Exhibit 10.7
THE SHARES SUBSCRIBED FOR HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE
RESOLD OR TRANSFERRED WITHOUT (1) REGISTRATION AND QUALIFICATION THEREUNDER OR
AN APPLICABLE EXEMPTION FOR SUCH RESALE OR TRANSFER, AND (2) THE PRIOR CONSENT
OF THE COMPANY AND COMPLIANCE WITH OTHER PROCEDURES SET FORTH IN THE
STOCKHOLDERS' AGREEMENT.
Investor: BNS Holding, Inc., a Delaware corporation
No. of Units: 26,400
SUBSCRIPTION AGREEMENT
1. SUBSCRIPTION FOR UNITS
1.1 The above listed Investor hereby subscribes to purchase the number
units (the "Units") set forth at the top of this page in Xxxxxxx I Holding
Corp., a Delaware corporation (the "Company"). Each unit shall consist of one
(1) share of common stock, par value $0.001 per share (the "Common Shares") and
a warrant at an exercise price of $0.001 per share and convertible to 1.4509
Common Shares (the "Issued Warrants"). The Investor acknowledges that the Common
Shares are subject to that certain Stockholders' Agreement, dated as of October
31, 2006, by and among the Company and its stockholders (the "Stockholders'
Agreement") and that the Issued Warrants are subject to that certain warrant
issued by the Company to the Investor dated as of October 31, 2006 (the
"Warrant"). Terms used but not specifically defined in this Agreement have the
same meanings given them in the Stockholders' Agreement.
1.2 The Investor is delivering to you, along with this executed
Subscription Agreement (the "Agreement"), a wire transfer in the sum of
Twenty-Nine Million Seven Hundred Thousand Dollars ($29,700,000).
1.3 The Investor understands that this subscription constitutes an
irrevocable offer to purchase Units which may not be revoked by it without the
written consent of the Company. The execution and delivery of this Agreement
will not constitute an agreement between the Company and the Investor until this
Agreement is specifically accepted in writing by a duly authorized officer on
behalf of the Company.
2. REPRESENTATIONS AND INVESTMENT STANDARDS
The Investor represents and warrants to the Company and agents that:
2.1 The Investor understands and has fully considered for purposes of
this investment that (a) the Company has no financial or operating history; (b)
the Units involve risk of total loss of its investment; (c) any anticipated
income tax or other legal consequences may not be available and may be adversely
affected by the adoption of new or amended laws, interpretations, rulings,
regulations or policies; and (d) there are substantial restrictions on the
transferability of the Units, there will be no public market for the Units and,
consequently, any attempt to liquidate its investment in the Company may be
difficult or impossible. The Investor has received, read and understood a copy
of the Stockholders' Agreement. The Investor also acknowledges that the
Company's sole investment purpose is to invest in assets of Xxxxxxx Industries,
Inc., a Missouri corporation ("Xxxxxxx") and that in making its decision to
invest in the Company the Investor has conducted its own due diligence of
Xxxxxxx. The Investor also acknowledges that it has had an opportunity to
discuss Collin's business, management and financial affairs with its management
and to obtain any additional information which the Investor has deemed necessary
or appropriate for deciding whether or not to purchase the Units in the Company.
The Investor accepts full responsibility for inquiring into all matters relating
to the Company which may be important to make an investment decision.
2.2 The Investor acknowledges that no representations or warranties,
oral or written, have been made by the Company or any agent or affiliate thereof
except as set forth in this Agreement. The Investor understands that no private
placement memorandum or other disclosure document is being prepared in
connection with the offer and sale of Units, and that this may increase its risk
of investing in the Company.
2.3 The Investor understands that the Company will rely upon the
statements it has made in this Agreement in determining whether to accept its
subscription.
2.4 The Investor is capable of evaluating the merits and risks of the
purchase of the Units and protecting its own interests in connection therewith,
and has sufficient knowledge and experience in financial and business matters
such that it is capable of utilizing the information made available to it in
connection with the offering of the Units, of evaluating the merits and risks of
an investment in the Units and of making an informed investment decision with
respect to Xxxxxxx.
2.5 The Investor understands that the transfer of Common Shares is
subject to substantial restrictions under the Stockholders' Agreement; that,
because the Common Shares have not been registered under the Securities Act of
1933 (the "Act") or qualified under applicable state securities laws, the Common
Shares cannot be sold unless they are subsequently registered under the Act and
qualified under applicable state securities laws, or unless resale is exempt
from registration and qualification thereunder; and that it must bear the
economic risk of ownership of the Common Shares for an indefinite period of
time.
2.6 The funds used for this investment are legally subject to the
Investor's management and control.
2.7 The Investor has not been contacted concerning the offer of Units
by means of any general solicitation or advertising such as any advertisement,
article, notice or other communication published in any newspaper, magazine, or
similar media, or broadcast over television or radio, or any seminar or meeting
whose attendees were invited by general solicitation or advertising.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY:
The Company represents and warrants:
3.1 The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the state of Delaware, and has all
corporate powers required to carry on its business as now conducted. The Company
is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the character of the property owned or
leased by it or the nature of its activities makes such qualification necessary.
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3.2 The issuance, sale and delivery of the Common Shares that are being
purchased by the Investors hereunder, and the reservation for issuance of the
shares underlying the Issued Warrants and the Warrants (the "Reserved Shares")
have been duly authorized by all required corporate action on the part of the
Company, and when issued, sold, and delivered in accordance with the terms
hereof for the consideration expressed herein, will be duly and validly issued,
fully paid and non-assessable. The Reserved Shares have been duly and validly
reserved for issuance and, upon issuance in accordance with the terms of the
Certificate of Incorporation and Bylaws of the Company, shall be duly and
validly issued, fully paid, and non-assessable. The Common Shares issued
hereunder (and the Reserved Shares) will be free and clear from any liens or
encumbrances other than those created by, or imposed upon, the holders thereof
through no action of the Company, other than restrictions on transfer under
state and/or federal securities laws and restrictions set forth herein. Issuance
of the Common Shares and the Reserved Shares will be free of statutory and
contractual preemptive rights. Upon the purchase of the shares by Investor, the
Company will have thirty-two thousand five hundred (32,500) shares of Common
Stock issued and outstanding.
3.3 The execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized, and no additional corporate or stockholder action is required
for the approval of this Agreement. This Agreement has been duly executed and
delivered and constitutes the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
3.4 The execution, delivery and performance by the Company of this
Agreement, and the consummation of the transactions contemplated by the Company
require no action by or in respect of, or filing with, any governmental body,
agency, official or authority.
3.5 The execution, delivery and performance by the Company of this
Agreement, and the consummation by the Company of the transactions contemplated
hereby do not and will not (a) contravene or conflict with the Certificate and
By-laws or any material agreement to which the Company is a party or by which it
is bound; (b) contravene or conflict with or constitute a material violation of
any provision of any law, regulation, judgment, injunction, order or decree
binding upon or applicable to the Company; (c) constitute a default (or would
constitute a default with notice or lapse of time or both) under or give rise to
a right of termination, cancellation or acceleration or loss of any benefit
under any material agreement, contract or other instrument binding upon the
Company or under any material license, franchise, permit or other similar
authorization held by the Company; or (d) result in the creation or imposition
of any Lien (as defined below) on any asset of the Company. For purposes of this
Agreement, the term "Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest, claim or encumbrance of any kind in respect
of such asset.
4. INVESTOR QUALIFICATIONS
The Investor understands that the representations contained below are
made for the purpose of qualifying the Investor as an accredited investor as
that term is defined by the Securities and Exchange Commission for the purpose
of inducing a sale of securities to the Investor. The undersigned hereby
represents that:
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4.1 The undersigned has been duly formed, is validly existing and is in
good standing under the laws of the jurisdiction of its formation, with full
power and authority to enter into the transactions contemplated by this
Agreement.
4.2 This Agreement has been duly and validly authorized, executed and
delivered and, if executed and delivered on behalf of the Company, will
constitute the valid, binding and enforceable agreement of the undersigned.
4.3 If the undersigned has been formed, reformed or recapitalized for
the specific purpose of purchasing the Units, or if the undersigned entity has
sought or is required to seek approval by or additional funds from its
beneficial owners in connection with this investment, then the undersigned shall
cause each shareholder, partner, or owner of a beneficial interest to complete
and return a copy of this Subscription Agreement.
5. AGREEMENTS OF INVESTOR
5.1 THE UNDERSIGNED AGREES THAT ALL OF ITS REPRESENTATIONS, STATEMENTS,
AGREEMENTS AND PROMISES SET FORTH IN THIS AGREEMENT CONSTITUTE LEGALLY BINDING
OBLIGATIONS WHICH SURVIVE ITS ADMISSION TO THE COMPANY. IF THERE IS ANY MATERIAL
CHANGE IN THE INFORMATION SET FORTH IN THIS AGREEMENT, THE INVESTOR WILL
IMMEDIATELY FURNISH SUCH REVISED OR CORRECTED INFORMATION TO THE COMPANY.
5.2 The Investor is acquiring the Units for own account for investment
and not with a view to the resale or other transfer of such Units or any
interest therein.
5.3 The Investor agrees to be bound by this Agreement, the
Stockholders' Agreement and the Warrant.
5.4 The Investor agrees to indemnify, defend and hold harmless the
Company from any loss, damage or liability (including attorneys' fees and other
expenses) due to or arising out of any breach of any of its representations or
promises contained in this Agreement.
5.5 Subject to procedures and restrictions on transferability of Units
under the Stockholders' Agreement or the Warrant, the Investor agrees not to
assign or otherwise transfer this Agreement or any interest therein.
5.6 The Investor hereby agrees that it shall keep confidential and
shall not disclose to any third-party any information directly or indirectly
disclosed to it regarding Xxxxxxx, except where such disclosure is required by
applicable securities laws.
6. GENERAL
6.1 All notices or other communications given or made hereunder shall
be in writing and shall be delivered or mailed, postage prepaid, to the
respective parties at the addresses set forth in the Subscription Agreement or
may be sent by email at the email address set forth below or by facsimile to any
phone number provided by the parties hereto. Each party may change its address
by notice given in accordance with this paragraph. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
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6.2 The Company agrees to indemnify, defend and hold harmless Investor
from any loss, damage or liability (including attorneys' fees and other
expenses) due to or arising out of any breach of any of its representations or
promises contained in this Agreement
6.3 This Subscription Agreement shall be construed under the laws of
the State of Delaware applicable to contracts made between residents of, and to
be performed in, Delaware.
6.4 Whenever the context so requires, the use of the singular shall be
deemed to include the plural and vice versa. Each gender shall be deemed to
include the other gender, and each shall include a corporation, partnership,
trust or other legal entity whenever the context so requires.
6.5 If any provision of this Subscription Agreement shall be held
invalid or unenforceable, the remaining provisions of this Agreement shall
continue in effect.
[The remainder of this page was intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement on the 31st day of October, 2006.
Name of Investor: BNS HOLDING, INC.
By /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, President and
Chief Executive Officer
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
AGREED AND ACCEPTED AS OF THE DATE SET FORTH ABOVE:
Xxxxxxx I Holding Corp.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Vice President
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