel in form and substance satisfactory to the
Company that
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registration is not required under the Act or under
applicable state securities laws."
3.3 RIGHT OF FIRST PURCHASE. The Company shall have a right of
first purchase with respect to any Shares you wish to sell (assuming the terms
of Sections 3 and 4 of this Agreement have been satisfied). You shall provide
the company with written notice of your desire to sell such shares, and the
Company shall have the right for a period of 10 business days following receipt
of your notice, to purchase such Shares from you. The per share purchase price
for such sale shall be equal to the average closing price for the Company's
common stock for the ten trading days prior to the Company's receipt of your
notice. If the Company exercises its Right of First Purchase, the purchase and
sale of such Shares shall occur within 10 business days following such exercise.
In the event that the Company fails to exercise its right of first purchase
within such ten-day period, you shall be entitled to sell such Shares at any
time during the subsequent 90 day period. If you do not make such a sale within
such 90-day period, you must again comply with this Section 3.3 prior to any
subsequent sale.
4. STOCK PLEDGE. As security for the due and punctual payment by you
when due of any amounts payable by you under that certain $2,000,000
Non-Negotiable Promissory Note of even date herewith issued by you to the
Company (the "Note'), you hereby pledge, assign, transfer and grant to the
Company a security interest in the Shares. In the event that your payment
obligations under the Note become due, you may satisfy such obligations in whole
or in part by selling to the Company any Shares securing such obligations that
you continue to own at that time for a per share price equal to the average
closing price for the Company's common stock for the ten trading days prior to
the date such obligations become due; provided, however, that in the event that
the proceeds from such sale are less than the amount of your payment
obligations, you shall remain liable on a full recourse basis for the
difference. Notwithstanding the foregoing, the Company shall have no obligation
to purchase any Shares from you where such purchase would necessitate disclosure
under the federal securities laws or adversely affect the Company's accounting
treatment of the transactions contemplated by that certain Asset Purchase
Agreement between you and the Company. As security for the pledge granted
herein, you agree that the Company shall hold the certificate evidencing the
Shares (together with stock power executed by you in blank) until such time as
the payment obligation under the Note is satisfied.
5. "PIGGYBACK" REGISTRATION RIGHTS. If, on or before the fifth
anniversary of this Agreement, the Company chooses to register any of its
securities under the Securities Act for sale to the public, whether for its own
account or for the account of other security holders or both (except with
respect to registration statements on Forms X-0, X-0 or another form not
available for registering the Shares for sale to the public), the Company will
use its best efforts to cause the Shares to be included in the securities to be
covered by the registration statement proposed to be filed by the Company. In
the event that any registration pursuant to this Section 5 shall be, in whole or
in part, an underwritten public offering, the number of Shares to be included in
such an underwriting may be reduced if and to the extent that the managing
underwriter shall be of the opinion that such inclusion would adversely affect
the marketing of the securities to be sold by the Company therein.
Notwithstanding the foregoing provisions, the Company may withdraw
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any registration statement referred to in this Section 5 without thereby
incurring any liability to you. The Company represents that as of the date of
this Agreement, no third party has demand registration rights with respect to
the Company's Common Stock. If all shares of shareholders exercising piggyback
registration rights cannot be accommodated in any such offering, the shares of
all such shareholders shall be proportionately reduced (based on their relative
number of shares they desire to include in such piggyback registration).
6. OTHER AGREEMENTS.
6.1 FURTHER ASSURANCES. You agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
6.2 NO OBLIGATION AS TO EMPLOYMENT. The Company is not by reason
of this Agreement obligated to employ or retain, or continue to employ or
retain, you in any capacity.
6.3 NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth above or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telex, telecopy or facsimile transmission, (iii) sent by overnight
courier, or (iv) sent by registered mail, return receipt requested, postage
prepaid. All notices, requests, consents and other communications hereunder
shall be deemed to have been given either (i) if by hand, at the time of the
delivery thereof to the receiving party at the address of such party set forth
above, (ii) if made by telex, telecopy or facsimile transmission, at the time
that receipt thereof has been acknowledged by electronic confirmation or
otherwise, (iii) if sent by overnight courier, on the next business day
following the day such notice is delivered to the courier service, or (iv) if
sent by registered mail, on the 5th business day following the day such mailing
is made.
6.4 ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly set
forth in this Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
6.5 MODIFICATIONS AND AMENDMENTS. The terms and provisions of
this Agreement may be modified or amended only by written agreement executed by
all parties hereto.
6.6 WAIVERS AND CONSENTS. The terms and provisions of this
Agreement may be waived, or consent for the departure therefrom granted, only by
written document executed by the party entitled to the benefits of such terms or
provisions. No such waiver or consent shall be deemed to be or shall constitute
a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in
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the specific instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.
6.7 ASSIGNMENT. The rights and obligations under this Agreement
may not be assigned by either party hereto without the prior written consent of
the other party.
6.8 BENEFIT. All statements, representations, warranties,
covenants and agreements in this Agreement shall be binding on the parties
hereto and shall inure to the benefit of the respective successors and permitted
assigns of each party hereto. Nothing in this Agreement shall be construed to
create any rights or obligations except among the parties hereto, and no person
or entity shall be regarded as a third-party beneficiary of this Agreement.
6.9 GOVERNING LAW. This Agreement and the rights and obligations
of the parties hereunder shall be construed in accordance with and governed by
the law of the Commonwealth of Massachusetts without giving effect to the
conflict of law principles thereof.
6.10 SEVERABILITY. In the event that any court of competent
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement shall be unreasonable or unenforceable in any
respect, then such provision shall be deemed limited to the extent that such
court deems it reasonable and enforceable, and as so limited shall remain in
full force and effect. In the event that such court shall deem any such
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall nevertheless remain in full force and effect.
6.11 HEADINGS AND CAPTIONS. The headings and captions of the
various subdivisions of this Agreement are for convenience of reference only and
shall in no way modify, or affect the meaning or construction of any of the
terms or provisions hereof.
6.12 NO WAIVER OF RIGHTS, POWERS AND REMEDIES. No failure or
delay by a party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto, shall operate as
a waiver of any such right, power or remedy under this Agreement by a party
hereto, nor any abandonment or discontinuance of steps to enforce any such
right, power or remedy, shall preclude such party from any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
The election of any remedy by a party hereto shall not constitute a waiver of
the right of such party to pursue other available remedies. No notice to or
demand on a party not expressly required under this Agreement shall entitle the
party receiving such notice or demand to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
party giving such notice or demand to any other or further action in any
circumstances without such notice or demand.
6.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by the parties hereto in this Agreement or
in any other agreement, certificate or instrument provided for or contemplated
hereby, shall survive the execution and delivery hereof and any investigations
made by or on behalf of the parties.
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6.14 NO BROKER OR FINDER. Each of the parties hereto represents
and warrants to the other that no broker, finder or other financial consultant
has acted on its behalf in connection with this Agreement or the transactions
contemplated hereby in such a way as to create any liability on the other. Each
of the parties hereto agrees to indemnify and save the other harmless from any
claim or demand for commission or other compensation by any broker, finder,
financial consultant or similar agent claiming to have been employed by or on
behalf of such party and to bear the cost of legal expenses incurred in
defending against any such claim.
6.15 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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If the foregoing accurately sets forth your understanding and agreement,
please sign the enclosed copy of this agreement and return it to us.
Very truly yours,
XXXXXXX RIVER ASSOCIATES INCORPORATED
By: /s/ J. Xxxxxxx Xxxxxx
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J. Xxxxxxx Xxxxxx
Vice President
Accepted and agreed this
18th day of October, 2000
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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