EXHIBIT 10.22
FORM OF
SUBSCRIPTION AGREEMENT
THIS AGREEMENT is made as of this ____ day of May, 1999, by and
between X0Xxxx.xxx, Inc., a corporation incorporated under the laws of the State
of Delaware ("Company"), and _________ (the "Subscriber") with reference to the
following Recitals:
A. The Company was incorporated on February 9, 1999, under the laws
of the State of Delaware.
B. The Company has authority to issue 10,000,000 shares of the Common
Stock, $.01 par value.
C. At the date hereof, the Company has issued less than 10,000,000
shares of its capital stock.
D. The Company and Subscriber have previously agreed to the stock
purchase described herein to be effectively issued as of May 7, 1999, and this
Agreement memorializes this prior oral agreement.
E. The Subscriber desires to purchase ________ shares of the Common
Stock of the Company on the terms hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. The Subscriber hereby subscribes for and agrees to purchase from
the Company at the price of $.01 per share, ________ shares of the Common Stock,
$.01 par value, of the Company (the "SHARES"). The Subscriber understands,
however, that this subscription shall not be binding until countersigned by the
Company.
2. The payment for the shares shall be made in cash or promissory
note upon receipt of a certificate or certificates evidencing issue to the
Subscriber of the appropriate number of fully-paid and non-assessable shares of
the Company.
3. In connection with the purchase and sale of the Shares hereunder,
Subscriber represents and warrants to the Company that:
(a) The Shares to be acquired by Subscriber pursuant to this Agreement
will be acquired for Subscriber's own account and not with a view to, or
intention of, distribution thereof in violation of the Securities Act of 1933,
as amended (the "SECURITIES ACT"), or any applicable state securities laws, and
none of the Shares will be disposed of in contravention of the Securities Act or
any applicable state securities laws.
(b) Subscriber is an accredited investor, as such term is defined in
Rule 501 of Regulation D promulgated under the Securities Act, and Subscriber is
able to evaluate the risks and benefits of the investment in the Shares; if
Subscriber is not an accredited investor as defined above, Subscriber hereby
appoints Xxxxxxxx X. Xxxxxxx as Subscriber's purchaser's representative in
connection with Subscriber's receipt of the Shares hereunder.
(c) Subscriber is able to bear the economic risk of such Subscriber's
investment in the Stock for an indefinite period of time because the Shares have
not been registered under the Securities Act and, therefore, cannot be sold
unless subsequently registered under the Securities Act or an exemption from
such registration is available.
(d) Subscriber has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the offering of Shares and has
had full access to such other information concerning the Company as such
Subscriber has requested.
(e) This Agreement constitutes the legal, valid and binding obligation
of Subscriber, enforceable in accordance with its terms, and the execution,
delivery and performance of this Agreement and such other agreements by
Subscriber does not and, to the knowledge of Subscriber, will not conflict with,
violate or cause a breach of any agreement, contract or instrument to which
Subscriber is a party (including, but not limited to, any agreement referred to
in subparagraph 3(f) below) or any judgment, order or decree to which Subscriber
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is subject and Subscriber further represents and warrants that Subscriber is not
now in breach of any such agreement, contract or instrument to which Subscriber
is a party.
(f) Subscriber is not a party to or bound by any employment agreement,
noncompete agreement or confidentiality agreement that would be breached by
Subscriber's relationship with the Company or any subsidiary of the Company.
(g) Subscriber acknowledges that the Company has provided to
Subscriber adequate disclosure materials (related to the Company) for purposes
of Subscriber's investment in the Common Stock.
4. The Subscriber hereby agrees that certificates representing the
Shares may bear the following legend:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH
SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SHARES UNDER THE SECURITIES ACT OF 1933, UNLESS, IN THE
OPINION (WHICH SHALL BE IN FORM AND SUBSTANCE
SATISFACTORY TO THE CORPORATION) OF COUNSEL SATISFACTORY
TO THE CORPORATION, SUCH REGISTRATION IS NOT REQUIRED.
5. The Subscriber agrees to hold harmless and indemnify the Company
for any and all liabilities resulting to it through violation by the undersigned
of the above representations.
6. The Subscriber agrees that this Subscription Agreement is binding
on the undersigned's heirs, executors and assigns.
7. Simultaneously with the execution of this Subscription Agreement,
the Subscriber agrees to enter into the Stockholders Agreement attached hereto
as Annex I.
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8. This Subscription Agreement shall be governed by the laws of the
State of Delaware applicable to agreements made and entirely to be performed
within such jurisdiction.
9. This Subscription Agreement may be signed in counterparts and
shall be binding on a party if transmitted to the other party by facsimile.
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IN WITNESS WHEREOF, the parties have executed this agreement as of the
date first above written.
COMPANY
By:___________________________________
Xxxxxx X. Xxxxxx
Senior Vice President
SUBSCRIBER
____________________________________
Name:_______________________________
Address:____________________________
____________________________
____________________________
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