EXHIBIT 10.20
STOCK SUBSCRIPTION AGREEMENT
This Stock Subscription Agreement (this "Agreement") is made as of this
25th day of September, 1992, by and between Big 5 Corporation, a Delaware
corporation (the "Company"), and Green Equity Investors, L.P., a Delaware
limited partnership (the "Purchaser").
WHEREAS, pursuant to a Purchase and Sale Agreement, dated as of May 22,
1992 (the "Big 5 Agreement"), among Pacific Enterprises, a California
corporation, Thrifty Corporation, a California corporation ("Thrifty"), and the
Company's wholly-owned subsidiary, Big 5 Holdings, Inc. ("Holdings"), Holdings
is acquiring (the "Acquisition"), as of the date of this Agreement by means of a
direct purchase, all of the outstanding capital stock of United Merchandising
Corp., a California corporation wholly-owned by Thrifty; and
WHEREAS, in order to provide a portion of the funds required by Holdings
to consummate the Acquisition, the Company desires to issue and sell to the
Purchaser shares of the Company's Common Stock, par value $.01 per share (the
"Common Stock"), and the Company's Series A 9% Cumulative Redeemable Preferred
Stock, par value $.01 per share (the "Junior Preferred Stock") (collectively,
the "Purchase Shares"); and
WHEREAS, the Purchaser desires to acquire the Purchase Shares;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the parties hereto agree as follows:
1. Purchase and Sale of Stock.
(a) The Company is authorized to issue 6,000,000 shares of Common
Stock and 500,000 shares of Preferred, of which 250,000 shares have been
designated as Junior Preferred Stock. The Junior Preferred Stock has the rights,
preferences and privileges, and is subject to the restrictions and limitations,
set forth in the Certificate of Designation relating thereto, a copy of which is
attached as Annex A hereto. The execution, delivery and performance of this
Agreement by the Company has been duly authorized by all necessary corporate
action on the part of the Company. Upon the issuance and purchase of the
Purchase Shares pursuant hereto, such Purchase Shares shall be duly authorized,
validly issued, fully paid and nonassessable.
(b) Subject to all of the terms and conditions of this Agreement, the
Purchaser hereby subscribes for and agrees to purchase, and the Company shall
sell to the Purchaser, 3,130,080 shares of Common Stock and 131,186 shares of
Junior Preferred Stock at a purchase price of $5.00 per share and $100.00 per
share, respectively.
(c) Subject to the terms and conditions of this Agreement, the
Purchaser shall deliver to the Company, concurrently with the execution and
delivery of this
Agreement, the cash amount of Twenty-Eight Million Seven Hundred Sixty-Nine
Thousand and NO/100 Dollars ($28,769,000) for the Purchase Shares in the form of
a wire transfer of same day federal funds to a bank account specified by the
Company or by certified or bank cashier's check payable to the order of the
Company.
Promptly following the consummation of the transactions contemplated
by the Big 5 Agreement and receipt of the consideration for the Purchase Shares,
the Company will deliver to the Purchaser duly issued and authenticated
certificates evidencing the Purchase Shares.
The closing of the transaction contemplated by this Agreement is
conditioned upon the consummation of the transactions contemplated by the Big 5
Agreement; and, if the transactions contemplated by the Big 5 Agreement are not
consummated for any reason, then this Agreement shall be null and void and
neither party hereto shall have any obligation to the other in respect hereof,
except that the Company shall return to the Purchaser any purchase price for the
Purchase Shares theretofore received by the Company.
2. Purchase for Investment.
(a) As used in this Agreement, the term "Stock" includes the Common
Stock and the Junior Preferred Stock being acquired by the Purchaser pursuant to
this Agreement, and all shares of capital stock of the Company issued as a
result of any stock dividend on, or stock split or reclassification or
conversion of, any such Purchase Shares, or issued with respect to any such
Purchase Shares in connection with any merger or reorganization involving the
Company.
(b) The Purchaser represents and warrants to the Company that (i) all
Stock purchased or otherwise acquired by it is being or will be acquired by it
for its own account for investment, and (ii) it will not sell or otherwise
dispose of any Stock except in compliance with the Securities Act of 1933, as
amended (the "Act"), the rules and regulations of the Securities and Exchange
Commission (the "Commission") thereunder and the terms of this Agreement.
(c) The Purchaser agrees that prior to making any disposition of any
Stock (other than a disposition to the Company or to a Related Transferee, as
defined below), it will give written notice to the Company describing the manner
of such proposed disposition. The Purchaser further agrees that it will not
effect such proposed disposition until either (i) such Purchaser has provided to
the Company an opinion of counsel satisfactory in form and substance to the
Company that such proposed disposition is exempt from registration under the Act
and any applicable state securities laws, or (ii) a registration statement under
the Act covering such proposed disposition has been filed by the Company under
the Act and has become effective and compliance with applicable state securities
laws has been effected. The Company agrees that it will respond as promptly as
reasonably practicable to any notice of sale given hereunder. The Company will
use its best efforts to comply with any such applicable state securities laws,
but shall in no event be required, in connection therewith, to qualify to do
business in any state where it is not then qualified or to take any action that
would subject it to tax or to the general service of process in any state where
it is not then subject.
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(d) The Purchaser acknowledges that it is familiar with Rule 144, as
amended, under the Act, and that it has been advised that Rule 144 permits, only
under certain circumstances, the public resale of restricted securities such as
the Stock, but that Rule 144 is not currently, and may not in the future become,
available to permit public resales by it of any Stock. The Purchaser understands
that, to the extent that Rule 144 is not available, it will be unable to sell
any Stock without either registration under the Act or the existence of another
exemption from such registration requirement. The Company has no obligation to
the Purchaser to register any Stock except as expressly provided in Section 4 of
this Agreement.
3. Legend on Certificates. Each stock certificate of the Company issued
to represent any Stock shall bear the following (or a substantially equivalent)
conspicuous legend on the face or reverse side thereof:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR THE SECURITIES LAWS OF ANY JURISDICTION. SUCH SECURITIES MAY NOT
BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
EXCEPT PURSUANT TO (I) A REGISTRATION STATEMENT WITH RESPECT TO SUCH
SECURITIES THAT IS EFFECTIVE UNDER SUCH ACT OR APPLICABLE STATE
SECURITIES LAW, OR (II) ANY EXEMPTION FROM REGISTRATION UNDER SUCH
ACT, OR APPLICABLE STATE SECURITIES LAW, RELATING TO THE DISPOSITION
OF SECURITIES, INCLUDING RULE 144, PROVIDED THAT, EXCEPT AS OTHERWISE
PROVIDED IN THE STOCK SUBSCRIPTION AGREEMENT DATED AS OF SEPTEMBER ,
1992 AMONG THE COMPANY, THE PURCHASER OF THESE SECURITIES AND GREEN
EQUITY INVESTORS, L.P., AN OPINION OF COUNSEL IS FURNISHED,
REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY, THAT AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND/OR
APPLICABLE STATE SECURITIES LAW IS AVAILABLE.
Any stock certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon the
completion of a public distribution of Stock represented thereby) shall also
bear such legend, unless the restrictions contained in Section 2 of this
Agreement are no longer effective and in the opinion of counsel for the Company
the Stock represented thereby need no longer be subject to the restrictions
contained in Sections 2 and 3 of this Agreement. The provisions of Sections 2, 3
and 4 of this Agreement shall be binding upon, and shall inure to the benefit
of, the Purchaser and all subsequent holders of the Stock who acquired the same
directly or indirectly from the Purchaser in a transaction or series of
transactions not involving any
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public offering (collectively with the Purchaser, "Holders"). The Company agrees
that it will not transfer on its books any certificate for the Stock in
violation of the provisions of this Agreement.
4. Registration Rights.
(a) If the Company receives a request signed by one or more Holders
that collectively hold at least 20% of the Common Stock then outstanding (all
such persons making such request being hereinafter referred to in this Section 4
as the "Initiating Holders") stating that such Initiating Holders propose to
sell or distribute publicly not less than 20% of the Common Stock then
outstanding and that such Initiating Holders desire to have such Common Stock
registered under the Act in connection with such proposed sale or distribution,
the Company shall as soon as practicable use its best efforts to file an
appropriate registration statement under the Act covering the Common Stock and
the proposed sale or distribution referred to in such notice and to cause such
registration to become effective under the Act as soon as practicable after the
filing thereof. As promptly as practicable after receiving such request, the
Company shall give written notice thereof to all Holders other than Initiating
Holders and such other Holders shall, by notice to the Company given within
fifteen (15) days after the giving of notice by the Company, be entitled to have
any Common Stock which they then propose to sell or distribute publicly
registered under such registration statement as if they were Initiating Holders.
The Company may include in any such registration statement other shares of
Common Stock. The Holders shall not be entitled to make a request pursuant to
this subsection (a) on more than two occasions, provided that the registrations
so requested are actually effected. With the exception of the initial
registration of Common Stock pursuant to the Act, the Company shall not be
required to effect a registration pursuant to this subsection (a) (other than on
Form S-3 or a similar short form if then permitted) until a period of twelve
months shall have elapsed from the effective date of the most recent previous
registration which was not effected on Form S-3 or similar short form, unless in
the case of a registration, notice of which shall have been given pursuant to
subsection (b), any Holder shall have been prevented from including in such
previous registration at least 50% of the Common Stock which such Holder
requested to have included, in which case such period shall be six months. The
right of the Initiating Holders to request a registration of Common Stock
pursuant to this subsection (a) shall not apply to any Holder to whom the
Company shall deliver an opinion of its counsel that all of the Common Stock
which such Holder proposes to sell may lawfully be sold or distributed publicly
without registration within a period of six months commencing on the date which
is sixty days after the date of such Holder's registration request.
(b) Subject to the provisions herein, if the Company at any time
proposes to register any of its securities under the Act, whether or not for
sale for its own account, on a form and in a manner which would permit
registration of Common Stock for a public offering under the Act (other than
registration on Form S-4 or Form S-8 or any successor form thereto), the Company
shall give written notice of the proposed registration to each Holder at least
30 days prior to the filing thereof, and each Holder shall have the right to
request that all or any part of its Common Stock be included in such
registration by giving written notice to the Company within fifteen (15) days
after the giving of such notice by the Company (any Holder giving the Company a
notice requesting that Common Stock owned
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by it be included in such proposed registration being hereinafter referred to in
this Section 4 as a "Registering Holder"); provided, however, that (i) if the
registration is an underwritten primary registration on behalf of the Company
and the managing underwriters of such offering determine that the aggregate
amount of securities of the Company which all Registering Holders and all other
security holders of the Company, pursuant to contractual rights to participate
in such registration ("Other Holders"), propose to include in such registration
statement exceeds the maximum amount of securities that should be included
therein, the Company will include in such registration, first, the shares which
the Company proposes to sell and, second, the Common Stock proposed to be sold
by such Registering Holders and Other Holders, pro rata among all such
Registering Holders and Other Holders, taken together, on the basis of the
relative equity interests in the Company of all Registering Holders and Other
Holders who have requested that securities owned by them be so included (it
being agreed and understood, however, that such underwriters shall have the
right to eliminate entirely the participation in such registration of all
Registering Holders and Other Holders), and (ii) if the registration is an
underwritten secondary registration on behalf of any of the Other Holders
pursuant to demand registration rights and the managing underwriters determine
that the aggregate amount of securities which all Registering Holders and all
Other Holders propose to include in such registration exceeds the maximum amount
of securities that should be included therein, the Company will include in such
registration, first, the securities to be sold for the account of the Other
Holders demanding registration (but only to the extent such Other Holders are
entitled to demand inclusion thereof), second, any securities to be sold for the
account of the Company, and, third, the Common Stock of such Registering Holders
and Other Holders electing to include (but not being entitled to demand
inclusion of) securities in such registration, pro rata among all such
Registering Holders and Other Holders, taken together, on the basis of the
relative equity interests in the Company of all Registering Holders and such
Other Holders who have requested that securities owned by them be included (it
being agreed and understood, however, that such underwriters shall have the
right to eliminate entirely the participation therein of all such Registering
Holders and Other Holders not entitled to demand inclusion of securities in such
registration). Common Stock proposed to be registered and sold for the account
of any Registering Holder shall be sold to prospective underwriters selected or
approved by the Company and on the terms and subject to the conditions of one or
more underwriting agreements negotiated between the Company and/or Other Holders
demanding registration and the prospective underwriters. The Registering Holders
shall be permitted to withdraw all or a part of the shares of Common Stock held
by such Registering Holders which were to be included in such registration at
any time prior to the effective date of such registration. The Company shall not
be required to maintain the effectiveness of the registration statement for such
registration beyond the earlier to occur of 120 days after the effective date
thereof or consummation of the distribution by the Registering Holders included
in such registration statement. The Company may withdraw any registration
statement at any time before it becomes effective, or postpone the offering of
securities, without obligation or liability to any Holder.
(c) In connection with any registration of Common Stock under the Act
pursuant to this Agreement, the Company will furnish each Holder whose Common
Stock is registered thereunder with a copy of the registration statement and all
amendments thereto and will supply each such Holder with copies of any
prospectus included therein (including a preliminary prospectus and all
amendments and supplements thereto), in such quantities as
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may be reasonably necessary for the purposes of the proposed sale or
distribution covered by such registration. The Company shall not, however, be
required to maintain the registration statement and to supply copies of a
prospectus for a period beyond 120 days after the effective date of such
registration statement and, at the end of such period, the Company may
deregister any Common Stock covered by such registration statement and not then
sold or distributed. In connection with any such registration of Common Stock,
the Company will, at the request of the managing underwriters with respect
thereto, use its best efforts to qualify such registered shares for sale under
the securities laws of such states as is reasonably required to permit the
distribution of such registered shares, provided that the Company shall not be
required in connection therewith or as a condition thereof to qualify to do
business in any state where it is not then qualified or to take any action that
would subject it to tax or to the general service of process in any state where
it is not then subject.
(d) Notwithstanding any other provision of this Section 4, each
Holder agrees that in the event of an underwritten public offering of Common
Stock for the account of the Company, such Holder will not (and it shall be a
condition to the rights of each Holder and the obligations of the Company under
this Section 4 that such Holder does not) offer for public sale (other than as
part of such underwritten public offering) any Common Stock during the 10 days
prior to and such number of days (not in excess of 180) after the effective date
of the registration statement in connection with such public offering as the
underwriters and the Company may request in writing, without the consent of the
underwriters.
(e) All expenses, disbursements and fees incurred by the Company in
connection with carrying out its obligations under this Section 4 shall be borne
by the Company; however, each Holder shall pay (i) all costs and expenses of
counsel for such Holder, if such counsel is not also counsel for the Company,
(ii) all underwriting discounts, commissions and expenses and all transfer taxes
with respect to the Common Stock sold by such Holder, and (iii) all other
expenses incurred by such Holder and incidental to the sale and delivery of the
Common Stock to be sold by such Holder.
(f) It shall be a condition of each Holder's rights hereunder to have
Common Stock owned by such Holder registered that:
(i) such Holder shall cooperate with the Company by supplying
information and executing documents relating to such Holder or the
securities of the Company owned by such Holder in connection with
such registration;
(ii) such Holder shall enter into any undertakings and take such
other action relating to the conduct of the proposed offering which
the Company or the underwriters may reasonably request as being
necessary to insure compliance with federal and state securities laws
and the rules or other requirements of The National Association of
Securities Dealers, Inc. or otherwise to effectuate the offering; and
(iii) such Holder shall execute and deliver an agreement to
indemnify and hold harmless the Company, each of its directors, each
of its officers who has signed the registration statement, any
underwriter (as
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defined in the Act), and each person, if any, who controls the
Company or such underwriter within the meaning of the Act, against
such losses, claims, damages or liabilities (including reimbursement
for legal and other expenses) to which the Company or any such
director, officer, underwriter or controlling person may become
subject under the Act or otherwise, in such manner as is customary
for registrations of the type then proposed and, in any event,
equivalent in scope to indemnities given by the Company in connection
with such registration, but only with respect to information
furnished by such Holder in writing in connection with such
registration (and provided further that the foregoing indemnities
shall be limited to the aggregate amount of proceeds received by such
Holder pursuant to the sale of shares in such registration).
(g) In the event of any registration under the Act of any Common
Stock pursuant to this Section 4, the Company hereby agrees to indemnify and
hold harmless each Holder disposing of such Common Stock against such losses,
claims, damages or liabilities (including reimbursement for legal and other
expenses) to which such Holder may become subject under the Act or otherwise, in
such manner as is customary for registrations of the type then proposed, but not
with respect to information furnished by such Holder in writing in connection
with such registration.
5. Notices. All notices or other communications under this Agreement
shall be given in writing and shall be deemed duly given and received on the
third full business day following the day of the mailing thereof by registered
or certified mail, return receipt requested, or when delivered personally or
sent by facsimile transmission (if a confirmation of transmission is retained)
as follows:
(a) if to the Company, at its principal executive offices at the time
of the giving of such notice, or at such other place as the Company shall have
designated by notice as herein provided to the Purchaser;
(b) if to the Purchaser at its address at the time of the giving of
such notice, or at such other place as the Purchaser shall have designated by
notice as herein provided to the Company; and
(c) if to any other Holder, at such Holder's last address appearing
in the Company's stock transfer records.
6. Specific Performance. Due to the fact that the securities of the
Company cannot be readily purchased or sold in the open market, and for other
reasons, the parties will be irreparably damaged in the event that this
Agreement is not specifically enforced. In the event of a breach or threatened
breach of the terms, covenants and/or conditions of this Agreement by any party
hereto, the other party shall, in addition to all other remedies, be entitled
(without any bond or other security being required) to a temporary and/or
permanent injunction, without showing any actual damage or that monetary damages
would not provide an adequate remedy, and/or a decree for specific performance,
in accordance with the provisions hereof.
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7. Miscellaneous.
(a) This writing constitutes the entire agreement of the parties with
respect to the subject matter hereof and may not be modified or amended except
by a written agreement signed by the Company and the Purchaser. Anything in this
Agreement to the contrary notwithstanding (and without limiting the rights of
the owners of all of the then outstanding Stock acquired hereunder to amend,
modify or terminate this Agreement), any modification or amendment of this
Agreement by a written agreement signed by, or binding upon, the Purchaser shall
be valid and binding upon any and all persons or entities who may, at any time,
have or claim any rights under or pursuant to this Agreement (including all
Holders hereunder) in respect of the Stock originally acquired by the Purchaser.
(b) No waiver of any breach or default hereunder shall be considered
valid unless in writing, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature. Anything in this
Agreement to the contrary notwithstanding, any waiver, consent or other
instrument under or pursuant to this Agreement signed by, or binding upon, a
Purchaser shall be valid and binding upon any and all persons or entities (other
than the Company) who may, at any time, have or claim any rights under or
pursuant to this Agreement (including all Holders hereunder) in respect of the
Stock originally acquired by the Purchaser.
(c) Except as otherwise expressly provided herein, this Agreement
shall be binding upon and inure to the benefit of the Company and the Purchaser
and their respective successors and assigns; provided, however, that (i) nothing
contained herein shall be construed as granting to the Purchaser the right to
transfer any of its Stock except in accordance with this Agreement, and (ii) the
Purchaser shall no longer be deemed a Purchaser or Holder hereunder after it
ceases to own any Stock.
(d) If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render invalid or unenforceable
any other severable provision of this Agreement, and this Agreement shall be
carried out as if any such invalid or unenforceable provision were not contained
herein.
(e) Should any party to this Agreement be required to commence any
litigation concerning any provision of this Agreement or the rights and duties
of the parties hereunder, the prevailing party in such proceeding shall be
entitled, in addition to such other relief as may be granted, to the attorneys'
fees and court costs incurred by reason of such litigation.
(f) The section headings contained herein are for the purposes of
convenience only and are not intended to define or limit the contents of said
sections.
(g) Each party hereto shall cooperate and shall take such further
action and shall execute and deliver such further documents as may be reasonably
requested by any other party in order to carry out the provisions and purposes
of this Agreement.
(h) This Agreement may be executed in counterparts, all of which
taken together shall be deemed one original.
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(i) This Agreement shall be deemed to be a contract under the laws of
the State of California and for all purposes shall be construed and enforced in
accordance with the internal laws of said state without regard to the principles
of conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BIG 5 CORPORATION, a Delaware corporation
By: _____________________________________
Its: ____________________________________
GREEN EQUITY INVESTORS, L.P.
By: _____________________________________
Its: ____________________________________
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