EXHIBIT 10.12
SUBSCRIPTION AGREEMENT
FOR ACCREDITED INVESTOR
(NON-EMPLOYEE PURCHASER)
This SUBSCRIPTION AGREEMENT (this "AGREEMENT"), dated as of June 14,
2000, is entered into by and among Cherokee International, LLC, a California
limited liability company (the "COMPANY"), and the person or entity whose
name appears on the signature page attached hereto (such person or entity
being referred to herein as the "PURCHASER").
The Management Committee of the Company (the "MANAGEMENT COMMITTEE")
has determined that the Purchaser is to be granted the right to purchase the
number and class of the Company's units indicated on the signature page
attached hereto (the "UNITS"), on the terms and conditions set forth herein,
and hereby grants such right.
1. PURCHASE AND SALE OF SECURITIES.
(a) PURCHASE AND SALE. Subject to the terms and conditions
hereof, the Company hereby agrees to issue and sell to the Purchaser, and the
Purchaser hereby irrevocably agrees to subscribe for and purchase from the
Company, that number and class of Units set forth below the name of the
Purchaser on the signature page attached hereto (the "PURCHASE COMMITMENT").
The purchase price per Unit as set forth on the signature page attached
hereto. The obligations of the Purchaser hereunder shall be complete and
binding upon the execution and delivery hereof.
(b) THE CLOSING. The closing of the purchase and sale of the
Units contemplated by this Agreement (the "CLOSING") shall take place at 0000
Xxx Xxxxxx, Xxxxxx, Xxxxxxxxxx at 10:00 a.m. on the date hereof (the "CLOSING
DATE"). At the Closing, the Company shall deliver to the Purchaser
certificates evidencing the Units purchased by the Purchaser and the
Purchaser shall deliver an amount equal to the Purchase Commitment by check
payable in next day funds or by wire transfer of same day funds.
2. REPRESENTATIONS OF THE PURCHASER. The Purchaser represents and
warrants to the Company as follows:
(a) AUTHORITY. The Purchaser has the legal capacity and authority
to execute, deliver and perform its obligations under this Agreement.
(b) BINDING OBLIGATION. This Agreement and the Second Amended and
Restated Operating Agreement, as amended (the "OPERATING AGREEMENT"), are
legal, valid and binding obligations of the Purchaser, enforceable in
accordance with their terms, except that the enforcement thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and to general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(c) RECEIPT OF INFORMATION. The Purchaser has received and
reviewed this Agreement, the Operating Agreement and all such information as
he or she deems necessary and appropriate to enable him or her to evaluate
the financial risk inherent in making an investment in the Units, has had
access to officers and other representatives of the Company and has received
satisfactory and complete information concerning the business and financial
condition of the Company in response to all inquiries in respect thereof.
(d) INVESTMENT REPRESENTATIONS.
(i) The Purchaser is acquiring the Units
purchased hereunder with his or her own funds for investment,
for his or her own account, and not with a view to the sale or
distribution of all or any part thereof in any transaction
that would be in violation of the securities laws of the
United States, and he or she has no present intention of
selling, transferring or otherwise distributing any of the
Units. The Purchaser does not have any contract, undertaking,
agreement or arrangement with any person, firm, entity or
corporation to sell, transfer or otherwise distribute any
Units to such person, firm, entity or corporation.
(ii) The Purchaser understands that the
Units purchased hereunder will not be registered under the
United States
Securities Act of 1933, as amended (the "ACT"), in part based
upon an exemption from registration predicated on the accuracy
and completeness of his or her representations and warranties
appearing herein. The Purchaser understands and acknowledges
that, as a result, he or she will not be permitted to sell,
transfer or assign any of the Units acquired hereunder until
such Units are registered or an exemption from the
registration and prospectus delivery requirements of the Act
is available. The Purchaser acknowledges that there is no
assurance that such an exemption from registration will ever
be available or that the Units will ever be able to be sold.
(iii) The Purchaser agrees that in no event
will he or she make a disposition of any Units or any interest
therein, unless such disposition is in compliance with the
Operating Agreement.
(iv) The Purchaser does not require the
assistance of an investment advisor or other purchaser
representative to participate in the transactions contemplated
by this Agreement; has such knowledge and experience in
financial and business matters as to be capable of evaluating
the merits and risks of his or her investment in the Company;
has the ability to bear the economic risks of its investment
for an indefinite period of time; can afford the complete loss
of its investment; and recognizes that an investment in the
Units involves substantial risk. The Purchaser is an
"Accredited Investor," as such term is defined in Rule 501 of
Regulation D promulgated under the Act.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Purchaser as follows:
(a) ORGANIZATION, AUTHORITY, ETC. The Company is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of California and has all requisite limited liability
company power and authority to own or lease and operate its properties and
assets and to carry on its business as now conducted. The Company has all
requisite limited liability company power and authority to enter into this
Agreement, to issue the Units and to perform its obligations hereunder.
(b) ACTS AND PROCEEDINGS. The execution and delivery of this
Agreement and the transactions contemplated hereby have been duly and validly
authorized, and all necessary company action has been taken to make this
Agreement a legal, valid and binding obligation of the Company, enforceable
in accordance with its terms, except that the enforcement thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect
relating to creditors' rights generally and to general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(c) VALID ISSUANCE. When issued and paid for by the Purchaser, as
provided for herein, the Units purchased hereunder will be duly and validly
issued.
4. CONDITIONS TO OBLIGATIONS OF THE PURCHASER. The Purchaser's
obligation to purchase and pay for the Purchaser's Purchase Commitment at the
Closing is subject to the fulfillment (or waiver by the Purchaser), prior to or
at the time of the Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 3 hereof shall be true and
correct in all material respects when made and at the time of the Closing.
(b) PERFORMANCE. The Company shall have duly performed and
complied in all material respects with all agreements and conditions
contained in this Agreement required to be performed or complied with by it
prior to or at the Closing.
5. CONDITIONS TO OBLIGATIONS OF COMPANY. The obligations of the
Company to issue and sell the Units to be purchased by the Purchaser at the
Closing are subject to the fulfillment (or waiver by the Company), prior to
or at the time of the Closing, of the following conditions:
(a) OPERATING AGREEMENT. The Purchaser shall have agreed in a
writing acceptable to the Company to be bound by the Operating Agreement.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Purchaser in Section 2 hereof shall be true and
correct in all material respects when made and at the time of the Closing.
(c) PERFORMANCE. The Purchaser shall have duly performed and
complied in all material respects with all agreements and conditions
contained in this Agreement required to be performed or complied with by the
Purchaser prior to or at the Closing.
6. LEGENDS. All certificates evidencing the Units purchased and sold
hereunder shall bear substantially the following legend:
(a) THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), NOR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS IN RELIANCE ON
EXEMPTIONS THEREFROM. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE AND MAY NOT BE
SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT
AND THE REGULATIONS PROMULGATED PURSUANT THERETO (UNLESS EXEMPT THEREFROM)
AND COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS AND REGULATIONS.
(b) THE MEMBERSHIP UNITS/INTERESTS REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE TERMS OF THAT CERTAIN PLEDGE AGREEMENT BETWEEN
THE ORIGINAL PURCHASER OF THE UNITS AND XXXXXX FINANCIAL, INC., AS AGENT FOR
CERTAIN LENDERS, INCLUDING, WITHOUT LIMITATION, LIMITATIONS ON THE
RIGHTS/ABILITY OF ANY HOLDER (INCLUDING ANY SUCCESSOR HOLDER) HEREOF TO VOTE,
SELL, PLEDGE HYPOTHECATE OR OTHERWISE TRANSFER THE MEMBERSHIP UNITS/INTERESTS
REPRESENTED BY THIS CERTIFICATE, AND TO VOTE AND/OR RECEIVE DISTRIBUTIONS
WITH RESPECT TO THE MEMBERSHIP UNITS/INTERESTS REPRESENTED BY THIS
CERTIFICATE, AND REFERENCE IS HEREBY MADE TO SUCH PLEDGE AGREEMENT FOR A FULL
STATEMENT OF SUCH TERMS. A COPY OF THE PLEDGE AGREEMENT IS AVAILABLE FOR
INSPECTION AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED BY
THE COMPANY TO THE HOLDER HEREOF AT NO COST UPON WRITTEN REQUEST.
(c) THE UNITS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
FURTHER RESTRICTIONS ON TRANSFER, ALL AS SET FORTH IN SECOND AMENDED AND
RESTATED OPERATING AGREEMENT OF THE COMPANY, AS AMENDED, A COPY OF WHICH IS
ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY.
(d) THE SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL BE
SECURITIES GOVERNED BY ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT
IN THE STATE OF
CALIFORNIA AS PROVIDED PURSUANT TO SECTION 8-103 THEREOF.
(e) Any legend required to be placed thereon by any applicable
state, foreign, provincial or local securities law.
7. MISCELLANEOUS.
(a) AMENDMENT. Neither this Agreement nor any provision hereof
may be changed, waived, discharged or terminated orally or by course of
dealing, but only by a statement in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, air courier,
or facsimile:
(i) If to the Purchaser, addressed to it at
the address set forth on the signature page attached hereto,
or at such other address as the Purchaser may specify by
written notice to the Company; or
(ii) If to the Company:
Cherokee International, LLC
0000 Xxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile No: (000) 000-0000
Attn: Xxxx Xxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx
and
GFI Energy Ventures LLC
00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attn: Xxx Xxxxxxxx
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; one business day after being
timely dispatched, delivery prepaid, if by overnight air courier; and when
receipt acknowledged, if sent by facsimile transmission. Any of the above
addresses may be changed by notice made in accordance with this subsection.
(c) SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto,
including the Purchaser's estate, successors and beneficiaries; PROVIDED,
HOWEVER, that this Agreement may not be assigned by the Purchaser without the
prior written consent of the Company.
(d) HEADINGS. The headings of the sections and paragraphs of this
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
(e) APPLICABLE LAW; FORUM SELECTION. This Agreement is governed
by and shall be construed in accordance with the laws of the State of
California. By executing this Agreement, each party hereto submits to the
jurisdiction of the courts of California for purposes of adjudicating its
rights or the rights of the other parties with respect to this Agreement.
Each party hereto hereby irrevocably waives, to the extent permitted by
applicable law, any objection, including, without limitation, any objection
to the laying of venue or based on the grounds of FORUM NON CONVENIENS, which
it may now or hereafter have to the bringing of any action or proceeding in
such jurisdiction in respect of this Agreement. Each party hereby agrees to
accept, at the address referred to in Section 7(b) hereof, service of process
in any legal action or proceeding instituted by any party in the courts of
California with respect to this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) ENTIRE AGREEMENT. This Agreement is intended by the parties
as a final expression of their agreement, and are intended to
be a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
CHEROKEE INTERNATIONAL, LLC
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: President
PURCHASER:
CHEROKEE INVESTOR PARTNERS, LLC
By: /s/ Xxx Xxxxxxxx
-----------------------------
Name: Xxx Xxxxxxxx
Title: President
Address:
Telephone:
Facsimile:
Purchase Price
Number of Class A Units Per Class A Unit
23,306 $7.14
Purchase Price
Number of Class B Units Per Class B Unit
2,884,162 $5.71
