Exhibit 4.2 Form of Subscription Agreement
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SUBSCRIPTION AGREEMENT
XIOM CORP.
a Delaware corporation.
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The undersigned (sometimes referred to herein as "Subscriber") hereby
subscribes to purchase the number of shares of Common Stock (the "Shares") of
XIOM CORP., a Delaware Corporation (the "Company") indicated below in accordance
with the terms and conditions of the Confidential Private Offering Memorandum
and any future supplement thereto (the "Memorandum"). The undersigned
understands that, if accepted, its subscription is irrevocable, but that it may
be rejected in the sole discretion of the Company, for any reason.
In consideration for the acceptance by the Company of this Subscription
Agreement, the Subscriber hereby agrees, represents and warrants as follows:
1. Acceptance or Rejection of Subscription. The Company shall have the
right to accept or reject this subscription in whole or in part. If rejected,
the Subscriber's check and Subscription Documents (as defined below) shall be
promptly returned to the Subscriber. If accepted, the Subscriber's check will be
forwarded directly to the Company, and the Subscriber's Investor Questionnaire
and Subscription Agreement (collectively referred to herein as the "Subscription
Documents") will be retained by the Company.
2. Closing. If the Company has not received and accepted subscriptions and
the closing date is not extended in the sole discretion of the Company for up to
an additional ninety (90) days (the "Closing Date"), the Offering will terminate
and any unaccepted investments in the possession of the Company and Subscription
Documents shall be promptly returned to the Subscriber.
3. Agreement to Indemnify. The Subscriber hereby agrees to indemnify and
hold harmless the Company and all of its directors, officers, agents and
employees from any and all damages, losses, costs and expenses (including
reasonable attorneys' fees) which they may incur (I) by reason of the
Subscriber's failure to fulfill any of the terms and conditions of this
Agreement, (ii) by reason of the Subscriber's breach of any of the Subscriber's
representations, warranties or agreements contained herein or in the Investor
Questionnaire, and (iii) with respect to any and all claims made by or involving
any person, other than the Subscriber, claiming any interest, right, title,
power or authority regarding the Subscriber's purchase of Shares. The Subscriber
further agrees and acknowledges that this indemnification agreement shall
survive any sale or transfer, or attempted sale or transfer, of any portion of
the Subscriber's Shares or upon the Subscriber's death.
4. Representations, Warranties and Covenants. The Subscriber hereby
represents, warrants, and covenants that:
(i) Subscriber acknowledges that the Shares have not been registered
under the Securities Act with the Securities and Exchange Commission, nor have
the Shares been registered or qualified for sale under the laws of any other
jurisdiction (either within or outside of the United States) and the Company has
no obligations hereunder or any current intention to effect any such
registration or qualification.
(ii) Subscriber (a) has received a copy of the Memorandum and has
carefully reviewed and understands the Memorandum and (b) understands that,
except as set forth in the Memorandum or unless made to investor in writing, no
representations or warranties have been made to the Subscriber by the Company or
any of its officers directors, employees, agents or affiliates, and (c) agrees
that, in connection with the purchase of the Shares, it is not relying upon any
information concerning the Company, other than (i) that contained in this
Memorandum and (ii) on the results of its own independent investigation.
(iii) Subscriber understands that (a) no governmental authority has
passed upon the accuracy or completeness of the Memorandum or has made any
finding or determination concerning the appropriateness or suitability of an
investment in the Shares and (b) no governmental authority has recommended or
endorsed, or will recommend or endorse, an investment in the Shares.
(iv) Subscriber is acquiring the Shares for Subscriber's own account
and not for the account of others and for investment purposes only and not with
a view to or for the sale, offer for sale, transfer, assignment, resale or
distribution thereof, in whole or in part.
(v) All subsequent offers and sales of the Shares by Subscriber
shall be made in compliance with the Securities Act, pursuant to registration
under the Securities Act or pursuant to an exemption from such registration.
(vi) Subscriber understands that the Shares are being offered and
sold to it in reliance on specific exemptions from the registration requirements
of U.S. federal and state securities laws and that the Company is relying upon
the truth and accuracy of the representations, warranties, agreements
acknowledgments and understandings of Subscriber set forth in the Subscription
Agreement and Investor Questionnaire in order to determine the applicability of
such exemptions and the suitability of Subscriber to acquire the Shares.
(vii) Subscriber has adequate net worth and means of providing for
his current needs and personal contingencies to sustain a complete loss of his
investment in the Shares and has no need for liquidity in this investment.
(viii) The Company has made available to Subscriber, its counsel and
advisors, if any, the opportunity to ask questions of, and receive answers from
the Company and its representatives, concerning the terms and conditions of an
investment in the Shares, and has given it access to any requested information,
documents, financial statements, books and records relative to the Company and
an investment in the Shares.
(ix) If the Subscriber is a corporation, it is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and if the Subscriber is a partnership or other organization, it
is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization.
(x) (a) If the Subscriber is a corporation, the execution, delivery
and performance of this Agreement have been duly authorized by all necessary
corporate action, (b) if the Subscriber is a partnership or other organization,
the other governing documents to enter into this Agreement and to consummate the
transactions contemplated hereby and all necessary consents and approvals
required by the partnership agreement or other governing documents have been
obtained, and (c) for both corporations and partnerships, this Agreement
constitutes a legal, valid and binding obligation of the Subscriber, enforceable
against the Subscriber in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
generally.
(xi) Subscriber is aware that investing in the Shares is speculative
and involves a high degree of risk and that any right to transfer its Shares in
the Company is limited and restricted by law, and this Subscription Agreement.
(xii) Subscriber has evaluated the risks of investing in the Shares
and has substantial experience in making investment decisions of this type or is
relying on his advisors or Purchase Representative, if applicable, in making
this investment decision.
(xiii) Subscriber understands that a legend may be placed on any
certificate representing the Shares substantially as follows:
"The shares represented by this certificate have not been registered under
the Securities Act of 1933. These shares have been acquired for investment and
not for distribution or resale. They may not be mortgaged, pledged,
hypothecated, or otherwise transferred without an effective registration
statement for such shares under the Securities Act of 1933 or an opinion of
counsel for the corporation that registration is not required under such Act."
The foregoing representations, warranties, and covenants and all other
information which the Subscriber has provided to the Company concerning the
Subscriber and the Subscriber's financial condition (or concerning the entity or
organization which the subscriber represents and its financial condition) are
true and accurate as of the date hereof.
5. Subscription Agreement Binding on Heirs, Etc. This Subscription
Agreement shall be binding upon the Subscriber's heirs, successors estate, legal
representatives and assigns, and shall be construed in accordance with the laws
of the State of New York.
6. Execution Authorized. If this Subscription Agreement and the other
relevant Subscription Documents are executed on behalf of a corporation,
partnership, trust or other entity, the Subscriber has been duly authorized and
empowered legally to represent such entity and to execute this Subscription
Agreement and such Subscription Documents and all other instruments in
connection with the purchase of the Shares, and the Subscriber's signature is
binding upon such entity.
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7. Legal Representation/Conflict of Interest. The Subscriber, by executing
this Subscription Agreement acknowledges, represents and agrees that (a) the
Company has retained legal counsel to represent it in connection with the
preparation of this Subscription Agreement and the Memorandum; (b) such legal
counsel has prepared such documents with a view to the interests of the Company
only and has not undertaken to represent the interest of the Subscriber and that
no attorney-client relationship or fiduciary duty exists between such legal
counsel and the Subscriber, notwithstanding that the Subscriber's investment may
pay, directly or indirectly, for such legal services; (c) the Subscriber has
been advised to have such legal documents reviewed by the Subscriber's own
independent attorney and/or other advisors; and (d) the services performed by
such legal counsel have been limited to the preparation of such documentation at
the request and direction of the Company and such legal counsel has not
undertaken to conduct any investigation whatsoever concerning the facts, risks
or circumstances concerning or relating to the investment and/or the background
or financial qualifications of the Company.
8. Governing Law, and Venue. This Agreement shall be construed in
accordance with, and governed by, the laws of the State of New York with venue
proper in New York.
9. Definition of Terms. The terms used herein, if not otherwise defined
herein, shall have the meanings attributed to such terms in the Memorandum. All
pronouns and any variations thereof used herein shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as the identity of the person or
persons herein may require.
10. Number of Shares. The undersigned hereby subscribes for Units as
follows: ________ $1.30 per share an warrant to purchase another share at $1.30
per share
All checks should be made payable to: "XIOM CORP."
11. Taxpayer Identification Number Certification.
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Social Security or Tax I.D. No. Social Security or Tax I.D. No.
I declare that the number shown in this Subscription Agreement is my
correct taxpayer identification number and/or social security number (or I am
waiting for a number to be issued to me), that I have read and understood the
foregoing documents, and that I desire to purchase the shares herein under the
terms set forth in this Subscription Agreement.
Signature _________________________ Signature ___________________________
Date _____________________________ Date ______________________________
TYPE OF OWNERSHIP (Check one)
|_| INDIVIDUAL INDIVIDUAL OWNERSHIP |_| COMMUNITY PROPERTY
(One signature required) (one signature required if interest held
in one name, i.e., managing spouse; two
signatures required if interest held in
both names)
|_| JOINT TENANTS WITH RIGHT OF |_| CORPORATION
SURVIVORSHIP (Please include certified Corporate
(both or all parties must sign) Resolution authorizing signature)
|_| PARTNERSHIP |_| TRUST
(Please include a copy of the (Please include a copy of the Trust
Statement of Partnership Agreement Agreement)
authorizing signature)
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[Please print above the exact name(s) in which the Convertible is to be held]
IN WITNESS WHEREOF, the undersigned has executed this Subscription Agreement
this _____ day of ________________, 2006.
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Subscriber #1 Signature Subscriber #2 Signature
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Subscriber #1 Print or Type Name and Subscriber #2 Print or Type Name and
Title (if applicable) Title (if applicable)
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Telephone Number Telephone Number
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City State Zip City State Zip
SUBSCRIPTION ACCEPTED:
XIOM CORP.
By:
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Authorized Officer
Dated:
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