FORM OF SUBSCRIPTION AGREEMENT
Exhibit 10.12
FORM OF SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this “Agreement”), dated as of , 20 , is
entered into by and between the undersigned (“Investor”) and Booz Xxxxx Xxxxxxxx Holding
Corporation, a Delaware corporation (the “Corporation”).
RECITALS
WHEREAS, Investor desires to subscribe for, and the Corporation desires to make available for
purchase, the shares of the Corporation’s Class A Common Stock, par value $0.01 per share (the
“Shares”), indicated as being subscribed for by Investor on Schedule 1 hereto on the terms
and conditions set forth below; and
WHEREAS, the Corporation, Explorer Coinvest LLC, a Delaware limited liability company, and the
other stockholders of the Corporation have entered into a stockholders agreement, dated as of July
30, 2008, in the form attached as Exhibit A hereto (the “Stockholders Agreement”).
NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual
representations, warranties, covenants and agreements contained herein and for other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
AGREEMENT
Section 1. Purchase and Sale of Shares.
1.1. General. Subject to all of the terms and conditions of this Agreement, and in
reliance upon the representations and warranties contained herein, Investor hereby subscribes for
and agrees to purchase, and the Corporation hereby agrees to sell to Investor for Investor’s own
account, the number of Shares set forth opposite Investor’s name on Schedule 1 hereto.
1.2. Purchase Price. The purchase price per Share shall be $ (the “Purchase
Price”).
1.3. Consideration. At the Closing (as defined below), Investor shall purchase the
Shares for the amount set forth as the “Aggregate Purchase Price” on Schedule 1 (such amount, the
“Consideration”). The Consideration shall be paid by Investor at the Closing in cash
(payable by wire transfer of immediately available funds to an account designated by the
Corporation).
Section 2. The Closing.
2.1. Time and Place. The closing (the “Closing”) of the sale shall occur
within ten (10) business days following the execution of this Agreement or such later date as the
parties hereto may mutually agree upon in writing (the “Closing Date”). The Closing shall
take place at the offices of the Corporation, or such other place as the parties hereto may
mutually agree upon in writing.
2.2. Delivery by the Corporation. At the Closing, against delivery of the
Consideration, the Corporation will deliver to Investor (i) a stock certificate registered in
Investor’s name and representing the number of Shares purchased by Investor and (ii) the
Stockholders Agreement duly executed by the Corporation.
2.3. Delivery by Investor. At the Closing, Investor will deliver (i) the
Consideration as provided in Section 1.3 and (ii) the Stockholders Agreement duly executed by
Investor.
Section 3. Representations and Warranties of the Corporation. The Corporation hereby
represents and warrants to Investor as of the date hereof and as of the Closing Date as follows:
3.1. Corporate Form. The Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to own or lease and operate its properties and to carry on its
business as now conducted.
3.2. Corporate Authority. The Corporation has all requisite corporate power and
authority to enter into this Agreement, to perform all of its obligations hereunder, to carry out
the transactions contemplated hereby and to issue the Shares. The Shares, when issued, delivered
and paid for in accordance with the terms hereof, will be duly and validly issued, fully paid and
nonassessable.
3.3. Actions Authorized. The Corporation has taken all corporate actions necessary
to authorize it to enter into this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Corporation and, assuming due authorization, execution and delivery of this
Agreement by the Investor, constitutes a legal, valid and binding obligation of the Corporation
enforceable in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors’ rights
generally and by general equitable principles (regardless of whether enforceability is considered
in a proceeding in equity or at law).
Section 4. Representations and Warranties of Investor. Investor hereby represents and
warrants to the Corporation as of the date hereof and as of the Closing Date as follows:
4.1. Organization. The Investor is a natural person, competent to enter into a
contractual obligation and a citizen of the United States of America. The principal place of
business or principal residence of Investor is as shown in Section 11(b) of this Agreement.
4.2. Authority. Investor has all requisite power and authority to execute and deliver
this Agreement, to perform his or her obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and delivered by Investor
and, assuming the due authorization, execution and delivery by the Corporation, constitutes a
legal, valid and binding obligation of Investor, enforceable against Investor in accordance with
its terms.
2
4.3. Investor Intent/Financial Status. Investor is (i) acquiring the Shares for
investment for Investor’s own account, not as a nominee or agent, and not with the view to, or for
resale in connection with, any distribution thereof; (ii) an “accredited investor” within the
meaning of Regulation D, Rule 501(a), promulgated under the Securities Act; and (iii) sophisticated
in financial matters and is able to evaluate the risks and benefits of the investment in the
Corporation, and is able to bear the economic risks of an investment in the Corporation for an
indefinite period and could afford a complete loss of such investment. Investor has been granted
the opportunity to ask questions of, and receive answers from, representatives of the Corporation
concerning the Corporation and the terms and conditions of the Shares and to obtain any additional
information that Investor deems necessary to verify the accuracy of the information so provided.
[Investor is a Director/officer of the Corporation.]
4.4. No Conflicts; No Consents. The execution and delivery by Investor of this
Agreement, the consummation of the transactions contemplated hereby and the performance of
Investor’s obligations hereunder do not and will not (a) materially conflict with or result in a
material violation or breach of any term or provision of any Law applicable to either Investor or
the Shares or, (b) violate in any material respect, conflict with in any material respect or result
in any material breach of, or constitute (with or without notice or lapse of time or both) a
material default under, or require either Investor to obtain any consent, approval or action of,
make any filing with or give any notice to any Person as a result or under the terms of, any
contract, agreement, instrument, commitment, arrangement, or understanding to which Investor is a
party.
Section 5. Agreements and Acknowledgements of Investor. Investor hereby agrees and
acknowledges to the Corporation as follows:
5.1. No Registration. Investor understands and agrees that the Shares are being
acquired by Investor in a transaction not involving any public offering within the meaning of the
Securities Act, in reliance on an exemption therefrom. Investor understands that the Shares have
not been and will not be approved or disapproved by the Securities and Exchange Commission or by
any other federal, state or foreign agency, and that no such agency has passed on the accuracy or
adequacy of disclosures made to Investor by the Corporation. No federal, state or foreign
governmental agency has passed on or made any recommendation or endorsement of the Shares or an
investment in the Corporation.
5.2. Limitations on Disposition and Resale. Investor understands and acknowledges
that the Shares have not been, and, except as set forth in the Stockholders Agreement, will not be,
registered under the Securities Act, or the securities laws of any state or foreign jurisdiction
and, unless the Shares are so registered, they may not be offered, sold, transferred or otherwise
disposed of except pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and any applicable securities laws of any state or
foreign jurisdiction. Investor agrees not to, directly or indirectly, offer, sell, transfer,
pledge, hypothecate or otherwise dispose of the Shares unless the Shares have been so registered or
an exemption from the requirement of registration is available under the Securities Act and any
applicable state or foreign securities laws. Investor further acknowledges and agrees that his,
her or its ability to dispose of the Shares will be subject to restrictions contained in the
Stockholders Agreement. Investor recognizes that there will not be any public trading market for
the Corporation’s Common Stock and, as a result, Investor may be unable to sell or
3
dispose of his, her or its interest in the Corporation indefinitely and must continue to bear
the economic risk of the investment in the Corporation. Investor further acknowledges and agrees
that, except as may be set forth in the Stockholders Agreement, the Corporation shall have no
obligation to register shares of the Corporation’s Common Stock.
5.3. Legend. Investor acknowledges and agrees that the Shares received hereby and
represented by physical certificate(s) will bear the following legend (or one to substantially
similar effect):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“ACT”), OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
AND SAID LAWS OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
THEREOF.”
“THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AND CERTAIN OTHER AGREEMENTS SET FORTH IN
THE STOCKHOLDERS AGREEMENT BETWEEN THE ISSUER AND THE STOCKHOLDERS
OF THE ISSUER, DATED AS OF JULY 30, 2008. A COPY OF SUCH AGREEMENT
SHALL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF
UPON WRITTEN REQUEST.”
5.4. Stockholders Agreement. Investor acknowledges and agrees that all Shares shall
be subject to the terms and provisions of the Stockholders Agreement and Investor further
acknowledges and agrees that, under the provisions of the Stockholders Agreement, the Shares are
subject to repurchase by the Corporation from Investor based upon actions by or events involving
Investor.
Section 6. Conditions Precedent. The obligations of the Corporation and Investor to
consummate the transactions contemplated hereby shall be subject to the fulfillment on or prior to
the Closing Date of the following conditions:
6.1. The obligations of the Investor to consummate the transactions contemplated hereby are
subject to the representations and warranties of the Corporation set forth herein being true and
correct in all material respects as of the Closing Date.
6.2. The obligations of the Corporation to consummate the transactions contemplated hereby are
subject to (1) Investor having entered into the Stockholders Agreement, (2) the representations and
warranties of Investor set forth herein being true and correct in all material respects as of the
Closing Date, and (3) receipt of written approval by the Management Directors (as defined in the
Stockholders Agreement) that the issuance and sale of the Shares to
4
Investor is not subject to the preemptive rights contained in Section 10 of the Stockholders
Agreement.
Section 7. Attorneys’ Fees. In the event of any litigation or other legal proceeding
involving the interpretation of this Agreement or enforcement of the rights or obligations of the
parties hereto, the prevailing party or parties shall be entitled to recover reasonable attorneys’
fees and expenses in addition to any other available remedy.
Section 8. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the Laws of the State of Delaware, without giving effect to the conflict or choice
of law provisions thereof that would give rise to the application of the domestic substantive law
of any other jurisdiction.
Section 9. Jurisdiction. Except as otherwise expressly provided in this Agreement,
the parties hereto agree that any suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with, this agreement or the transactions
contemplated hereby shall be brought in the Court of Chancery of the State of Delaware (or, in the
case of any claim as to which the federal courts have exclusive subject matter jurisdiction, the
federal court of the United States of America) sitting in the State of Delaware, and each of the
parties hereby consents to the exclusive jurisdiction of those courts (and of the appropriate
appellate courts therefrom) in any suit, action or proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter have to the laying of
the venue of any suit, action or proceeding in any of those courts or that any suit, action or
proceeding which is brought in any of those courts has been brought in an inconvenient forum.
Process in any suit, action or proceeding may be served on any party anywhere in the world, whether
within or without the jurisdiction of any of the named courts. Without limiting the foregoing,
each party agrees that service of process on it by notice as provided in Section 11 shall
be deemed effective service of process.
Section 10. Enforcement. The parties acknowledge and agree that any breach of the
terms of this Agreement would give rise to irreparable harm for which money damages would not be an
adequate remedy and accordingly the parties hereto agree that, in addition to any other remedies,
each party shall be entitled to enforce the terms of this Agreement by a decree of specific
performance without the necessity of proving the inadequacy of money damages as a remedy.
Section 11. Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by courier service, by cable, by facsimile, by
telegram, by telex or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address for a party as shall
be specified in a notice given in accordance with this Section 11):
5
| (a) | if to the Corporation: | ||
| Booz Xxxxx Xxxxxxxx Holding Corporation 0000 Xxxxxxxxxxxx Xxx XX Xxxxx 000 Xxxxx Xxxxxxxxxx, XX 00000 Attention: Xxx Xxxxxxxx Facsimile No.: (000) 000-0000 |
|||
| with a copy to: | |||
| Debevoise & Xxxxxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxx X. Xxxxx Facsimile No.: (000) 000-0000 |
|||
| (b) | if to Investor, to the address set forth on the signature page hereof. |
Investor hereby consents to the delivery of information regarding the Shares and the
Corporation (i) via the Corporation’s website or (ii) via electronic delivery to the
Investor’s email address. Investor agrees to keep the Corporation updated with Investor’s
address and email address.
Section 12. Assignment. No party shall have the right or the power to assign or
delegate any provision of this Agreement except with the prior written consent of the Corporation,
in the case of an assignment or delegation by Investor, or with the prior written consent of
Investor, in the case of an assignment or delegation by the Corporation; provided,
however, that the Corporation may assign (including by way of a pledge) to its lenders or
other financing sources any or all of its rights hereunder as collateral security (in either case,
which assignment shall not relieve the Corporation of its obligations hereunder). Except as
provided in the preceding sentence, this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective legal representatives, heirs, legatees, successors and
assigns.
Section 13. Counterparts. This Agreement may be executed in one or more counterparts,
each of which when executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. Any facsimile copies hereof or signature hereon shall, for
all purposes, be deemed originals.
Section 14. Entire Agreement. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and may be amended only in a writing
executed by the party to be bound thereby.
Section 15. Amendments. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement executed by Investor and
the Corporation.
Section 16. Termination of Agreement. This Agreement may be terminated by the mutual
written consent of the Corporation and Investor, and shall terminate automatically
6
without any action of the parties hereto if the Closing has not occurred within ten (10)
business days of the date hereof. Upon such termination, this Agreement shall not have any further
force and effect; provided that termination of this Agreement shall not relieve any party
from liability for any breach of this Agreement occurring prior to such termination.
Section 17. Further Assurances. Subject to the terms and conditions provided herein,
each party hereto covenants and agrees to use commercially reasonable efforts to take, or cause to
be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable,
whether under applicable laws and regulations or otherwise, in order to consummate and make
effective the transactions contemplated by this Agreement.
Section 18. Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.
Section 19. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby.
[Signature page follows]
7
IN WITNESS WHEREOF, the parties have hereby executed this Subscription Agreement as of the
date first above written.
| BOOZ XXXXX XXXXXXXX HOLDING CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Subscription Agreement]
| INVESTOR | ||||
| Signature: | ||||
| Name: | ||||
| Address of Investor: | ||||
| Facsimile: | ||||
| Email: | ||||
[Signature Page to Subscription Agreement]
SCHEDULE 1
| Name of Investor | Number of Shares | Aggregate Purchase Price | ||
| [•] | [•] | [•] |
EXHIBIT A
STOCKHOLDERS AGREEMENT
