SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of _______________, 2005
(this "Agreement"), between Xxx X. Xxxxxx (the "Director Investor") and
Xxxxxx-Standard Holdings Inc., a Delaware corporation (the "Company").
WHEREAS, on the terms and subject to the conditions set forth
below, the Director Investor desires to subscribe for and acquire from the
Company, and the Company desires to issue and sell to the Director Investor, the
number of shares of common stock, par value $0.01 per share (the "Common
Stock"), of the Company set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein, the adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. The term "control" means, with respect to any Person, the power
to direct or cause the direction of the management or policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble hereto.
"Assumption Agreement" means the Assumption Agreement,
substantially in the form of Exhibit A hereto
"Business Day" means any day other than a Saturday, Sunday or
day on which commercial banks in New York, New York are authorized or
required by law to remain closed.
"Closing" has the meaning set forth in Section 3 below.
"Closing Date" has the meaning set forth in Section 3 below.
"Common Stock" has the meaning set forth in the preamble
hereto.
"Company" has the meaning set forth in the preamble hereto.
"Director Investor" has the meaning assigned to such term in
the preamble hereto.
"Governmental Body" means any government or governmental or
regulatory body thereof, or political subdivision thereof, of any
country or subdivision thereof, whether international, supranational,
national, federal, state or local, or any agency or
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instrumentality thereof, or any court or regulatory (including a stock
exchange or other self-regulatory body) authority or agency.
"Person" means any individual, corporation, limited liability
company, limited or general partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, government or
any agency or political subdivisions thereof or any group comprised of
two or more of the foregoing.
"Purchase Price" has the meaning set forth in Section 2 below.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of December 23, 2004, by and among the Company and
each of the stockholders of the Company whose name appears on the
signature pages listed therein.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Stockholders Agreement" means the Stockholders Agreement,
dated as of December 23, 2004, by and among the Company and each of the
stockholders of the Company whose name appears on the signature pages
listed therein.
2. Subscription for and Purchase of the Common Stock. Pursuant
to the terms and subject to the conditions set forth in this Agreement, the
Director Investor hereby subscribes for and agrees to purchase, and the Company
hereby agrees to issue and sell to the Director Investor, on or within 90 days
following the date hereof, up to 2,500 shares of Common Stock (the "Shares") at
a purchase price per share equal to $100 per share (the "Purchase Price"). For
purposes of this Agreement, the purchase price per share shall be subject to
adjustment for any stock dividends, combinations, splits or the like subsequent
to the date hereof and prior to the Closing.
3. The Closing. The closing (the "Closing") of the issuance
and sale of the Shares shall take place on a mutually agreed upon date (the
"Closing Date ") on or within 90 days following the date hereof. The Closing
shall occur at the main offices of the Company, unless an alternative location
is mutually agreed upon. At the Closing, the following shall occur:
(a) the Director Investor shall deliver to the Company the
Purchase Price payable by delivery to the Company of such amount by
wire transfer of immediately available funds or a certified check
payable to the Company as consideration for the Shares to be issued
hereunder; and
(b) the Company shall duly issue the Shares to be received by
the Director Investor pursuant to Section 2, and shall deliver to the
Director Investor stock certificates representing the Shares purchased
by the Director Investor.
4. Stockholders Agreement and Registration Rights Agreement.
On the Closing Date, the Director Investor shall execute and deliver the
Assumption Agreement. The Shares will be issued subject to the rights and
restrictions set forth in the Assumption Agreement and the Stockholders
Agreement and the Registration Rights Agreement, as set forth therein.
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5. Representations and Warranties of the Company. The Company
represents and warrants to the Director Investor as follows:
(a) (i) the Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder, and
(ii) this Agreement has been duly authorized, executed and delivered by
the Company and is valid, binding and enforceable against the Company
in accordance with its terms;
(b) the Shares to be issued to the Director Investor pursuant
to this Agreement, when issued and delivered in accordance with the
terms hereof, will be duly and validly issued and, upon receipt by the
Company of the Purchase Price therefor, will be fully paid and
nonassessable with no personal liability attached to the ownership
thereof and will not be subject to any preemptive rights and
restrictions on transfer other than under applicable securities laws,
the terms of this Agreement or the Stockholders Agreement;
(c) the execution, delivery and performance by the Company of
this Agreement will not (i) conflict with the certificate of
incorporation or by-laws of the Company, (ii) result in any material
breach of any terms or provisions of, or constitute a material default
under, any material contract, agreement or instrument to which the
Company is a party or by which the Company is bound, (iii) violate any
United States federal or state law, rule or regulation applicable to
the Company or (iv) require any consent, waiver, approval, order,
permit or authorization of, or declaration or filing with, or
notification or report to, any Governmental Body; and
(d) the transactions contemplated by this Agreement do not
violate any "blue sky" or other securities law of any jurisdiction or
require the Company to file a registration statement with the SEC or
apply to qualify any securities under the "blue sky" or other
securities law of any jurisdiction.
6. Representations and Warranties of the Director Investor.
The Director Investor represents and warrants to the Company as follows:
(a) (i)(x) the Director Investor is over 21 years of age, (y)
the address set forth in Section 9(a)(2) hereof is the true and correct
address and residence of the Director Investor, and (z) the Director
Investor has no current intention of becoming a resident of any other
state or jurisdiction in the foreseeable future and (ii) this Agreement
has been, duly authorized, executed and delivered by the Director
Investor and is valid, binding and enforceable against the Director
Investor in accordance with its terms;
(b) the execution, delivery and performance by the Director
Investor of this Agreement will not (i) result in any material breach
of any terms or provisions of, or constitute a material default under,
any material contract, agreement or instrument to which the Director
Investor is a party or by which the Director Investor is bound, (ii)
violate any United States federal or state law, rule or regulation
applicable to the Director Investor or (iii) except as set forth on
Schedule 6(b), require any consent,
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waiver, approval, order, permit or authorization of, or declaration or
filing with, or notification or report to, any Governmental Body;
(c) the Director Investor is acquiring the Shares for
investment solely for investment for its own account and not with a
view to, or for sale in connection with, the distribution or other
disposition thereof;
(d) the Director Investor has been advised by the Company
that:
(i) the offer and sale of the Shares have not
been registered under the Securities Act;
(ii) there is no established market for the
Shares and it is not anticipated that there
will be any public market for the Shares in
the foreseeable future;
(iii) Rule 144 promulgated under the Securities
Act is not presently available with respect
to the sale of any securities of the
Company;
(iv) when and if shares of the Shares may be
disposed of without registration under the
Securities Act in reliance on Rule 144, such
disposition can be made only in limited
amounts in accordance with the terms and
conditions of Rule 144;
(v) if the Rule 144 exemption is not available,
the offer or sale of the Shares without
registration will require compliance with
some other exemption under the Securities
Act;
(vi) a restrictive legend in the form heretofore
set forth in the Stockholders Agreement
shall be placed on the certificates
representing the Shares; and
(vii) a notation shall be made in the appropriate
records of the Company indicating that the
Shares are subject to restrictions on
transfer and, if the Company should at some
time in the future engage the services of a
securities transfer agent, appropriate
stop-transfer instructions will be issued to
such transfer agent with respect to the
Shares.
(e) (i) the Director Investor's financial situation is such
that it can afford to bear the economic risk of holding the Shares for
an indefinite period of time, has adequate means for providing for its
current needs and personal contingencies, and can afford to suffer a
complete loss of its investment in the Shares; (ii) the Director
Investor's knowledge and experience in financial and business matters
are such that it is capable of evaluating the merits and risks of the
investment in the Shares; (iii) the Director Investor understands that
the Shares are a speculative investment which involves a high degree of
risk of loss of its investment therein, there are substantial
restrictions on the transferability of the Shares, and, on the Closing
Date and for an indefinite period
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following the Closing, there will be no public market for the Shares
and, accordingly, it may not be possible for the Director Investor to
liquidate its investment in case of emergency or otherwise; (iv) the
Director Investor understands and has taken cognizance of all the risk
factors related to the purchase of the Shares, and, other than as set
forth in this Agreement, no representations or warranties have been
made to the Director Investor or its representatives concerning the
Shares or the Company or their prospects or other matters; (v) the
Director Investor has been given the opportunity to examine all
documents and to ask questions of, and to receive answers from, the
Company and its representatives concerning the Company and its
subsidiaries and the terms and conditions of the purchase of the Shares
and to obtain all additional information which the Director Investor or
its representatives deems necessary; (vi) in making its decision to
purchase the Shares hereby subscribed for, the Director Investor has
relied upon independent investigations made by it and, to the extent
believed by it to be appropriate, its representatives, including its
own professional, financial, tax and other advisors; and (vii) the
Director Investor is an "accredited investor" within the meaning of
Rule 501 of Regulation D under the Securities Act.
(f) The Director Investor has an understanding of the Company
and its business. The Director Investor has been given the opportunity
to obtain any additional information or documents (and to ask questions
and receive answers about such information and documents) about the
Company and its business which the Director Investor deems necessary to
evaluate the merits and risks related to its investment in the shares
of Common Stock.
7. Covenants of the Company and the Director Investor.
(a) Further Assurances. Each of the parties shall, and shall
cause their respective Affiliates under their control to, execute such
instruments and take such action as may be reasonably required or
desirable to carry out the provisions hereof and the transactions
contemplated hereby.
8. Condition Precedent to Closing. The obligations of the
Company and the Director Investor to consummate the Closing are subject to the
satisfaction or written waiver by both the Company and the Director Investor on
or prior to the Closing Date of the following condition:
(i) no laws shall have been adopted or promulgated, and
no temporary restraining order, preliminary or
permanent injunction or other order issued by a court
or other Governmental Body of competent jurisdiction
shall be in effect, having the effect of making the
purchase of the Shares by the Director Investor and
the other transactions contemplated hereby illegal or
otherwise prohibiting consummation thereof.
9. Miscellaneous.
(a) Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively
given: (a) upon personal
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delivery to the party to be notified; (b) when sent by confirmed
facsimile if sent during normal business hours of the recipient, if
not, then on the next Business Day, provided that a copy of such notice
is also sent via nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt; (c) five (5)
days after having been sent by registered or certified mail, return
receipt requested, postage prepaid; or (d) one (1) Business Day after
deposit with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt. All communications
shall be sent to such party's address as set forth below or at such
other address as the party shall have furnished to each other party in
writing in accordance with this provision:
(1) If to the Company:
Xxxxxx-Standard Holdings Inc.
c/o Cooper-Standard Automotive Inc.
00000 Xxxxxxx Xxxx Xxxxx Xxxxx
Xxxx, XX 00000
Attn: General Counsel
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
(2) If to the Director Investor:
Xxx X. Xxxxxx
000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Any party may, by notice given in accordance with this Section
9(a), designate another address or person for receipt of notices hereunder.
(b) Amendment and Waiver.
(i) No failure or delay on the part of any party hereto
in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power
or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or
remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that
may be available to the parties hereto at law, in
equity or otherwise.
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(ii) Any amendment, supplement or modification of or to
any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any
departure by any party from the terms of any
provision of this Agreement, shall be effective
against a party to this Agreement only if it is made
or given in writing and signed by such party.
(c) Specific Performance. Each party hereto acknowledges that
money damages would not be an adequate remedy in the event that any of
the covenants or agreements in this Agreement are not performed in
accordance with its terms, and it is therefore agreed that in addition
to and without limiting any other remedy or right it may have, the
non-breaching party will have the right to an injunction, temporary
restraining order or other equitable relief in any court of competent
jurisdiction enjoining any such breach and enforcing specifically the
terms and provisions hereof.
(d) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(e) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision or any other
jurisdiction, but this Agreement shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
(f) Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement together with the Stockholders Agreement and the
Registration Rights Agreement embodies the complete agreement and
understanding among the parties hereto with respect to the subject
matter hereof and supersedes and preempts any prior understandings,
agreements or representations by or among the parties, written or oral,
that may have related to the subject matter hereof in any way.
(g) Expenses. Each of the parties hereto shall bear its own
expenses (including fees and disbursements of counsel, accountants and
other experts) incurred by it in connection with the preparation,
negotiation, execution, delivery and performance hereof, each of the
other documents and instruments executed in connection herewith or
contemplated hereby and the consummation of the transactions
contemplated hereby and thereby.
(h) GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. THIS
AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE. Any claim arising out of or
relating to this Agreement may be instituted in Federal or State court
in the State of New York (unless personal or subject matter
jurisdiction cannot be obtained therein), and each party agrees not to
assert, by way of motion, as a defense or otherwise, in any such claim,
that it is not
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subject personally to the jurisdiction of such court, that the claim is
brought in an inconvenient forum, that the venue of the claim is
improper or that this Agreement or the subject matter hereof may not be
enforced in or by such court. Each party further irrevocably submits to
the jurisdiction of such courts in any such claim. Any and all service
of process and any other notice in any such claim shall be effective
against any party if given personally or by registered or certified
mail, return receipt requested, or by any other means of mail that
requires a signed receipt, postage prepaid, mailed to such party as
herein provided. Nothing herein contained shall be deemed to affect the
right of any party to serve process in any manner permitted by law or
to commence legal proceedings or otherwise against any other party in
any other jurisdiction.
(i) No Recourse. Notwithstanding anything else that may be
expressed or implied in this Agreement, the Director Investor hereby
covenants, agrees and acknowledges that no recourse under this
Agreement or any documents or instruments delivered in connection with
this Agreement or any of the transactions contemplated hereby shall be
had against any current or future director, officer, employee, general
or limited partner, member or Affiliate (including The Cypress Group
L.L.C. and GS Capital Partners 2000, L.P.) of the Company or of any of
the foregoing, whether by the enforcement of any assessment or by any
legal or equitable proceeding, or by virtue of any statute, regulation
or other applicable law, it being expressly agreed and acknowledged
that no personal liability whatsoever shall attach to, be imposed on or
otherwise be incurred by any current or future officer, agent or
employee of the Company or any current or future stockholder of the
Company or any current or future director, officer, employee, general
or limited partner, member or Affiliate (including The Cypress Group
L.L.C. and GS Capital Partners 2000, L.P.) of any of the foregoing, as
such, for any obligation of the Company under this Agreement or any
documents or instruments delivered in connection with this Agreement or
any of the transactions contemplated hereby or for any claim based on,
in respect of or by reason of such obligations of the Company or their
creation.
(j) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective
permitted successors and assigns, including Permitted Transferees (as
defined in the Stockholders Agreement) of the Director Investor. Unless
otherwise specifically provided for herein, this Agreement is not
assignable.
(k) Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.
This Agreement may be executed by facsimile signature(s).
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Agreement on the date first written above.
XXXXXX-STANDARD HOLDINGS INC.
By:
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Name:
Title:
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Xxx X. Xxxxxx
Exhibit A
ASSUMPTION AGREEMENT
Pursuant to the Stockholders Agreement, dated as of December
23, 2004 (the "Stockholders Agreement"), by and among Xxxxxx-Standard Holdings
Inc. (f/k/a CSA Acquisition Corp.), a Delaware corporation (the "Company"), and
each of the stockholders of the Company whose name appears on the signature
pages listed therein (each, a "Stockholder" and collectively, the
"Stockholders"), and the Registration Rights Agreement, dated as of December 23,
2004, by and among the Company and the Stockholders, the undersigned hereby
agrees that, having been issued Common Stock and granted stock options to
purchase shares of Common Stock, the undersigned hereby agrees to be a party to
the Stockholders Agreement and the Registration Rights Agreement and agrees to
be bound by the provisions thereof (including with respect to shares of Common
Stock issued or options granted following the date hereof), in all cases having
the status a Stockholder who is a Director Stockholder . Such agreement shall
become effective with respect to any shares of Common Stock hereafter acquired
by the undersigned by exercise of options or otherwise. Capitalized terms used
but not defined herein shall have the meanings assigned to them in the
Stockholders Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
Assumption Agreement as of __________ __, 2005.
XXX X. XXXXXX
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Address:
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Telecopy: (___) ___-____
Acknowledged by:
XXXXXX-STANDARD HOLDINGS INC.
By:
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Name:
Title:
