Exhibit 1.02
SUBSCRIPTION AGREEMENT
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XXX.xxx, Inc.
000 Xxxx Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, President and Chief Executive Officer
Gentlemen:
1. SUBSCRIPTION. Subject to the terms and conditions hereof, the
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undersigned hereby irrevocably subscribes for and agrees to purchase _____
shares (the "Shares") of the common stock, $.0005 par value (the "Common
Stock"), of XXX.xxx, Inc. (the "Company") at a price of $___ per share, and an
aggregate purchase price of $________ (the "Purchase Price").
2. CLOSING. The closing shall take place at the offices of Xxxxx, Xxxxxxx
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& Xxxxxxxxx, High Street Tower, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, at
10:00 a.m., Boston time, on ______, 1999, or at such other location, date and
time as may be agreed upon between the undersigned and the Company (such closing
being called the "Closing" and such date and time being called the "Closing
Date"); provided, however, that notwithstanding anything to the contrary herein,
the undersigned shall have no obligation to purchase the Shares unless the
Closing shall occur simultaneously with the closing of the purchase and sale of
the Firm Shares (as defined in the Underwriting Agreement) pursuant to the
Underwriting Agreement dated _________, 1999 by and among the Company and
Deutsche Bank Securities Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, Xxxxxx Brothers Inc. and DLJdirect Inc. (the "Underwriting
Agreement"). At the Closing, the Company shall issue or have issued and deliver
to the undersigned a stock certificate or certificates in definitive form,
registered in the name of the undersigned, representing the Shares. As payment
in full for the Shares, and against delivery of the stock certificate or
certificates therefor as aforesaid, on the Closing Date, the undersigned shall
transfer the Purchase Price of the Shares to the account of the Company by wire
transfer.
3. REPRESENTATIONS AND ACKNOWLEDGEMENTS OF THE UNDERSIGNED.
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3.1. AUTHORITY: The undersigned represents and warrants to the
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Company that the execution, delivery and performance of this Agreement, and
the consummation of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action. This Agreement has been duly
executed and delivered by the undersigned and constitutes a valid and
binding obligation of the undersigned enforceable in accordance with its
terms.
3.2. ACKNOWLEDGEMENT: The undersigned hereby acknowledges that it
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has received and reviewed the preliminary prospectus of the Company dated
September 7, 1999.
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4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
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and warrants to the undersigned as follows:
4.1. ORGANIZATION AND STANDING: The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the
State of Delaware and has full corporate power and authority to conduct its
business as presently conducted and as proposed to be conducted.
4.2. ISSUANCE OF SHARES: The issuance, sale and delivery of the
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Shares in accordance with this Agreement, have been duly authorized by all
necessary corporate action on the part of the Company, and all such shares
have been duly reserved for issuance.
4.3. AUTHORITY FOR AGREEMENT: The execution, delivery and performance
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by the Company of this Agreement, and the consummation by the Company of
the transactions contemplated hereby, have been duly authorized by all
necessary corporate action. This Agreement has been duly executed and
delivered by the Company and constitutes a valid and binding obligation of
the Company enforceable in accordance with its terms.
4.4. REGISTRATION ON FORM S-1: The Shares have been registered on the
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Company's Registration Statement on Form S-1 (File No. 333-80141) filed on
June 7, 1999, as amended.
5. MISCELLANEOUS.
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5.1. NOTICES: All notices or other communications given or made
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hereunder shall be 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, to the undersigned at
the address set forth below or to the Company at the address set forth
above.
5.2. GOVERNING LAW: This Agreement shall be governed by and
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construed in accordance with the internal laws of the State of Delaware.
5.3. ENTIRE AGREEMENT: This Agreement constitutes the entire
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agreement between the parties with respect to the subject matter hereof and
may be amended or superseded only by a writing executed by the parties.
6. CONTINUING EFFECTING OF REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS.
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The representations and warranties of Sections 3 and 4 are true and accurate as
of the date of this Agreement and shall be true and accurate as of the Closing
Date, and shall survive delivery and acceptance of the Shares. If in any
respect such representations, warranties and acknowledgments shall not be true
and accurate at the Closing Date, such party
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shall give immediate written notice of such fact to the other party, specifying
which representations and warranties and acknowledgments are not true and
accurate.
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IN WITNESS WHEREOF, the undersigned has hereby executed this Agreement this
________ day of ______, 1999.
STAPLES, INC.
By:
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Title:
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The Company hereby accepts the foregoing subscription subject to the terms and
conditions set forth herein as of the ________ day of _______, 1999.
XXX.XXX, INC.
By:
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Title:
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