EXHIBIT 10.16
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "AGREEMENT") is made and entered into as
of November 30, 2004, by and among each of the persons set forth on Schedule I
hereto (collectively, the "PREFERRED PURCHASERS," and each, a "PREFERRED
PURCHASER"), each of the persons set forth on Schedule II hereto (collectively,
the "COMMON PURCHASERS," and each, a "COMMON PURCHASER"; collectively together
with the Preferred Purchasers, the "PURCHASERS," and each, a "PURCHASER") and
Altra Holdings, Inc., a Delaware corporation formerly known as CPT Acquisition
Corp. (the "COMPANY").
RECITALS
WHEREAS, on or about the date hereof, Altra Industrial Motion, Inc., a
Delaware corporation and a wholly owned subsidiary of the Company ("ALTRA"), is
purchasing, directly and indirectly (the "ACQUISITION"), all of the issued and
outstanding limited liability company interests of Power Transmission Holding
LLC, a Delaware limited liability company, pursuant to an LLC Purchase Agreement
dated as of October 25, 2004 (the "PURCHASE AGREEMENT"), by and among the
Company, Warner Electric Holding, a Delaware corporation, and Colfax
Corporation, a Delaware corporation;
WHEREAS, subject to the terms and conditions of this Agreement, each
Preferred Purchaser is willing to purchase, and the Company is willing to issue
and sell to such Preferred Purchaser, the number of shares of Series A Preferred
Stock, par value $0.001 per share, of the Company (the "PREFERRED STOCK") set
forth opposite the name of such Preferred Purchaser on Schedule I hereto, having
the rights, preferences, powers and privileges set forth in the form of Amended
and Restated Certificate of Incorporation attached hereto as Exhibit A (the
"AMENDED AND RESTATED CERTIFICATE OF INCORPORATION");
WHEREAS, subject to the terms and conditions of this Agreement, each Common
Purchaser is willing to purchase, and the Company is willing to issue and sell
to such Common Purchaser, the number of shares of Common Stock, par value $0.001
per share, of the Company (the "COMMON STOCK") set forth opposite the name of
such Common Purchaser on Schedule II hereto, having the rights, preferences,
powers and privileges set forth in the form of Amended and Restated Certificate
of Incorporation;
WHEREAS, such shares of Common Stock shall be issued and sold in exchange
for restricted common stock of The Xxxxxx Company, a Delaware corporation
("XXXXXX"), and shall be subject to vesting restrictions corresponding to the
vesting restrictions applicable to the restricted common stock of Xxxxxx being
exchanged therefor;
WHEREAS, the Company and the Purchasers intend that the transactions
contemplated by this Agreement shall be governed by Section 351 of the Internal
Revenue Code of 1986, as amended (the "CODE"); and
WHEREAS, it is anticipated that on or about the date hereof, (i) the
Acquisition, as contemplated in the Purchase Agreement, will be consummated and
(iii) the Company and the Purchasers will enter into a Stockholders Agreement
substantially in the form attached hereto as
Exhibit B (the "STOCKHOLDERS AGREEMENT") and a Registration Rights Agreement
substantially in the form attached hereto as Exhibit C (the "REGISTRATION RIGHTS
AGREEMENT");
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, and the representations,
warranties, covenants and conditions set forth below, the parties hereto hereby
agree as follows:
1. Purchase of Securities.
(a) Purchase of Securities. Subject to the terms and conditions of
this Agreement, (i) each Preferred Purchaser hereby agrees, severally and not
jointly, to purchase from the Company, and the Company hereby agrees to issue
and sell to each Preferred Purchaser, the number of shares of the Preferred
Stock set forth opposite the name of such Preferred Purchaser on Schedule I
hereto at the purchase price therefor set forth on Schedule I and (ii) each
Common Purchaser hereby agrees, severally and not jointly, to purchase from the
Company, and the Company hereby agrees to issue and sell to each Common
Purchaser, the number of shares of Common Stock set forth opposite the name of
such Common Purchaser on Schedule II hereto at the purchase price therefor set
forth on Schedule II. The shares of Preferred Stock issued and sold to the
Preferred Purchasers hereunder are referred to in this Agreement as the
"PREFERRED SHARES" and the shares of Common Stock issued and sold to the Common
Purchasers hereunder are referred to in this Agreement as the "COMMON SHARES"
(the Common Shares, together with the Preferred Shares, are collectively
referred to herein as the "SECURITIES"). The purchase price for the Securities
is referred to as the "PURCHASE PRICE." The shares of common stock of the
Company issuable upon conversion of the Preferred Shares are referred to as the
"CONVERSION SHARES."
(b) Delivery of Funds and Certificates. The closing of the purchase
and sale of the Securities (the "CLOSING") shall take place at a time and place
to be designated by the Company on at least 24 hours notice. At the Closing, the
Company will deliver to each Purchaser a duly executed stock certificate,
registered in such Purchaser's name and representing the Securities to be issued
and sold to such Purchaser, against payment of the applicable Purchase Price
therefor (i) to the extent set forth on Schedule I, by wire transfer of
immediately available funds in the amount of the Purchase Price representing
payment in full for such Preferred Shares to an account or accounts designated
by the Company, (ii) to the extent set forth on Schedule I, by tendering the
number of shares of preferred stock of Xxxxxx (the "XXXXXX PREFERRED STOCK") set
forth opposite the name of such Purchaser on Schedule I, which shares of Xxxxxx
Preferred Stock have been deemed by the board of directors of the Company (the
"BOARD") to have a fair market value on the date hereof equal to the respective
amounts set forth in Schedule I or (iii) to the extent set forth on Schedule II,
by tendering the number of shares of common stock of Xxxxxx (the "XXXXXX COMMON
STOCK" and, together with the Xxxxxx Preferred Stock, the "XXXXXX Stock"), set
forth opposite the name of such Purchaser on Schedule II, which shares of Xxxxxx
Common Stock have been deemed by the Board to have a fair market value on the
date hereof equal to the respective amounts set forth in Schedule II. Any such
Common Shares issued under clause (iii) shall be subject to vesting restrictions
corresponding in vesting amounts and periods (but having identical vesting
commencement dates) as those vesting restrictions that are applicable
immediately prior to the Closing to the Xxxxxx Common Stock
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exchanged therefor, as determined in the reasonable good faith judgment of the
Board (the "VESTING RESTRICTIONS").
2. Representations and Warranties of the Company. The Company represents
and warrants to each Purchaser that:
(a) Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to carry on its
business as now conducted and as proposed to be conducted. The Company is duly
qualified to transact business in each jurisdiction in which the character of
its business makes such qualification necessary, except where the failure to be
so qualified would not have a material adverse effect on the business operations
or financial condition of the Company.
(b) Authorization. The Company has the requisite corporate power and
authority to execute and deliver this Agreement, the Stockholders Agreement and
the Registration Rights Agreement and to perform its obligations hereunder and
thereunder. All corporate action on the part of the Company necessary for (i)
the authorization, execution, delivery and performance by the Company of this
Agreement, the Stockholders Agreement and the Registration Rights Agreement and
(ii) for the authorization, issuance and delivery by the Company of the
Securities (including the Conversion Shares) being sold under this Agreement,
has been taken.
(c) Binding Obligation. This Agreement has been, and on or before the
Closing the Stockholders Agreement and the Registration Rights Agreement will
be, duly authorized, executed and delivered by the Company and this Agreement
is, and on and after the Closing the Stockholders Agreement and the Registration
Rights Agreement will be, the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with the terms hereof,
subject to: (i) the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, fraudulent transfer, preferential transfer or
distribution laws and other similar laws now or hereafter in effect relating to
or affecting the rights of creditors generally; and (ii) the effect of (A)
general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law, and (B) the discretion
of any court in which an action is brought.
(d) Non-Contravention. The execution and delivery by the Company of
this Agreement, the Stockholders Agreement and the Registration Rights
Agreement, the performance by the Company of its obligations under this
Agreement, the Stockholders Agreement and the Registration Rights Agreement and
the consummation by the Company of the transactions contemplated hereby and
thereby will not conflict with or result in any violation of or default under
(i) any provisions of the Amended and Restated Certificate of Incorporation or
Bylaws of the Company, each as amended and currently in effect, (ii) any
provision of any agreement or other instrument to which the Company is a party
or by which the Company or any of its properties are bound, or (iii) all
applicable material statutes, laws, regulations and executive orders of the
United States (including, without limitation, any administrative or
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regulatory body thereof) and all states, countries and municipalities having
jurisdiction over the Company's business, properties or assets.
(e) Capitalization. The authorized capital of the Company will,
immediately prior to the Closing, consist of:
(1) Preferred Stock. Forty Million (40,000,000) shares of
preferred stock, consisting of Forty Million (40,000,000) shares designated
Series A Preferred Stock, none of which are issued and outstanding and up to
36,000,000 of which may be sold at the Closing. The rights, preferences, powers
and privileges of the Preferred Stock are as stated in the Amended and Restated
Certificate of Incorporation.
(2) Common Stock. Fifty Million (50,000,000) shares of Common
Stock, none of which are issued and outstanding.
(3) Equity Plan. The Company has reserved Four Million
(4,000,000) shares of its Common Stock for issuance pursuant to the Company's
2004 Equity Incentive Plan (the "EQUITY PLAN").
(f) Validity of Securities. The Securities, when issued, sold and
delivered in accordance with the terms of this Agreement, shall be duly and
validly issued, fully paid and nonassessable, and free and clear of all liens
and encumbrances (except, in the case of Common Shares, the Vesting
Restrictions). The Conversion Shares have been duly and validly reserved for
issuance and, upon issuance in accordance with the terms of the Amended and
Restated Certificate of Incorporation, will be duly and validly issued, fully
paid and nonassessable.
(g) Securities Act. The sale of the Securities in accordance with the
terms of this Agreement (assuming the accuracy of the representations and
warranties of the Purchasers set forth in Section 3 hereof) is, and the issuance
of the Conversion Shares upon conversion of the Securities will be, exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"1933 ACT").
(h) Liabilities. The Company is not in default under any order, writ,
injunction or decree of any federal, state or local court, department or agency
directed against the Company. The Company is not in breach of any of the terms,
conditions or provisions of, or in default under, any indenture, mortgage, deed
of trust, credit agreement, note or other evidence of indebtedness, or any lease
or other agreement, or any license, permit, franchise or certificate, to which
it is a party or by which it is bound or to which any of its properties are
subject, which breach or default would materially adversely affect the business
or financial condition of the Company or impair its ability to carry out any of
its obligations under this Agreement, the Stockholders Agreement or the
Registration Rights Agreement.
(i) Litigation. There is no legal action, suit, arbitration or
governmental proceeding pending or, to the Company's knowledge, threatened
against the Company.
(j) Rights to Acquire Capital Stock or other Voting Securities. Except
for (i) the conversion privileges of the Preferred Stock, (ii) the Four Million
(4,000,000) shares of Common Stock issued or issuable pursuant to the Plan,
(iii) the Vesting Restrictions applicable
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to the Common Shares, and (iv) the preemptive rights, rights of first refusal
and co-sale rights set forth in the Stockholders Agreement, there are not
authorized or outstanding any options, warrants, phantom stock, stock
appreciation or similar rights (including, without limitation, conversion or
preemptive rights) or agreements or arrangements for the issuance by the Company
or the purchase or acquisition from or by the Company of any shares of its
capital stock or other voting securities or any securities convertible into or
exchangeable or exercisable for any shares of the Company's capital stock or
other voting securities. Except for the Stockholders Agreement, the Company is
not a party to any voting trust or voting agreement with respect to the voting,
redemption, sale, transfer or other disposition of the capital stock of the
Company.
(k) No Breach. The Company has not received actual notice of any
breach of any representation or warranty of the Seller (as that term is defined
in the Purchase Agreement) contained in the Purchase Agreement.
(l) Operations. Since the date of its incorporation the Company has
not engaged in any operations other than in connection with or as contemplated
by this Agreement and as set forth in final offering circular, dated November
22, 2004, as amended and supplemented, delivered to investors in connection with
the issuance by Altra of its 9% Senior Secured Notes due 2011 (the "OFFERING
CIRCULAR").
3. Representations and Warranties of the Purchasers. Each Purchaser
individually (but not on behalf of any other Purchaser) represents and warrants
that:
(a) Authority and Binding Obligation. Such Purchaser has the requisite
legal capacity, power and authority to execute and deliver this Agreement, the
Stockholders Agreement and the Registration Rights Agreement and to perform its
obligations hereunder and thereunder. This Agreement has been, and on or before
the Closing the Stockholders Agreement and the Registration Rights Agreement
will be, duly authorized, executed and delivered by such Purchaser and this
Agreement is, and on and after the Closing the Stockholders Agreement and the
Registration Rights Agreement will be, the legal, valid and binding obligation
of such Purchaser, enforceable against such Purchaser in accordance with the
terms hereof and thereof, subject to (i) the effect of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, fraudulent transfer,
preferential transfer or distribution laws and other similar laws now or
hereafter in effect relating to or affecting the rights of creditors generally;
and (ii) the effect of (A) general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law and (B) the
discretion of any court in which an action is brought.
(b) Registration. Such Purchaser has been advised that the Securities
and the Conversion Shares have not been registered under the 1933 Act or any
state securities laws and, therefore, cannot be resold unless they are
registered under the Securities Act and applicable state securities laws or
unless an exemption from such registration requirements are available. Such
Purchaser is purchasing the Securities (including the Conversion Shares) to be
acquired by such Purchaser hereunder for such Purchaser's own account and not
with a view to, or for resale in connection with, the distribution thereof in
violation of the Securities Act. Such Purchaser is
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aware that the Company is under no obligation to effect any such registration
with respect to the Securities or the Conversion Shares (except solely to the
extent, if any, provided in the Registration Rights Agreement) or to file for or
comply with any exemption from registration. Such Purchaser is purchasing the
Securities (including the Conversion Shares) to be acquired by such Purchaser
hereunder for its own account and not with a view to, or for resale in
connection with, the distribution thereof in violation of the Securities Act.
(c) Experience. Such Purchaser has such knowledge and experience in
financial and business matters that such Purchaser is capable of evaluating the
merits and risks of such investment, is able to incur a complete loss of such
investment and is able to bear the economic risk of such investment for an
indefinite period of time. Such Purchaser has had the opportunity to ask
questions of the Company with respect to the Company, the Securities, the
Conversion Shares, the Acquisition and related transactions and to receive such
information from the Company regarding such matters as it deems necessary in
making its decision to purchase the Securities (including the Conversion
Shares). Such Purchaser is an "accredited investor" as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act.
(d) Stock Consideration. To the extent such Purchaser is purchasing
Securities in consideration for the exchange of Xxxxxx Stock, such Purchaser
owns such Xxxxxx Stock of record and beneficially, free and clear of any and all
lien and encumbrances (other than restrictions on transferability under
securities laws). At the Closing, such Purchaser will convey and deliver all
right, title and interest in and to such Xxxxxx Stock, free and clear of all
liens and encumbrances (other than restrictions on transferability under
securities laws). Such Xxxxxx Stock constitutes all shares of Xxxxxx Stock owned
directly or indirectly by such Purchaser.
(e) Compliance with Laws. To our knowledge, no governmental orders,
permissions, consents, approvals, authorizations are required to be obtained and
no registrations or other filings are required to be made in connection with the
execution of this Agreement by the Purchasers and the delivery of the
Securities.
(f) No Disposition of Securities. No Purchaser is obligated to sell
any Securities purchased hereunder pursuant to a binding agreement entered into
prior to the Closing and no Purchaser has any plan or intention to sell or
otherwise dispose of any Securities purchased hereunder in any transaction that
could be integrated with the purchase and sale of Securities contemplated by
this Agreement.
4. Legends. All certificates representing Securities shall bear legends in
the form required under the Stockholders Agreement (and, in the case of Common
Shares, such other legends with respect to the Vesting Restrictions as the
Company may reasonably require) until such time as they may be removed as
provided therein.
5. Conditions to Issuance of Securities. The Company's obligation to issue
and sell the Securities to any Purchaser shall be subject to the satisfaction of
the following conditions:
(a) All representations and warranties of such Purchaser contained in
this Agreement shall be true and correct as of the Closing, and consummation of
the purchases contemplated hereby shall constitute a reaffirmation by each
Purchaser that all representations
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and warranties of such Purchaser contained in this Agreement are true and
correct as of the Closing.
(b) On or before the Closing, substantially contemporaneously with the
issuance and sale of the Securities hereunder, each Purchaser shall have duly
executed and delivered to the Company a counterpart of the Stockholders
Agreement, the Registration Rights Agreement and such other documents as the
Company may reasonably request in connection with the transactions contemplated
hereby (and the execution of this Agreement constitutes the agreement of the
Purchaser to so execute such documents).
6. Conditions to Purchasers' Obligation to Purchase. Each Purchaser's
obligation to purchase the Securities from the Company shall be subject to the
satisfaction of the following conditions:
(a) Concurrently with or prior to such Purchaser's purchase, Altra
shall have issued and sold at least $165,000,000 of senior notes; and
(b) all representations and warranties of the Company contained in
this Agreement shall be true and correct as of the Closing, and consummation of
the purchases contemplated hereby shall constitute a reaffirmation by the
Company that all representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing.
7. Conditions to CDPQ's Obligation to Purchase. The obligation of Caisse de
depot et placement du Quebec, a Quebec corporation ("CDPQ"), to purchase the
Preferred Shares from the Company shall be subject to the satisfaction of the
following conditions:
(a) Concurrently with or prior to such purchase, the Company shall
have entered into a senior credit agreement on terms reasonably satisfactory to
CDPQ;
(b) Concurrently with such purchase, the Company shall have
consummated the Acquisition; and
(c) Concurrently with such purchase, the Company shall sell Securities
(including the Preferred Shares to be sold to CDPQ) for cash and Xxxxxx Stock
having an aggregate value of at least $34,000,000.
8. Related Party Transactions.
(a) Advisory Services Agreement. Each Purchaser acknowledges and
consents that in connection with the transactions contemplated in the Purchase
Agreement, Altra will enter into an advisory services agreement with Genstar
Capital, L.P. ("GENSTAR") in the form attached hereto as Exhibit D which shall
include, among other things, (1) the payment to Genstar of a closing fee, (2)
the payment to Genstar of an annual consulting fee, (3) the payment to Genstar
of advisory fees for transactions contemplated thereby and (4) the reimbursement
of all of Genstar's expenses incurred in connection with the Purchase Agreement
and the transactions contemplated thereby.
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(b) Indemnification. Each Purchaser acknowledges that in connection
with the investment by Genstar Capital Partners III, L.P. and Stargen III, L.P.
(together, the "GENSTAR FUNDS") and CDPQ in the Company, the Company shall
indemnify and hold harmless (i) Genstar and each Genstar Fund and all officers,
directors, employees, agents, advisors and limited and general partners of
Genstar or any Genstar Fund and (ii) CDPQ and all officers, directors,
employees, agents, advisors and limited and general partners of such entity, in
each case, from and against any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, attorneys' fees, expenses
and disbursements of any kind which may be imposed upon, incurred by or asserted
against any such person or entity in any manner relating to or arising out of
(A) the purchase and/or ownership by the Genstar Funds and CDPQ, respectively,
of the Company's capital stock, (B) the Purchase Agreement, the Acquisition and
the other transactions contemplated thereby or (C) any litigation to which any
of such parties is made a party in its capacity as a stockholder or beneficial
owner (or an affiliate of a stockholder or beneficial owner) of the Company's
capital stock (including, without limitation, the Securities and the Conversion
Shares).
9. Use of Proceeds. The Company shall use the proceeds from issuance and
sale of the Securities as described in the Offering Circular.
10. Section 351 Treatment. The Company, each Purchaser and their affiliates
shall treat and report the transactions contemplated by this Agreement as
transactions that are governed by Section 351 of the Code and shall not take any
position contrary thereto on any tax return or in any proceeding relating to
taxes.
11. Vesting Restrictions. Each Purchaser who acquires Common Shares in
exchange for Xxxxxx Stock hereby acknowledges that such Common Shares will be
subject to the Vesting Restrictions.
12. Withholding Exemptions. Each Purchaser who is a United States person
for U.S. federal income tax purposes shall submit a properly executed IRS Form
W-9. Each Purchaser who is not a United States person for U.S. federal income
tax purposes shall submit a properly executed IRS Form W-8 (e.g. W-8BEN, W-8EXP)
establishing a complete exemption from U.S. withholding taxes on all payments
made with respect to the Preferred Shares and the Conversion Shares.
13. Miscellaneous.
(a) Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if delivered personally or sent by certified mail,
return receipt requested, postage prepaid, to the parties to this Agreement at
the following address or to such other address as a party to this Agreement
shall specify by notice to the other parties hereto:
if to a Purchaser, to the address listed next to such Purchaser's name on
the attached Schedule I.
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if to the Company:
Altra Holdings, Inc.
c/o Genstar Capital Partners III, L.P.
Four Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxx-Xxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Mo, Esq.
Xxxxx X. Xxxx, Esq.
Fax No.: (000) 000-0000;
All such notices and communications shall be deemed to have been received on the
date of delivery or on the third business day after the mailing thereof.
(b) Binding Effect; No Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties to this Agreement and their
respective successors and assigns; provided that neither this Agreement nor any
right, remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by any Purchaser without the prior written consent of the
Company (which may be granted or withheld in the sole discretion of the Company)
and, as a condition to any permitted assignment by any Purchaser of its rights
and obligations to purchase Securities hereunder (whether a complete assignment
or a partial assignment), the Company will require that the transferee sign a
counterpart of this Agreement pursuant to which such transferee confirms its
obligation to purchase the Securities to be purchased by it, and makes the
representations, warranties and covenants of the Purchaser as set forth herein;
and provided further that no such transfer or assignment will excuse the
assignor from its obligation to purchase and pay for the applicable Securities
in the event that the transferee does not fulfill such obligation at or prior to
the Closing. In the event of any partial or entire assignment of a Purchaser's
rights to purchase Securities hereunder, the parties will cause Schedule I to be
amended or supplemented to reflect the amount of Securities to be purchased by
each Purchaser (after giving effect to such assignment) and the purchase price
to be paid therefor. Notwithstanding the foregoing, this Agreement shall be
assignable by any Purchaser to an affiliate of such Purchaser, provided,
however, that in such case the transferee must agree in writing to be bound by
the terms of this Agreement to the same extent as if the transferee were a
Purchaser hereunder.
(c) Benefits. Nothing in this Agreement, express or implied, is
intended or shall be construed to give any person other than the parties to this
Agreement or their respective successors or assigns any legal or equitable
right, remedy or claim under or in respect of any agreement or any provision
contained herein.
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(d) Survival. All covenants, agreements, representations and
warranties made herein shall survive the execution and delivery hereof and
transfer of any Securities.
(e) Waiver. Either party hereto may by written notice to the other (a)
extend the time for the performance of any of the obligations or other actions
of the other under this Agreement, (b) waive compliance with any of the
conditions or covenants of the other contained in this Agreement, and (c) waive
or modify performance of any of the obligations of the other under this
Agreement. Except as provided in the preceding sentence, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties, covenants
or agreements contained herein. 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.
(f) Amendment. This Agreement may be amended, modified or supplemented
only by a written instrument executed by the Company, Genstar and CDPQ.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York, without giving effect to any choice or
conflict of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
(h) Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
(j) Expenses. In connection with the Closing, the Company shall pay
the reasonable fees and out-of-pocket expenses of CDPQ with respect to the
transactions contemplated hereby.
(k) Fees. Each party, severally and not jointly, hereby represents and
warrants that such party neither is nor will be obligated for any finder's or
broker's fees or commissions in connection with the purchase and sale of the
Securities hereunder (except in the case of Genstar, as provided in the
Management Agreement).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company and each Purchaser have executed this
Agreement as of the day and year first above written.
ALTRA HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxx
------------------------------------
Name: Xxxxxxx Xxxx
Title:
---------------------------------
[Signature Page to Subscription Agreement]
GENSTAR CAPITAL PARTNERS III, L.P.
By: Genstar Capital III, L.P.
Its: General Partner
By: Genstar III GP LLC
Its: General Partner
By: /s/ X.X. Xxxxx
------------------------------------
Name: X.X. Xxxxx
Title:
---------------------------------
Address:
Genstar Capital Partners III, L.P.
Four Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxx-Xxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Mo, Esq.
Xxxxx X. Xxxx, Esq.
Fax No.: (000) 000-0000
[Signature Page to Subscription Agreement]
STARGEN III, L.P.
By: Genstar Capital III, L.P.
Its: General Partner
By: Genstar III GP LLC
Its: General Partner
By: /s/ X.X. Xxxxx
------------------------------------
Name: X.X. Xxxxx
Title:
---------------------------------
Address:
c/o Genstar Capital Partners III, L.P.
Four Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxx-Xxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Mo, Esq.
Xxxxx X. Xxxx, Esq.
Fax No.: (000) 000-0000
[Signature Page to Subscription Agreement]
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title:
---------------------------------
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title:
---------------------------------
Address:
Caisse de depot et placement du Quebec
1000, place Xxxx-Xxxx-Xxxxxxxx
Montreal (Quebec) H2Z 2B3
Attention: Xxx Xxxxx, Senior Vice
President
Fax No.: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx LLP
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
[Signature Page to Subscription Agreement]
/s/ Xxxxxxx Xxxx
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Xxxxxxx X. Xxxx
Address: 00 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX. 00000
Telephone: (000) 000-0000
/s/ Xxxxxxx Xxxx
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Xxxxxxx X. Xxxx
Address: 0000 Xxxxxxxxx Xx.
Xxxxxxx XX 00000
Facsimile: (000) 000-0000
(non-secure facsimile line)
/s/ Xxxxxx Xxxxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxxx
Address: 000 Xxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
/s/ Xxxxxx Xxxxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxxx
Address: 0000 Xxxxx Xx.
Xxxxxxxx XX 00000
Facsimile: (000) 000-0000
(non-secure facsimile line)
[Signature Page to Subscription Agreement]
SCHEDULE I
PREFERRED PURCHASERS
Aggregate Xxxxxx
Total Number of Preferred Stock
Preferred Shares Aggregate Cash Contributed
Purchaser Acquired Contributed ($100 per Share)
--------- ---------------- -------------- ----------------
Genstar Capital Partners III, L.P. 26,345,584 $18,660,984 76,846
Stargen III, L.P. 949,416 $ 673,416 2,760
Caisse de depot et placement du Quebec 7,000,000 $ 7,000,000 --
Xxxxxxx X. Xxxx 500,000 -- 5,000
Xxxxxxx X. Xxxx 150,000 -- 1,500
Xxxxxx X. Xxxxxxxxxx 100,000 -- 1,000
Xxxxxx X. Xxxxxxxxxx 55,000 -- 550
---------- ----------- ------
TOTALS: 35,100,000 $26,334,400 87,656
SCHEDULE II
COMMON PURCHASERS
Aggregate Xxxxxx
Total Number of Common Stock
Common Shares Aggregate Cash Contributed
Purchaser Acquired Contributed ($6.21 per Share)
--------- --------------- -------------- -----------------
Xxxxxxx X. Xxxx 292,671 -- 2,922
Xxxxxxx X. Xxxx 243,893 -- 2,435
Xxxxxx X. Xxxxxxxxxx 170,775 -- 1,705
Xxxxxx X. Xxxxxxxxxx 170,775 -- 1,705
TOTALS: 878,114 8,767
[Signature Page to Subscription Agreement]
