Exhibit 2
[EXECUTION VERSION]
XXXXXX SERVICES CORPORATION
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "Agreement") is made and entered into
as of the 12th day of April 2002, by and among Xxxxxx Services Corporation (the
"Company"), a company incorporated under the laws of the State of Delaware, and
the parties listed on Exhibit A (each a "Purchaser" and together the
"Purchasers").
WHEREAS, the Company is a party to that certain Revolving Loan
Agreement, dated as of March 31, 2000, with the financial institutions and funds
identified therein as the "Lenders" (consisting of the Tranche A Lenders and the
Tranche B Lenders, collectively, the "Revolver Lenders") and Foothill as
arranger and Revolver Agent, pursuant to which the Revolver Lenders have agreed
to make certain financial accommodations to Debtors;
WHEREAS, the Company is party to that certain Secured PIK/Term
Credit Agreement, dated as of March 31, 2000, with the Persons party to the
Secured PIK/Term Credit Agreement as lenders (consisting of the Secured Term
Lenders and the Secured PIK Lenders), and Canadian Imperial Bank of Commerce as
administrative agent for the Secured PIK Lenders and the Secured Term Lenders
(collectively, the "Secured PIK/Term Lenders"), pursuant to which the Secured
PIK/Term Lenders have agreed to make certain financial accommodations to the
Company;
WHEREAS, Revolver Agent, the Revolver Lenders and each Debtor
other than the Revolver Guarantors have entered into that certain Amendment
Number Seven to the Loan Agreement, dated contemporaneously herewith (the
"Seventh Amendment to Revolving Loan Agreement"), pursuant to which new
mezzanine financing will be provided to the Company by the Purchasers;
WHEREAS, the sale of the common stock of the Company, par
value $0.01 per share (the "Common Stock"), pursuant to the terms of this
Agreement and in the amounts set forth alongside each Purchaser's name on
Exhibit A, is a condition to the effectiveness of the Seventh Amendment to
Revolving Loan Agreement; and
WHEREAS, the Company desires to sell the Common Stock to the
Purchasers, subject to and in accordance with, the term and conditions set forth
herein.
In consideration of the premises and mutual covenants contained in this
Agreement, the parties hereto hereby agree as follows:
1. Definitions. When used in this Agreement, the following terms
shall have the meanings specified below:
"Business Day" means any day, other than a Saturday or Sunday
or a day on which banks located in New York, New York, shall be authorized or
required by law to close.
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"Registration Rights Agreement" means the Amended and Restated
Registration Rights Agreement, dated as of the date hereof, by and among the
Company, the Purchasers and the other parties thereto.
2. Purchase and Sale of Common Stock.
2.1 Sale and Issuance of Common Stock. (a) The purchase
and sale of the Purchased Shares shall take place on the date hereof (the
"Closing"). Each Purchaser severally agrees to purchase, and the Company agrees
to issue and sell severally to each Purchaser, the number of shares of Common
Stock set forth opposite the name of each Purchaser on Exhibit A (the "Purchased
Shares") at a purchase price of $0.01 per share. The Purchased Shares shall have
the rights, preferences, privileges and restrictions set forth in the
Certificate of Incorporation of the Company. The Company shall not be obligated
to sell the Purchased Shares to any Purchaser unless each Purchaser purchases
all of the Purchased Shares set forth opposite the name of such Purchaser on
Exhibit A in accordance with terms of this Agreement.
(b) No later than the Closing, the Company will cause
its transfer agent to deliver to each Purchaser a facsimile copy of a
certificate or certificates (and promptly following the Closing the Company will
deliver to each Purchaser the original of each such certificate), registered in
such Purchaser's name, representing the number of Purchased Shares to be
purchased by the Purchaser at the Closing, against payment of the purchase price
therefor, by wire transfer to the Company's bank account at Southwest Bank of
Texas, ABA #: 000000000, Acct: Xxxxxx Services, Inc., Acct #: 340235.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants the following to each Purchaser:
3.1 Organization, Good Standing and Qualification. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Company has the requisite corporate
power and authority to own and operate its properties and assets and to carry on
its business as now conducted, to execute and deliver this Agreement, to issue
and sell the Purchased Shares, and to carry out the provisions of this
Agreement.
3.2 Authorization. The Company has taken all corporate
action necessary for the authorization, execution and delivery of this
Agreement, and all corporate action necessary for the performance of all
obligations of the Company hereunder and the authorization, issuance, sale, and
delivery of the Purchased Shares has been taken or will be taken prior to the
Closing. This Agreement constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and other laws of general application affecting
enforcement of creditors' rights generally, or (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
3.3 Valid Issuance of Common Stock. The Purchased
Shares, when issued, sold and delivered in accordance with the terms hereof in
consideration for the Purchase Price, will be (a) duly and validly issued,
fully paid and non-assessable, and (b) free and clear of any
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liens or encumbrances other than any liens and encumbrances created by the
Purchasers or restrictions on transfer under federal and state securities laws
and the Registration Rights Agreement. The Purchased Shares will not be
issued in violation of any preemptive rights.
3.4 Capitalization. The authorized capital of the
Company consists, immediately prior to the issuance of the Purchased Shares, of
90,000,000 shares of Common Stock, of which 24,256,437 shares are issued and
outstanding. Subject to rounding, the Purchased Shares represent 15.0% of the
outstanding shares of Common Stock of the Company immediately prior to the
issuance thereof.
4. Representations and Warranties of the Purchaser. Each
Purchaser hereby represents and warrants severally to the Company that:
4.1 Organization, Good Standing and Qualification. Each
Purchaser is duly organized, validly existing and in good standing under the
laws of the state in which it is organized. Each Purchaser has the requisite
power and authority to carry on its business as now conducted and as presently
proposed to be conducted, to execute and deliver this Agreement and to carry out
the provisions of this Agreement.
4.2 Authorization. Each Purchaser has taken all action
necessary for the authorization, execution and delivery of this Agreement, and
all action necessary for the performance of all obligations of the Purchaser
hereunder has been taken or will be taken prior to the Closing. This Agreement
constitutes a valid and legally binding obligation of each Purchaser,
enforceable against such Purchaser in accordance with its terms except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and other laws of general application affecting
enforcement of creditors' rights generally, or (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
4.3 Purchase Entirely for Own Account. Each Purchaser
is acquiring the Purchased Shares for its own account and not with a view to the
resale or distribution of any part thereof, nor with the present intention of
distributing or selling the same. Each Purchaser has no present or contemplated
agreement, undertaking, arrangement, obligation or commitment providing for the
disposition thereof in violation of applicable securities laws. Each Purchaser
is an "accredited investor" within the meaning of Rule 501 of the Securities Act
of 1933, as amended (the "Securities Act"). In the event that the Purchaser is
acquiring the Purchased Shares as a nominee or agent for another person (a
"Beneficiary"), the Purchaser represents that such Beneficiary is an "accredited
investor" and makes the representations set forth in the second sentence of this
Section 4.3 and in Sections 4.4 and 4.5 with respect to each Beneficiary.
4.4 Disclosure of Information. Each Purchaser (i) has
received all information which it deems relevant for the purpose of its
investment, (ii) has been given the opportunity to ask questions of, and receive
answers from, the Company concerning the Company and other matters pertaining to
this investment and the business, prospects and financial condition of the
Company and to obtain additional information concerning the Company and the
Purchased Shares (to the extent the Company possessed such information or could
acquire it without unreasonable effort or expense), (iii) is aware that such
Purchaser's
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investment in the Company involves a high degree of risk, and (iv) such
Purchaser acknowledges that it can economically sustain the loss of its
investment in the Purchased Shares.
4.5 Restricted Securities. Each Purchaser understands
that the Purchased Shares have not been registered under the Securities Act.
Each Purchaser understands that the Purchased Shares are "restricted securities"
under applicable U.S. federal and state securities laws and that, pursuant to
these laws, must be held by the Purchaser indefinitely unless they are
registered with the Securities and Exchange Commission and qualified by state
authorities, or an exemption from such registration and qualification
requirements is available.
5. Miscellaneous.
5.1 Expenses. The Company and each Purchaser shall bear
its own expenses with respect to this Agreement and the transactions
contemplated hereby.
5.2 Assignment. None of the rights or obligations under
or pursuant to this Agreement may be assigned or transferred to by a Purchaser
or the Company to any other person without the written consent of the other
parties to this Agreement. In the event that such written consent is received,
the assignee shall agree in writing to be bound by all of the terms hereof and
the assignor shall remain liable for any and all of its obligations hereunder.
5.3 Entire Agreement. This Agreement, the Registration
Rights Agreement and the documents referred to herein constitute the entire
agreement between the parties hereto pertaining to the subject matter hereof,
and any and all other written or oral agreements relating to the subject matter
hereof existing between the parties hereto are expressly canceled.
5.4 Amendments and Waivers. Any term of this Agreement
may be amended or waived only if the same is in writing and signed by the
Company and each Purchaser.
5.5 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
5.6 Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.7 Successors and Assigns; No Third Party Rights. The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties. This
Agreement shall not be construed as granting rights to any third party. In this
Agreement, third party shall mean any person that is not a party to this
Agreement.
5.8 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing
(including by facsimile transmission), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when
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actually delivered or, in the case of notice by facsimile transmission, when
sent and confirmation of receipt is received. Notices to the Purchasers shall be
deemed to have been given or made when sent. All such notices, requests, demands
and other communications shall be sent to the address or facsimile number as set
forth on the signature page hereto.
5.9 Counterparts. 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.
5.10 Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the laws of the State of
New York excluding the conflict of laws provisions thereof.
[Signature pages follow.]
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The parties have executed this Subscription Agreement as of the date first
written above.
COMPANY:
XXXXXX SERVICE CORPORATION
By:______________________________________
Name:
Title:
Address: Xxxxxx Services Corporation
9700 Xxxxxxx, Suite 750,
Rosemont,Illinois 60018
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
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PURCHASERS:
MEADOW WALK LIMITED PARTNERSHIP
By: BARBERRY CORP., its General Partner
By:______________________________________
Name:
Title:
Address: c/o Icahn Associates
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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XXXXXXXXX L.L.C.
By:______________________________________
Name:
Title:
Address: Xxxxxxxxx L.L.C.
c/o Cerberus Capital Management, LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Addres: Xxxxxxx, Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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EXHIBIT A
Schedule of Purchasers
Name of Purchaser Purchased Shares Total Investment
Meadow Walk Limited Partnership 2,546,926 $25,496.26
Xxxxxxxxx L.L.C. 1,091,540 $10,915.40
TOTAL: 3,638,466 $36,384.66
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