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EXHIBIT 10.4
ADDITIONAL SHARE AGREEMENT
This Agreement is entered into as of the 29th day of November, 1996 by
and between JHFSC Acquisition Corp., a Delaware corporation (the "Company"), and
Xxxx Xxxxxxx Subsidiaries, Inc., a Delaware corporation ("Xxxxxxx").
WHEREAS, pursuant to a certain Contribution Agreement dated October 4,
1996 among Xxxxxxx, the Company and certain other parties (the "Contribution
Agreement") Xxxxxxx is acquiring 394,653.7 shares of the common stock, par value
$.01 per share, of the Company ("Common Stock"), representing 4.999% of the
issued and outstanding capital stock of the Company on the date hereof (the
"Shares");
WHEREAS, the Company intends to grant options or other rights to
purchase Common Stock of the Company to employees or directors of the Company
pursuant to any incentive share programs or other stock plans established during
the period commencing on the date hereof and ending two (2) years from the date
hereof (each, an "Incentive Share Program"); and
WHEREAS, the Company has agreed to protect Xxxxxxx from any dilution
which may occur as a result of the issuance by the Company of Incentive Shares
(as hereafter defined).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. ISSUANCE OF ADDITIONAL SHARES. In the event the Company issues any
Incentive Shares, the Company will, for no additional consideration, issue and
deliver to Xxxxxxx, a certificate in the name of Xxxxxxx representing that
number of shares of Common Stock equal to 4.999% of the Incentive Shares issued
(the "Additional Shares"). The term "Incentive Shares"
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shall mean any and all shares of Common Stock issued pursuant to an Incentive
Share Program up to an aggregate number of shares of Common Stock equal to
975,000, (which number shall be subject to adjustment for any stock split, stock
dividend or other form of recapitalization which occurs after the date hereof).
In no event shall Xxxxxxx have any right to receive Additional Shares pursuant
to this Agreement resulting from any issuance of shares of Common Stock pursuant
to an Incentive Share Program in excess of an aggregate of 975,000 shares of
Common Stock (which number shall be subject to adjustment for any stock split,
stock dividend or other form of recapitalization which occurs after the date
hereof).
2. INITIAL PUBLIC OFFERING. Upon the effective date of an initial
public offering of the Common Stock, the Company shall have the option to issue
to Xxxxxxx on such date the maximum number of Additional Shares to which Xxxxxxx
is entitled under Section 1 hereof (less any Additional Shares previously issued
to Xxxxxxx hereunder) regardless of whether the full number of Incentive Shares
have actually been issued under an Incentive Share Program (the "Accelerated
Additional Shares"). The Company shall have the right to repurchase the
Accelerated Additional Shares for a purchase price of $.01 per share to the
extent the Incentive Shares to which the Accelerated Additional Shares relate
are not ultimately issued under the Incentive Share Program.
3. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to Xxxxxxx that the Additional Shares, when issued and delivered in
accordance with the terms of this Agreement, will be duly and validly issued,
fully paid and nonassessable.
4. LEGENDS. The certificates representing the Additional Shares shall
bear the same legends as set forth on the certificate(s) representing the
Shares.
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5. INVESTMENT REPRESENTATION. The representations and warranties of
Xxxxxxx set forth in Section 3.06 of the Contribution Agreement shall be deemed
remade by Xxxxxxx to the Company as of the date of the issuance of the
Additional Shares (except to the extent such representations are inaccurate as a
result of the proposed sale of all or greater than a majority of the issued and
outstanding stock of the Company in a single transaction or a proposed sale
pursuant to a tag-along right or a public offering) and the Company shall be
entitled to rely on such representations and warranties in issuing and
delivering said Additional Shares.
6. COMMUNICATIONS. Any communications hereunder shall be deemed
sufficiently given if sent to the appropriate party in accordance with the terms
and at the addresses set forth in Section 13 of the Contribution Agreement.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
8. ENTIRE AGREEMENT; AMENDMENT. This Agreement represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof. The parties may amend or modify this Agreement only by
written instrument executed by each of the Company and Xxxxxxx.
9. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
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10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
be one in the same document.
JHFSC ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: President
XXXX XXXXXXX SUBSIDIARIES, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Treasurer
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