EXHIBIT 10.5
SAFETY HOLDINGS, INC.
JORDAN INVESTORS SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT, dated as of October 16, 2001 (this
"AGREEMENT"), is made by and among Safety Holdings, Inc., a Delaware corporation
(the "COMPANY"), whose address is c/o The Jordan Company, LLC, 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and the persons and entities whose names
are set forth at the end of this Agreement (collectively the "STOCKHOLDERS").
1. STOCK SUBSCRIPTIONS.
(a) Each Stockholder herewith subscribes for the number of shares set
forth opposite such Stockholder's name in EXHIBIT 1 hereto of the Common Stock,
par value $.01 per share (the "COMMON STOCK"), at a purchase price of $10.00 per
share and tenders cash in consideration of the subscription for such Common
Stock.
(b) Each Stockholder acknowledges to the Company and the other
Stockholders that such Stockholder understands and agrees, as follows:
THE COMMON STOCK HAS NOT BEEN REGISTERED UNDER FEDERAL OR STATE SECURITIES
LAWS. THE COMMON STOCK IS VERY SPECULATIVE AND RISKY. THERE IS NO PUBLIC OR
OTHER MARKET FOR THE COMMON STOCK NOR IS ANY LIKELY TO DEVELOP. THE COMPANY AND
ITS SUBSIDIARIES HAVE BORROWED A SUBSTANTIAL PORTION OF THE FUNDS USED TO
OPERATE ITS BUSINESS. EACH STOCKHOLDER ACKNOWLEDGES THAT SUCH STOCKHOLDER MAY
AND CAN AFFORD TO LOSE SUCH STOCKHOLDER'S ENTIRE INVESTMENT AND THAT SUCH
STOCKHOLDER UNDERSTANDS SUCH STOCKHOLDER MAY HAVE TO HOLD THIS INVESTMENT
INDEFINITELY.
2. PROPOSED TRANSACTIONS.
(a) This Agreement references certain pertinent documents as well as
applicable laws and regulations. Each Stockholder acknowledges to the Company
and the other Stockholders that such references are not summaries or complete
and are qualified in their entirety by the complete texts of the documents, laws
and regulations so summarized.
(b) Each Stockholder acknowledges to the Company and the other
Stockholders that such Stockholder has had access to and has had ample
opportunity to review and understand each of the following documents:
(i) Restated Certificate of Incorporation of the Company.
(ii) By-laws of the Company.
(iii) Merger Agreement, dated as of May 31, 2001, by and among
the Company and the other parties signatory thereto, including all exhibits and
schedules thereto.
(iv) Amendment No. 1 to the Merger Agreement, dated as of July
17, 2001, by and among the Company and the other parties signatory thereto.
(v) Stockholders Agreement, including all exhibits and
schedules thereto.
(vi) Management Subscription Agreement, dated as of the date
hereof, by and among the Company and the management stockholders named therein,
including all exhibits and schedules thereto.
(vii) Management Consulting Agreement, dated as of the date
hereof, by and among the Company and TJC Management Corp. ("TJC MANAGEMENT",
including all exhibits and schedules thereto (the "MANAGEMENT CONSULTING
AGREEMENT").
(viii) Revolving Credit and Term Loan Agreement, dated as of the
date hereof (the "CREDIT AGREEMENT"), among Xxxxxx Xxxxx Corporation, Fleet
National Bank ("FLEET"), the other lenders party thereto, and Fleet, as agent
for itself and such other lenders, including all exhibits and schedules thereto.
(ix) Purchase Agreement, dated as of the date hereof (the
"PURCHASE AGREEMENT"), by and among the Company and JZ Equity Partners PLC
("JZEP"). pursuant to which JZEP will purchase $30 million of the Company's
13.00% Subordinated Notes.
(x) This Agreement and all exhibits and schedules hereto.
The documents referred to in (i) through (x) are hereinafter collectively
referred to as the "OPERATIVE DOCUMENTS", except that, for purposes of SECTION
7(e) only, this Agreement will not be considered an Operative Document.
3. STOCKHOLDER REPRESENTATIONS, WARRANTIES AND COVENANTS. Each
Stockholder represents, warrants and covenants to the Company and each other
Stockholder that:
(a) Such Stockholder has the legal capacity, power and authority to
enter into and perform all of its obligations under this Agreement. The
execution, delivery and performance of this Agreement by such Stockholder will
not violate any other agreement to which such Stockholder is a party including,
without limitation, any voting agreement, stockholders agreement or voting
trust, other than the Stockholders Agreement. This Agreement has been duly and
validly authorized, executed and delivered by such Stockholder and constitutes a
valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except that such enforceability (i)
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally and (ii) is
subject to general principles of equity.
(b) Such Stockholder (i) will not transfer any Common Stock if such
transfer would result in a default by the Company or its subsidiaries under any
of the provisions of the Operative Documents, (ii) except as required by the
Operative Documents, grant any proxies, deposit any Common Stock into a voting
trust or enter into a voting agreement with respect to any Common Stock, or
(iii) take any action that would make any representation or warranty of
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such Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling such Stockholder from performing his obligations under
this Agreement or any of the Operative Documents, or would result in a default
by the Company or its subsidiaries under the provisions of this Agreement or any
of the Operative Documents. Each Stockholder further agrees that such
Stockholder's ability to transfer Common Stock is subject to the limitations,
restrictions and conditions of the Stockholder Agreement and the other Operative
Documents.
(c) Such Stockholder has no pending or threatened claim, complaint,
action, suit, proceeding, hearing or investigation against the Company or its
subsidiaries for any period prior to the date hereof, nor does said Stockholder
intend to bring or file any claim, complaint, action, suit, proceeding, hearing
or investigation against the Company or its subsidiaries for any period prior to
the date hereof.
(d) The Company has afforded such Stockholder and such Stockholder's
advisors, if any, the opportunity to discuss an investment in the Common Stock
and to ask questions of representatives of the Company concerning the terms and
conditions of the offering of the Common Stock and the Operative Documents, and
such representatives have provided answers to all such questions concerning the
offering of the Common Stock and the Operative Documents. Such Stockholder has
consulted its own financial, tax, accounting and legal advisors, if any, as to
such Stockholder's investment in the Common Stock and with the Operative
Documents and the consequences thereof and risks associated therewith. Such
Stockholder and such Stockholder's advisors, if any, have examined or have had
the opportunity to examine before the date hereof the Operative Documents and
all information that such Stockholder deems to be material to an understanding
of the Company and its subsidiaries, the proposed business of the Company and
its subsidiaries, and the offering of the Common Stock. Such Stockholder also
acknowledges that to such Stockholder's knowledge there have been no general or
public solicitations or advertisements or other broadly disseminated disclosures
(including, without limitation, any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television, radio or internet, or any seminar or meeting whose attendees
have been invited by any general solicitation or advertising) by or on behalf of
the Company regarding an investment in the Common Stock.
4. RISK FACTORS. Each Stockholder acknowledges to the Company and the
other Stockholders that:
(a) (i) such Stockholder knows and understands that the Company's
subsidiaries are the Company's only material assets, and that the Company and
certain of its subsidiaries have borrowed a substantial portion of the funds
used to effect the purchase by the Company of the shares listed in the Merger
Agreement; (ii) it is unlikely that dividends will be paid on the Common Stock;
(iii) there is no legal requirement or promise made by the Company to declare or
pay such dividends and such dividends may not in any event be paid if such
payment would violate any term of the Operative Documents; and (iv) certain of
the Operative Documents severely restrict the ability of the Company to make any
dividend or redemption payments in any case and such payment may be further
restricted by future agreements or instruments binding on the Company or its
subsidiaries.
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(b) Any financial projections or forecasts with respect to the
Company and its subsidiaries are only forecasts prepared by management, which
are subject to many assumptions and factors beyond the Company's and its
subsidiaries' control, and that there can be no assurances that these forecasts
will be realized.
5. SECURITIES LAW AND OTHER MATTERS. Each Stockholder represents and
warrants to the Company and the other Stockholders that:
(a) (i) such Stockholder used no "purchaser's representative" (as
that term is used in Regulation D as promulgated by the Securities and Exchange
Commission) in connection with the transactions contemplated by the Operative
Documents; (ii) neither The Jordan Company, LLC ("JORDAN"), nor any of its
respective partners, members, principals, directors, officers, representatives,
attorneys, agents, employees or affiliates has acted as a representative of said
Stockholder in the subject transaction; (iii) such Stockholder has substantial
knowledge and experience in financial, investment and business matters, and
specifically in the business of the Company and its subsidiaries, and has the
requisite knowledge and experience to evaluate the risks and merits of this
investment; (iv) the decision of such Stockholder to purchase the Common Stock
hereunder has been made by such Stockholder independent of any other Stockholder
and independent of any statements, disclosures or judgments as to the
properties, business, prospects or condition (financial or otherwise) of the
Company and its subsidiaries which may have been made or given by any
Stockholder or other person.
(b) (i) the Common Stock being purchased by such Stockholder
hereunder has not been registered under the Securities Act of 1933, as amended,
(the "SECURITIES ACT") on the ground that the sales of Common Stock pursuant to
this Agreement are exempt under Section 4(2) of the Securities Act as not
constituting a distribution, and that the Company's reliance on such exemption
is predicated in part on each Stockholder's representation which such
Stockholder herewith makes that the Common Stock has been acquired solely by and
for the account of such Stockholder for investment purposes only, and are not
being purchased for subdivision, fractionalization, resale or distribution and
other than as expressly set forth in the Operative Documents, such Stockholder
has no contract, undertaking, agreement or arrangement with any other
Stockholder to sell, transfer or pledge to such other Stockholder or anyone else
the Common Stock (or any part thereof) which such Stockholder has purchased
hereunder, and such Stockholder has no present plans or intentions to enter into
any such contract, undertaking, agreement or arrangement; (ii) the Common Stock
being sold to said Stockholder must be held indefinitely unless they are
subsequently registered under the Securities Act or a transfer is made pursuant
to an exemption from such registration, including, for example, pursuant to Rule
144 thereunder and that except as set forth in the Stockholders Agreement, the
Company has no agreements in respect of registering the Common Stock under
Federal or state law; and (iii) such Stockholder's financial condition is such
that such Stockholder is not under any present necessity or constraint, and does
not foresee in the future any necessity or constraint, to dispose of these
shares to satisfy any existing or contemplated debt or undertaking.
(c) In the event that in the future the Company engages in any
negotiation or transaction (including a merger or consolidation or other
reorganization by or of the Company) in which Regulation D promulgated by the
Securities and Exchange Commission may or will be available to the Company, each
of the Stockholders who is not then a professional investor
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agrees irrevocably (and with the knowledge and intention that the other holders
of the Company's stock of all classes will rely thereon in making their
respective present investment decisions) that such Stockholder will, within 5
business days of notice from the Company, which notice may be given in the sole
discretion of the Company, appoint a purchaser's representative or
representatives who shall be qualified and acceptable to the Company and any
other person(s) who is (are) involved in the proposed transaction so that the
maximum benefits of Regulation D shall be available to the Company and all of
its Stockholders. Any Stockholder who does not perform this covenant shall be
liable to the Company and all of the other Stockholders for any damage or loss
that may or might be incurred thereby.
(d) Such Stockholder hereby releases Jordan, JZEP, Jordan/Zalaznick
Advisors Inc. and TJC Management and each of their respective partners, members,
principals, directors, officers, representatives, attorneys, agents, employees
and affiliates from and against any claims in respect of each Stockholder's
subscription for the Common Stock and any related transaction hereunder or under
the Operative Documents.
6. LEGEND. All certificates representing shares of Common Stock shall be
endorsed as follows:
"THIS CERTIFICATE IS SUBJECT TO, AND IS TRANSFERABLE ONLY UPON COMPLIANCE
WITH, THE PROVISIONS OF A STOCKHOLDERS AGREEMENT, DATED OCTOBER __, 2001, AMONG
THE COMPANY AND ITS STOCKHOLDERS AND SUBSCRIPTION AGREEMENTS, DATED OCTOBER __,
2001, AMONG THE COMPANY AND CERTAIN INVESTORS THEREIN. REFERENCE ALSO IS MADE TO
THE RESTRICTIVE PROVISIONS OF THE RESTATED CERTIFICATE OF INCORPORATION AND
BY-LAWS OF THE COMPANY. A COPY OF THE ABOVE REFERENCED AGREEMENTS ARE ON FILE AT
THE OFFICE OF THE COMPANY, C/O THE JORDAN COMPANY, LLC, 000 XXXXX XXXXXX, 00XX
XXXXX, XXX XXXX, XXX XXXX 00000.
THE COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT, OR AN EXEMPTION FROM REGISTRATION, UNDER
SAID ACT."
Each Stockholder acknowledges to the Company and the other Stockholders
that (i) the effect of such legend, among other things, is or may be to limit or
destroy the value of the certificate for purposes of sale or for use as loan
collateral and that "stop transfer" instructions may be noted against the Common
Stock sold to such Stockholder hereunder; and (ii) any transferee of such
Stockholder is required to become a party to the Stockholders Agreement, dated
as of the date hereof, by and among the Company and the Company's stockholders
(the "STOCKHOLDERS AGREEMENT") as a condition to acquiring the Common Stock
hereunder.
7. MISCELLANEOUS.
(a) Subject to the conditions of transfer of Common Stock hereunder
and in the Stockholders Agreement, this Agreement shall be binding upon and
shall inure to the benefit of each individual Stockholder and such Stockholder's
respective heirs, executors,
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administrators, assigns and legal representatives and to the Company and its
respective successors and assigns, by way of merger, consolidation or operation
of law or otherwise. Once a Stockholder is no longer a stockholder of the
Company all rights and benefits (but not the obligations) previously enjoyed by
such party pursuant to the terms of this Agreement shall automatically terminate
with respect to such party.
(b) Prior to consummation of any transfer of Common Stock held by a
Stockholder permitted under the Stockholders Agreement, except for transfers
pursuant to a public offering, such party shall cause the transferee to execute
an agreement in which the transferee agrees to be bound by the terms of this
Agreement and the Stockholders Agreement.
(c) The language used in this Agreement will be deemed to be the
language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction will be applied against any person.
(d) THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE. EACH OF THE
PARTIES HERETO ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF ANY BREACH OF THIS
AGREEMENT, THE NON-BREACHING PARTY WOULD BE IRREPARABLY HARMED AND COULD NOT BE
MADE WHOLE BY MONETARY DAMAGES, AND THAT, IN ADDITION TO ANY OTHER REMEDY TO
WHICH THEY MAY BE ENTITLED AT LAW OR IN EQUITY, THE PARTIES SHALL BE ENTITLED TO
SUCH EQUITABLE OR INJUNCTIVE RELIEF AS MAY BE APPROPRIATE. EACH PARTY AGREES
THAT JURISDICTION AND VENUE MAY BE IN THE SOUTHERN DISTRICT OF NEW YORK AND
WAIVES ANY OBJECTIONS BASED UPON FORUM NON CONVENIENS. EACH PARTY WAIVES
PERSONAL SERVICE OF PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT COMMENCING
AN ACTION OR PROCEEDING SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL
JURISDICTION IF SERVED BY REGISTERED OR CERTIFIED MAIL TO THE PARTY AT THE
ADDRESS SET FORTH IN THIS AGREEMENT, OR AS OTHERWISE PROVIDED BY THE LAWS OF THE
STATE OF DELAWARE OR THE UNITED STATES. THE CHOICE OF FORUM SET FORTH IN THIS
SECTION 7(d) SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT
OBTAINED IN ANY OTHER FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO
ENFORCE SAME IN ANY OTHER APPROPRIATE JURISDICTION.
(e) Each of the Stockholders agrees and acknowledges that the
Operative Documents and any other agreement or instrument that may restrict the
ability of the Company to make any dividend or redemption payments may be
created, amended, modified or supplemented, from time to time, and may be
refinanced, extended or substituted, from time to time, without notice to, or
the consent or approval of, the Stockholders.
(f) All personal pronouns used in this Agreement, whether used in
masculine, feminine or neuter gender, shall include all other genders if the
context so requires; the singular shall include the plural, and vice versa.
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(g) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument. If the requirements of this Agreement have
otherwise been met, new Stockholders may become parties to this Agreement by
executing a counterpart to this Agreement at which time the Company shall revise
the Exhibits as may be necessary or appropriate.
(h) The words "sale," "sell," "transfer" and the like shall include
any disposition by way of transfer, with or without consideration to any person
for any purpose and shall include, but shall not be limited in any way to,
redemption (of other than its preferred stock) by the issuer, private or public
sale or exchanges of securities or any other similar transaction involving the
Common Stock.
(i) In case any one or more of the provisions or parts of a provision
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision or part of a
provision of this Agreement or any other jurisdiction, but this Agreement shall
be reformed and construed in any such jurisdiction as if such invalid or illegal
or unenforceable provision or part of a provision had never been contained
herein and such provision or part shall be reformed so that it would be valid,
legal and enforceable to the maximum extent permitted in such jurisdiction.
(j) This Agreement constitutes the entire agreement by and among the
parties with respect to the subject matter hereof and may not be modified
orally, but only by a writing subscribed by the party charged therewith.
(k) Each of the parties hereto agrees to execute all such further
instruments and documents and to take all such further action as are necessary
to effectuate the terms and purposes of this Agreement.
(l) Whenever notice is required to be given by any party hereunder,
such notice shall be deemed sufficient when delivered to the Company at its
address above and to each of the other Stockholders at such Stockholder's
address below or to such other address as the Stockholder shall have furnished
to the Company.
(m) Each party shall be entitled to rely conclusively upon any notice
received, or the failure to receive any notice, from any other party with
respect to rights and obligations under this Agreement.
8. RECEIPT OF STOCK CERTIFICATES.
Each Stockholder herewith acknowledges receipt of the certificate(s)
evidencing the Common Stock purchased by such Stockholder.
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IN WITNESS WHEREOF, each of the undersigned has signed this Agreement as of
the date first above written.
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SAFETY HOLDINGS, INC.
By: /s/A. Xxxxxxx Xxxxxx, Xx.
-------------------------------
Name: A. Xxxxxxx Xxxxxx, Xx.
Title: Vice President
STOCKHOLDERS:
XXXX X. XXXXXX XX REVOCABLE TRUST
By: /s/Xxxx X. Xxxxxx XX
-------------------------------
Name: Xxxx X. Xxxxxx XX
Title: Trustee
LEUCADIA INVESTORS, INC.
By: /s/Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title:
/s/Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
/s/Xxxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxxx
/s/Xxxx X. Max
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Xxxx X. Max
/s/A. Xxxxxxx Xxxxxx, Xx.
------------------------------------
A. Xxxxxxx Xxxxxx, Xx.
/s/Xxxx Xxxxxxxx
------------------------------------
Xxxx Xxxxxxxx
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/s/Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
/s/Xxxxxxx X. Xxxx
------------------------------------
Xxxxxxx X. Xxxx
/s/Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
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