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Exhibit 10.41
SUBSCRIPTION AGREEMENT, dated as of September 9, 1997, between
Bar Technologies Inc., a Delaware corporation (the "COMPANY"), and each of the
parties named on the signature pages hereto (the "INVESTORS").
WHEREAS, on the terms and subject to the conditions hereof,
each of the Investors desires to subscribe for and acquire from the Company, and
the Company desires to issue and sell to each of the Investors, the number of
shares of Non-voting Class C Common Stock, par value $.001 per share (the
"COMMON STOCK"), of the Company set forth opposite its name on the signature
pages hereto, as hereinafter set forth.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
"AGREEMENT" shall mean this Subscription Agreement, as the
same may be amended from time to time.
"CREDIT AGREEMENT" shall mean the senior revolving credit
agreement dated as of April 2, 1996 among the Company, Bliss & Xxxxxxxx
Industries, Inc., Chemical Bank, as Administrative Agent and Collateral Agent,
and the lenders named therein.
"PERSON" shall mean any individual, corporation, partnership,
trust, joint stock company, business trust, unincorporated association, joint
venture, governmental authority or other entity of any nature whatsoever.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and all rules and regulations promulgated thereunder, as the same may
be amended from time to time.
"STOCKHOLDERS AGREEMENT" shall mean the Stockholders'
Agreement dated as of April 2, 1996, and as amended and restated as of September
9, 1997, by and among the Company and all of the stockholders of the Company
(including the Investors).
2. Subscription for and Purchase of Common Stock.
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2.1. PURCHASE OF COMMON STOCK. On the terms and subject to the
conditions set forth in this Agreement, each of the Investors hereby subscribes
for and agrees to purchase, and the Company hereby agrees to issue and sell to
each of the Investors, on the Closing Date the number of shares of Common Stock
set forth opposite its name on the signature pages hereto at the purchase price
set forth opposite its name on the signature pages hereto (the aggregate
purchase prices referred to above for each Investor are collectively referred to
herein as the "PURCHASE PRICE").
2.2. THE CLOSING. The closing (the "CLOSING") of the sale of
the Common Stock pursuant to this Agreement shall take place on such date (the
"CLOSING DATE") and at such
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time as the Company shall direct on at least two business days' prior notice to
each of the Investors. The Closing shall occur at the offices of Xxxxxxx Xxxxxxx
& Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as the parties may agree. At the Closing, the Company will deliver to each
of the Investors duly executed stock certificates, each registered in such
Investor's name, representing the shares of Common Stock to be purchased by such
Investor against payment by such Investor of the Purchase Price therefor by
delivery to the Company of immediately available funds in the amount of the
Purchase Price therefor, representing payment by such Investor in full for its
Common Stock.
3. Representations and Warranties.
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3.1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each of the Investors as follows:
(a) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
the corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery by the Company of
this Agreement and the performance by it of its obligations hereunder have been
duly authorized by all necessary corporate action of the Company. This Agreement
has been duly executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by such Investor, constitutes the
valid and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law).
(b) The Common Stock to be issued to such Investor pursuant to
this Agreement, when issued and delivered in accordance with the terms hereof,
will be duly authorized, validly issued, fully paid and nonassessable with no
personal liability attached to the ownership thereof, and such Investor will
receive valid and good title to the shares of Common Stock issued to it, free
and clear of any lien, pledge, adverse claim or encumbrance (except any that may
have been created by such Investor).
(c) The execution, delivery and performance by the Company of
this Agreement will not (i) conflict with the certificate of incorporation or
by-laws of the Company, (ii) result in any breach of any terms or provisions of,
or constitute a default under, any material contract, agreement or instrument to
which the Company is a party or by which the Company is bound, (iii) violate any
judgment, injunction, order or decree or United States federal or state law,
rule or regulation applicable to the Company or (iv) require any action by or
filing with any governmental body, agency or official other than those taken or
made prior to the Closing.
(d) No form of general advertising or general solicitation was
or will be used by the Company or any of its affiliates in connection with the
offer and sale of shares of Common Stock to be issued on the Closing Date. The
Company agrees that neither it nor any of its affiliates nor any Person acting
on its behalf will sell or offer for sale any Common Stock or otherwise approach
or negotiate in respect thereof with, any Person so as thereby to bring the
issuance, sale or exchange of the Common Stock on the Closing Date within the
provisions of
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Section 5 of the Securities Act.
3.2. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. Each
Investor hereby represents and warrants to the Company, severally and not
jointly, as follows:
(a) The execution and delivery by such Investor of this
Agreement and the performance by it of its obligations hereunder have been duly
authorized by all necessary action of such Investor. This Agreement has been
duly executed and delivered by such Investor and, assuming the due
authorization, execution and delivery thereof by the Company, constitutes the
valid and legally binding obligation of such Investor, enforceable against such
Investor in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, by general equitable principles (whether considered
in a proceeding in equity or at law).
(b) The execution, delivery and performance of this Agreement
by such Investor will not (i) conflict with the certificate of incorporation or
by-laws or other governing documents of such Investor, (ii) result in any breach
of any terms or provisions of, or constitute a default under, any material
contract, agreement or instrument to which such Investor is a party or by which
such Investor is bound, (iii) violate any judgment, injunction, order or decree
or United States federal or state law, rule or regulation applicable to such
Investor or (iv) require any action by or filing with any governmental body,
agency or official other than those taken or made prior to the Closing.
(c) Such Investor is an "accredited investor" as that term is
defined in Rule 501 of Regulation D under the Securities Act and is acquiring
the Common Stock for investment solely for its own account and not with a view
to, or for resale in connection with, the distribution or other disposition
thereof.
4. COMMON STOCK UNREGISTERED. Each of the Investors acknowledges and represents
that it has been advised by the Company that:
(a) The issuances of Common Stock have not been and will not
be registered under the Securities Act;
(b) The Common Stock may be required to be held indefinitely
and such Investor may be required to continue to bear the economic risk of its
investment in the Common Stock unless the offer and sale of such Common Stock is
subsequently registered under the Securities Act and all applicable state
securities laws or an exemption from such registration is available;
(c) There is no established market for Common Stock and it is
not anticipated that there will be any public market for Common Stock in the
foreseeable future;
(d) Rule 144 promulgated under the Securities Act is not
presently available with respect to the sale of any securities of the Company;
(e) When and if shares of Common Stock may be disposed of
without registration under the Securities Act in reliance on Rule 144, such
disposition can be made only in limited amounts in accordance with the terms and
conditions of such Rule;
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(f) If a Rule 144 exemption is not available, public offer or
sale of Common Stock without registration will require compliance with some
other exemption under the Securities Act;
(g) A notation shall be made in the appropriate records of the
Company indicating that the Common Stock are subject to restrictions on transfer
and, if the Company should at some time in the future engage the services of a
securities transfer agent, appropriate stop-transfer instructions will be issued
to such transfer agent with respect to the Common Stock.
5. Conditions Precedent.
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5.1. CONDITIONS TO THE INVESTORS' OBLIGATIONS. The obligation
of each of the Investors to consummate the transactions contemplated by this
Agreement is subject to the fulfillment at or prior to the Closing of the
following conditions:
(a) The representations and warranties contained in Section
3.1 hereof shall be correct and complete in all material respects as of the
Closing Date to the same extent as though made on and as of such date; and the
Company shall have performed all agreements and satisfied all conditions
contained herein which are required to be performed or complied with by the
Company on or prior to the Closing Date.
(b) No preliminary or permanent injunction or other order
issued by any federal or state court of competent jurisdiction in the United
States or by any United States federal or state governmental or regulatory body
nor any statute, rule, regulation or executive order promulgated or enacted by
any United States federal or state governmental authority which restrains,
enjoins or otherwise prohibits the transactions contemplated hereby shall be in
effect.
(c) All consents, exemptions, authorizations or other actions
by, or notices to, or filings with, governmental authorities and other persons,
including with respect to contractual obligations of the Company, necessary or
required in connection with the execution, delivery or performance by the
Company or enforcement against the Company of this Agreement shall have been
obtained and be in full force and effect.
(d) the Stockholders' Agreement shall have been executed and
delivered by the Company and each other party thereto.
(e) The Credit Agreement shall have been amended in a manner
satisfactory to the investors.
(f) A fairness opinion shall have been delivered by
PaineWebber Incorporated with respect to the Purchase Price.
5.2. CONDITIONS TO THE COMPANY'S OBLIGATIONS. The obligation
of the Company to consummate the transactions contemplated by this Agreement is
subject to the fulfillment at or prior to the Closing of the following
conditions:
(a) The representations and warranties contained in Section
3.2 hereof shall be correct and complete in all material respects as of the
Closing Date to the same extent as though
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made on and as of such date; and the Investors shall have performed all
agreements and satisfied all conditions contained herein which are required to
be performed or complied with by the Investors on or prior to the Closing Date.
(b) No preliminary or permanent injunction or other order
issued by any federal or state court of competent jurisdiction in the United
States or by any United States federal or state governmental or regulatory body
nor any statute, rule, regulation or executive order promulgated or enacted by
any United States federal or state governmental authority which restrains,
enjoins or otherwise prohibits the transactions contemplated hereby shall be in
effect.
(c) A fairness opinion shall have been delivered by
PaineWebber Incorporated with respect to the Purchase Price.
6. Termination.
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6.1. GENERAL. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned with respect to an Investor at
any time, but not later than the Closing Date:
(a) by the mutual consent of the Company and the
relevant Investor;
(b) by the Company after September 30, 1997 if, through
no fault of the Company, the Closing shall not have occurred; or
(c) by the relevant Investor after September 30, 1997
if, through no fault of such Investor, the Closing shall not have occurred.
6.2. PROCEDURE UPON TERMINATION. In the event of the
termination and abandonment of this Agreement with respect to one or more of the
parties hereto, written notice thereof shall promptly be given to the other
party or parties hereto and this Agreement shall terminate and the transactions
contemplated hereby shall be abandoned with only respect to the parties subject
to such termination without further action by any of the parties hereto.
7. Miscellaneous.
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7.1. BINDING EFFECT; SUCCESSORS AND ASSIGNS. The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. An Investor may assign its
rights and obligations under this Agreement to any of its affiliates.
7.2. AMENDMENT; WAIVER. This Agreement may be amended only by
a written instrument signed by the parties hereto. No waiver by either party
hereto of any provision hereof shall be effective unless set forth in a writing
executed by the party so waiving.
7.3. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to contracts made and to be performed therein.
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7.4. JURISDICTION. Any suit, action or proceeding with respect
to this Agreement, or any judgment entered by any court in respect of any
thereof, shall be brought in any court of competent jurisdiction in the State of
New York, and each of the Company and the Investors hereby submits to the
exclusive jurisdiction of such courts for the purpose of any such suit, action,
proceeding or judgment. Each of the Investors and the Company hereby irrevocably
waives any objections which it may now or hereafter have to the laying of the
venue of any suit, action or proceeding arising out of or relating to this
Agreement brought in any court of competent jurisdiction in the State of New
York, and hereby further irrevocably waives any claim that any such suit, action
or proceeding brought in any such court has been brought in any inconvenient
forum.
7.5. NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy, telegraph or telex), and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand, or three
days after being deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when received, or, in the case of telegraphic notice, when
delivered to the telegraph company, or, in the case of telex notice, when sent,
answerback received, addressed as follows to the Company and the Investors, or
to such other address as may be hereafter notified by the parties hereto:
(a) If to the Company, to it at the following address:
Bar Technologies Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: President
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(b) If to an Investor, to it at its address or telecopy
number set forth by its name on the signature pages
hereto.
7.6. INTEGRATION. This Agreement and the documents referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth herein and therein. This Agreement and such
documents supersede all prior agreements and understandings between the parties
with respect to such subject matter.
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7.7. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, and by different parties on separate counterparts each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
7.8. RIGHTS CUMULATIVE; WAIVER. The rights and remedies of
each of the Investors and the Company under this Agreement shall be cumulative
and not exclusive of any rights or remedies which either would otherwise have
hereunder or at law or in equity or by statute, and no failure or delay by
either party in exercising any right or remedy shall impair any such right or
remedy shall impair any such right or remedy or operate as a waiver of such
right or remedy, nor shall any single or partial exercise of any power or right
preclude such party's other or further exercise or the exercise of any other
power or right. The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any preceding or
succeeding breach and no failure by either party to exercise any right or
privilege hereunder shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
BAR TECHNOLOGIES INC.
By:
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Name:
Title:
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INVESTORS:
Number of Shares Aggregate
NAME AND ADDRESS of Common Stock Purchase Price
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BLACKSTONE CAPITAL PARTNERS II MERCHANT BANKING
FUND, L.P.
By: Blackstone Management Associates II L.L.C., as General
Partner
By:
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Name:
Title:
Address: c/o The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
BLACKSTONE OFFSHORE CAPITAL
PARTNERS II L.P.
By: Blackstone Management Associates
II L.L.C., as General Partner
By:
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Name:
Title:
Address: c/o The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP II L.P.
By: Blackstone Management Associates
II L.L.C., as General Partner
By:
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Name:
Title:
Address: c/o The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, XX 1001
Attention: Xxxxx Xxxxxxxx
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INVESTORS:
Number of Shares Aggregate
NAME AND ADDRESS of Common Stock Purchase Price
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BRW STEEL HOLDINGS II, L.P.
By:
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Name:
Title:
Address: x/x Xxxxxxx Xxxxxxx, X.X.X.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx XxXxxx
KDJ, L.L.C.
By:
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Name:
Title:
Address: x/x Xxxxxxx Xxxxxxx, X.X.X.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx XxXxxx
VERITAS CAPITAL, L.L.C.
By:
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Name:
Title:
Address: x/x Xxxxxxx Xxxxxxx, X.X.X.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx XxXxxx
