EXHIBIT-99.01
GENERAL PARTNER
SUBSCRIPTION AGREEMENT
FOR
SW ACQUISITION, L.P.
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THE PARTNERSHIP INTERESTS REFERRED TO HEREIN HAVE NOT BEEN REGISTERED,
QUALIFIED, APPROVED OR DISAPPROVED UNDER ANY FEDERAL OR STATE SECURITIES LAWS,
NOR HAS THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR ANY OTHER
FEDERAL OR STATE REGULATORY AUTHORITY PASSED ON OR ENDORSED THE MERITS OF THE
OFFERING OF SUCH INTERESTS. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL. THE
PARTNERSHIP INTERESTS REFERRED TO HEREIN ARE SUBJECT TO RESTRICTIONS ON TRANSFER
SET FORTH IN THE AGREEMENT OF LIMITED PARTNERSHIP OF SW ACQUISITION, L.P. DATED
AS OF MAY 24, 1999 AND THE PARTNERSHIP INTERESTS MAY NOT BE SOLD, TRANSFERRED,
OR OTHERWISE DISPOSED OF BY AN INVESTOR UNLESS THEY ARE REGISTERED UNDER FEDERAL
SECURITIES LAWS AND, WHERE REQUIRED, UNDER THE LAWS OF OTHER JURISDICTIONS,
UNLESS SUCH PROPOSED SALE, TRANSFER OR DISPOSITION IS EXEMPT FROM SUCH
REGISTRATION. EXCEPT AS SET FORTH IN THE AGREEMENT OF LIMITED PARTNERSHIP, THERE
IS NO OBLIGATION OF THE ISSUER TO REGISTER THE PARTNERSHIP INTERESTS.
ACCORDINGLY, A PURCHASER OF A PARTNERSHIP INTEREST MUST BE PREPARED TO BEAR THE
ECONOMIC RISK OF THE INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
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SW Acquisition, L.P.
0 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned is executing this Agreement in connection with
its subscription for a partnership interest (an "Interest") in SW Acquisition,
L.P. (the "Partnership"), a Texas limited partnership. The undersigned
understands that the Partnership is relying upon the accuracy and completeness
of the information contained herein in complying with its obligations under
federal and state securities and other applicable laws. Capitalized terms used
but not defined herein have the same meanings as in the Agreement of Limited
Partnership of the Partnership, dated as of May 24, 1999 (the "Partnership
Agreement"), a copy of which is attached as Exhibit A hereto.
The undersigned hereby irrevocably agrees with, and represents
and warrants to and for the benefit of, the Partnership and the limited partners
in the Partnership (the "Limited Partners") as follows:
1. Subscription.
(a) Subject to the terms and conditions of this Agreement, the
undersigned hereby irrevocably subscribes for Interests in the Partnership and
agrees to make an aggregate Capital Contribution (the "Aggregate Capital
Contribution") to the Partnership in respect thereof in the amount set forth on
the signature page hereof and agrees to pay such Aggregate Capital Contribution
to the Partnership in accordance with the terms of the Partnership Agreement and
this Agreement. Upon the execution of this Agreement and the Partnership
Agreement, the undersigned is paying to the Partnership an amount equal to
.0001% of the Aggregate Capital Contribution. At the closing of the merger under
the Merger Agreement (the "Closing"), the undersigned shall make an additional
Capital Contribution to the Partnership of an amount equal to 99.999% of the
Aggregate Capital Contribution, less any Capital Contributions made pursuant to
paragraph (b) below.
(b) To the extent that, from time to time prior to the
Closing, all Partners are notified that the Partnership has incurred actual
reasonable out-of-pocket expenses (the "Expenses") in connection with (i)
obtaining the insurance required by Section 8.8(c) of the Partnership Agreement,
(ii) leasing office space for the General Partner, and reasonable overhead
expenses in connection therewith, and (iii) payments to unrelated third parties
in connection with satisfying the conditions under the financing agreements
entered into in connection with the Merger Agreement, the undersigned will make
an additional Capital Contribution (an "Expense Capital Contribution") to the
Partnership, within five days of such notice, in an amount equal to its pro rata
portion (based on the relative actual Capital Contributions of all Partners) of
the Expenses, and any such Expense Capital Contribution shall be treated as an
advance payment of a portion of the Aggregate Capital Contribution required to
be paid at the Closing pursuant to paragraph (a); provided that the aggregate
Capital Contributions required to be made by all Partners for such Expenses
shall in no event exceed $600,000; provided further that in no event shall any
such Expense Capital Contribution increase the Aggregate Capital Contribution
which the undersigned has agreed to make under this Agreement.
(c) The undersigned herewith tenders two signed copies of this
Agreement and an executed signature page of the Partnership Agreement.
2. General Partner Acceptance. Upon execution of this Agreement by the
general partner of the Partnership (the "General Partner") on behalf of this
Partnership, this Agreement shall become a binding agreement between the
Partnership and the undersigned.
3. Other Subscription Agreements. The Partnership has heretofore
entered into, and expects to enter into, separate but substantially identical
subscription agreements (the "Other Subscription Agreements" and, together with
this Agreement, the "Subscription Agreements") with other purchasers (the "Other
Purchasers"), providing for the subscription by the Other Purchasers of
Interests for an aggregate Capital Contribution to the Partnership of
$100,000,000 (including the Capital Contributions subscribed for hereunder).
This Agreement and the Other Subscription Agreements are separate and several
agreements, and the sales of Interests to the undersigned and to the Other
Purchasers are to be separate and several sales.
4. Representations and Warranties of the Undersigned. The undersigned
hereby represents and warrants to the Partnership as follows:
(a) Organization and Qualification. The undersigned is duly
organized or formed, validly existing and in good standing under the
laws of the state of its organization or formation, except for such
failures to be so formed, existing and in good standing which,
individually or in the aggregate, are not having and could not be
reasonably expected to have a material adverse effect on the
undersigned and its subsidiaries taken as a whole.
(b) Authority. The undersigned has the requisite power and
authority to enter into this Agreement and the Partnership Agreement,
to perform its obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement and the Partnership
Agreement by the undersigned and the consummation by the undersigned of
the transactions contemplated hereby and thereby have been duly and
validly approved by all necessary action, and no other proceedings on
the part of the undersigned are necessary to authorize the execution,
delivery and performance of this Agreement by the undersigned and the
consummation by the undersigned of the transactions contemplated hereby
and thereby. Each of this Agreement and the Partnership Agreement has
been duly and validly executed and delivered by the undersigned and,
assuming the due authorization, execution and delivery of this
Agreement and the Partnership Agreement by the Partnership, constitutes
a legal, valid and binding obligation of the undersigned enforceable
against the undersigned in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) Non-Contravention; Approvals and Consents.
(i) The execution and delivery of this Agreement and
the Partnership Agreement by the undersigned do not, and the
performance by the undersigned of its obligations hereunder
and thereunder and the consummation of the transactions
contemplated hereby and thereby will not, conflict with,
result in a violation or breach of, constitute (with or
without notice or lapse of time or both) default under, result
in or give to any person any right of payment or
reimbursement, termination, cancellation, modification or
acceleration of, or result in the creation or imposition of
any Lien upon any of the assets or properties of the
undersigned or any of the undersigned's subsidiaries under,
any of the terms, conditions or provisions of (1) the
certificates or articles of incorporation or bylaws (or other
comparable charter documents) of the undersigned or any of its
subsidiaries, or (2) subject to the taking of the actions
described in paragraph (ii) of this Section, (x) any laws
existing on the date hereof or orders of any Governmental or
Regulatory Authority applicable to the undersigned or any of
its subsidiaries or any of their respective assets or
properties, or (y) any Contracts to which the undersigned or
any of its subsidiaries is a party or by which the undersigned
or any of its subsidiaries or any of their respective assets
or properties is bound, excluding from the foregoing clauses
(x) and (y) conflicts, violations, breaches, defaults,
terminations, modifications, accelerations and creations and
impositions of Liens which, individually or in the aggregate,
could not be reasonably expected to have a material adverse
effect on the ability of the undersigned to consummate the
transactions contemplated by this Agreement.
(ii) Except as disclosed on Schedule 4(c) hereto, no
consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority or other public or
private third party is necessary or required under any of the
terms, conditions or provisions of any law or order of any
Governmental or Regulatory Authority or any Contract to which
the undersigned or any of its subsidiaries is a party or by
which the undersigned or any of its subsidiaries or any of
their respective assets or properties is bound for the
execution and delivery of this Agreement or the Partnership
Agreement by the undersigned, the performance by the
undersigned of its obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or
thereby, other than such consents, approvals, actions, filings
and notices which the failure to make or obtain, as the case
may be, individually or in the aggregate, could not be
reasonably expected to have a material adverse effect on the
ability of the undersigned to consummate the transactions
contemplated by this Agreement or the Partnership Agreement.
(d) Residence. The principal place of business address set
forth on the signature page hereof is the undersigned's true and
correct principal place of business and is the only jurisdiction in
which an offer to sell the Interests was made to the undersigned and
the undersigned has no present intention of moving its principal place
of business to any other state or jurisdiction;
(e) No Registration. The undersigned understands that the
Interests have not been registered under the Act, or under the laws of
any other jurisdiction, and that except as otherwise contemplated
pursuant to the Partnership Agreement, the Partnership does not
contemplate and is under no obligation to so register the Interests.
The undersigned understands and agrees that the Interests must be held
indefinitely unless they are subsequently transferred (i) pursuant to
an effective registration statement under the Act and, where required,
under the laws of other jurisdictions or (ii) pursuant to an exemption
from applicable registration requirements. Even if such exemption is
available, the undersigned agrees that the assignment and
transferability of the Interests will be governed by the Partnership
Agreement. The Partnership Agreement imposes substantial restrictions
on assignment or transfer of Interests. The undersigned recognizes that
there is no established trading market for the Interests and that it is
unlikely that any public market for the Interests will develop for at
least five years. The undersigned will not offer, sell, transfer or
assign its Interest or any interest therein in contravention of this
Agreement, the Partnership Agreement, the Act or any state or federal
law;
(f) Purchase for Investment. The Interests for which the
undersigned hereby subscribes are being acquired solely for the
undersigned's own account for investment and are not being purchased
with a view to or for resale, distribution or other disposition, and
the undersigned has no present plans to enter into any contract,
undertaking, agreement or arrangement for any such resale, distribution
or other disposition;
(g) Knowledge. The undersigned has been furnished and has
carefully read the Partnership Agreement. The undersigned understands,
acknowledges and agrees that:
(i) the Partnership has recently been organized
and therefore has no financial or operating history;
(ii) the undersigned is not entitled to cancel,
terminate or revoke this Agreement or any of the powers
conferred herein;
(iii) various conflicts of interest may arise out
of transactions between the Partnership, the Limited Partners
and the General Partner and their respective Affiliates; and
(iv) the Interests are speculative investments
which involve a high degree of risk.
(h) Information. The undersigned has been granted the
opportunity to ask questions of, and receive answers from, the sponsors
of the Partnership concerning the terms and conditions of the sale of
the Interests, the Merger Agreement and the transactions contemplated
thereby, and to obtain any additional information which the undersigned
deems necessary to make an informed investment decision. The
undersigned has received or has had access to other documents requested
from the Partnership relating to the Interests and the purchase
thereof, and the Partnership has afforded the undersigned the
opportunity to discuss the undersigned's investment in the Partnership
and to ask and receive answers to any questions relating to the
investment in the Interests, the Merger Agreement and the transactions
contemplated thereby. The undersigned understands and has evaluated the
risks of a purchase of the Interests;
(i) Accredited Investor. The undersigned has read the text
of Rule 501(a)(1) - (8) of Regulation D under the Act and confirms that
it is an "accredited investor" as described thereby;
(j) Plan Assets.
(i) By checking below, the undersigned has indicated
whether or not it is, or is acting on behalf of, a "benefit
plan investor", as defined in 29 C.F.R. ss. 2510.3-101. The
undersigned acknowledges that (A) a benefit plan investor
includes (x) an "employee benefit plan" within the meaning of
Section 3(3) of the U.S. Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), whether or not such plan is
subject to ERISA, or (y) a plan or arrangement subject to
Section 4975 of the Code or (iii) an entity which is deemed to
hold the assets of any such employee benefit plan, plan or
arrangement described in (x) or (y) above pursuant to 29
C.F.R. ss. 2510.3-101 or otherwise, (B) a plan which is
maintained by a foreign corporation, governmental entity or
church, a Xxxxx plan covering no common-law employees and an
individual retirement account would each be a benefit plan
investor for this purpose, even though they are generally not
subject to ERISA and (C) a foreign or U.S. entity which is not
an operating company and which is not publicly traded or
registered as an investment company under the Investment
Company Act of 1940, as amended, and in which 25% or more of
the value of any class of equity interests is held by benefit
plan investors, would be deemed to hold the assets of one or
more employee benefit plans pursuant to 29 C.F.R. 2510.3-101.
The undersigned further understands that for purposes of
determining whether this 25% threshold has been met or
exceeded, the value of any equity interests held by a person
(other than a benefit plan investor) who has discretionary
authority or control with respect to the assets of the entity,
or any person who provides investment advice for a fee (direct
or indirect) with respect to such assets, or any affiliate of
such a person, is disregarded:
___ Yes ___ No
(ii) By checking below, the undersigned has indicated
whether it is, or is acting on behalf of, such an employee
benefit plan, plan or arrangement described in the preceding
question, or is an entity deemed to hold the assets of any
such employee benefit plan, plan or arrangement that is
subject to ERISA and/or Section 4975 of the Code"
___ Yes ___ No
(iii) By checking below, the undersigned has
indicated whether it is an insurance company using assets of
its general account?
___ Yes ___ No
If the answer to the above question is yes, please indicate
the percentage of the general account that is attributable to
benefit plan investors subject to ERISA and/or Section 4975 of
the Code: _______%;
(k) Holding Company Acts and FPA. On the date hereof, the
undersigned is not a "public utility company", a "holding company", a
"subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended,
("PUCHA") or a "public utility" as such term is defined in the Federal
Power Act ("FPA"); and
(l) Ownership of Company Common Stock. As of the date hereof,
except as set forth in Schedule 4(l) attached hereto, the undersigned
does not, either individually or as part of a group for purposes of
Rule 13-d under the Securities Exchange Act of 1934, as amended,
beneficially own any shares of Company Common Stock (as defined in the
Merger Agreement).
5. Conditions to Closing. The undersigned's obligation to purchase
and deliver the Capital Contribution for the Interest to be sold by the
Partnership at the Closing is subject to the fulfillment on or prior to the
Closing of the following conditions:
(i) Merger Agreement. As of the Closing all conditions to the
consummation of the transactions contemplated by the Merger Agreement
shall have satisfied or waived and the closing of the transactions
contemplated by the Merger Agreement shall occur simultaneously with
the payment of the Capital Contribution hereunder.
(ii) No Orders. As of the Closing, there shall not be
outstanding any rule or order of any court, administrative agency or
governmental body which in any way restrains or prevents the carrying
out of the transactions contemplated by this Agreement.
(iii) Regulatory Consents and Approvals. All consents,
approvals and actions of, filings with and notices to any Governmental
or Regulatory Authority or any other public or private third parties
necessary to permit the undersigned and the Partnership to perform
their obligations under this Agreement and the Merger Agreement and to
consummate the transactions contemplated hereby and thereby shall have
been duly obtained, made or given and shall be in full force and
effect, and all terminations or expirations of waiting periods imposed
by any Governmental or Regulatory Authority necessary for the
consummation of the transaction contemplated by this Agreement,
including under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended and the rules and regulations promulgated thereunder,
shall have occurred.
6. Partnership Agreement. The undersigned agrees to enter into the
Partnership Agreement upon acceptance of this Subscription Agreement by the
General Partner.
7. Indemnification. The undersigned agrees to indemnify and hold
harmless the Partnership, each Limited Partner, or any officer, director or
control person (within the meaning of Section 15 of the Act) of any such
entity from and against any and all loss, damage or liability due to or
arising out of a breach of any representation or warranty of the undersigned
contained in any document furnished by the undersigned in connection with
the offering and sale of the Interests, including, without limitation, this
Agreement, or failure by the undersigned to comply with any covenant or
agreement made by the undersigned herein or in any other document furnished
by the undersigned to any of the foregoing in connection with this
transaction.
8. Survival; Binding Effect. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and delivery of the Interests and payment
therefore and, notwithstanding any investigation heretofore or hereafter
made by the undersigned or on the undersigned's behalf, shall continue in
full force and effect. Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and
agreements in this Agreement by or on behalf of the Partnership, or by or
on behalf of the undersigned, shall bind and inure to the benefit of the
successors and assigns of such parties hereto.
9. Termination. (a) This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned (i) at any time before
the Closing, by mutual written agreement of the Partnership (following
action by the Advisory Committee) and the undersigned or (ii) at any time
before the Closing, by the Partnership or the undersigned, in the event
that any order or law becomes effectiv restraining, enjoining or otherwise
prohibiting or making illegal the consummation of any of the transactions
contemplated by this Agreement or the Partnership, upon notification to the
non-terminating party by the terminating party.
(b) This Agreement shall automatically terminate, with no
further action being required on the part of either party hereto, upon any
termination of the Merger Agreement in accordance with its terms.
(c) This Agreement may be terminated by the undersigned if any
occurrence or circumstance results in a failure to satisfy the conditions
in Sections 5(ii) or (iii) hereof.
(d) If this Agreement is validly terminated pursuant to this
Section, this Agreement will forthwith become null and void, and there will
be no liability or obligation on the part of the undersigned or the
Partnership (or any of their respective partners, officers, directors,
employees, agents or other representatives or affiliates). Notwithstanding
the foregoing, no such termination shall affect the obligations of the
undersigned pursuant to Section 1(b) and Section 7, which shall survive any
such termination.
10. Notices. All notices, statements, instructions or other documents
required to be given hereunder shall be in writing and shall be given
either personally, by overnight courier or by facsimile, addressed to the
Partnership at its principal offices and to the other parties at their
addresses or facsimile numbers reflected in the records of the Partnership.
The undersigned, by written notice given to the Partnership in accordance
with this Section 10 may change the address to which notices, statements,
instructions or other documents are to be sent to the undersigned. All
notices, statements, instructions and other documents hereunder that are
mailed shall be deemed to have been given on the date of delivery. Whenever
pursuant to this Agreement any notice is required to be given by the
undersigned to any other Partner, the undersigned may request from the
Partnership a list of addresses of all Partners of the Partnership, which
list shall be promptly furnished to the undersigned.
11. Complete Agreement; Counterparts. This Agreement constitutes the
entire agreement and supersedes all other agreements and understandings,
both written and oral, among the parties or any of them, with respect to
the subject matter hereof. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
12. Assignment. Neither this Agreement nor any right, interest or
obligation hereunder may be assigned by any party hereto and any attempt to
do so will be void, except that the undersigned may assign any or all
of its rights, interests and obligations hereunder to a Permitted
Transferee that agrees in writing to be bound by all of the terms,
conditions and provisions contained herein, but no such assignment shall
relieve the undersigned of its obligations hereunder. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the
benefit of and shall be enforceable by the parties hereto and their
respective successors and assigns.
13. Amendment and Waiver. This Agreement may be amended or modified
only by an instrument signed by the parties hereto. A waiver of any
provision of this Agreement must be in writing, designated as such, and
signed by the party against whom enforcement of that waiver is sought. The
waiver by a party of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent or other breach
thereof.
14. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York.
Signature Page for Corporate, Partnership or Trust Subscribers
IN WITNESS WHEREOF, the undersigned has executed this
Subscription Agreement on this 24th day of May, 1999.
SW I Acquisition GP, L.P. 0 Xxxxxxx Xxxx, Xxxxx 000
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Name of Entity (Print) Mailing Address -- Street
By: XX XX Acquisition LLC Xxxxxxx XX 00000
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as General Partner City State Zip Code
By: /s/ X. X. Xxxxxxxxxxx
------------------------------- -------------------------
Tax Identification Number
Xxxxxxx X. Xxxxxxxxxxx
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Name (Print)
Manager
-----------------------------------
Title
Total amount of Interest subscribed for: 0.1% Interest in the Partnership
for $100,001 contributed.
000-000-0000
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Telecopy No.
516-933-3100
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Telephone No.
SUBSCRIPTION ACCEPTED AS OF MAY 24, 1999
SW Acquisition, L.P.
By: SW I Acquisition GP, L.P.
as General Partner
By: XX XX Acquisition, LLC
as General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Manager
