EXHIBIT (c)(3)
DRAFT OF SUBSCRIPTION AGREEMENT
This Agreement for Subscription of Common Stock ("Agreement") is entered
into as of the __ day of November, 1995, by and between BOTI Holdings, Inc., a
Nevada corporation ("Issuer"), and Big O Dealers L.P., a California limited
partnership ("Subscriber").
RECITALS:
A. Issuer desires to issue to Subscriber, and Subscriber desires to
subscribe to and purchase from Issuer a total of Five Hundred Sixty-Nine
Thousand Eight Hundred One (569,801) shares (the "Shares") of the common stock,
par value $0.01 of Issuer (the "Common Stock") pursuant to the terms contained
in this Agreement.
B. As payment for the Shares, Subscriber will transfer and convey to
Issuer pursuant to the terms of this Agreement _______ shares of common stock,
par value $0.10, of Big O Tires, Inc., a Nevada corporation, held by Subscriber
("Big O Common") valued at $16.50 per share, as well as cash in the amount of
___________, for an aggregate consideration of Ten Million Dollars
($10,000,000.00).
AGREEMENT:
NOW THEREFORE, in exchange for the mutual covenants and promises contained
herein, and for other valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, the parties hereby agree as follows:
1. PAYMENT OF SUBSCRIPTION PRICE. On the Closing Date (as defined in
Section 3), Subscriber shall pay to Issuer in immediately available funds a
total of ________________ ($ _________), and shall convey, transfer and assign
all of Subscriber's rights, title and interest in and to _____ shares of Big O
Common then held by Subscriber (collectively, the "Subscriber Payment").
2. ISSUANCE OF SHARES. Upon receipt of the Subscriber Payment, Issuer
shall issue, sell, transfer and convey to Subscriber the Shares.
3. CLOSING DATE. The Closing Date shall be the date which is one
business day prior to the "Effective Date" of the Agreement and Plan of Merger
by and between BOTI Holdings, Inc., BOTI Acquisition Corp., and Big O Tires,
Inc., dated July 24, 1995, as amended.
4. SUBSCRIBER'S REPRESENTATIONS AND WARRANTIES.
4.1. The Shares are being acquired for the Subscriber's own account (and
not for the account of others) for investment and not with a view to the
distribution or resale thereof.
4.2. Subscriber understands that it may not sell or otherwise dispose of
the Shares in the absence of either a registration statement under the
Securities Act of 1933 and applicable state securities laws or an exemption from
the registration provisions of the Securities Act of 1933 and applicable state
securities laws.
4.3. The certificates representing the Shares may contain a legend to the
effect of Section 4.2 above.
4.4. As of the Closing Date, the shares of Big O Common conveyed to Issuer
from Subscriber pursuant to Section 1, will be owned beneficially and of record
by Subscriber, free and clear of any liens, charges, pledges, security
interests, prior assignments, encumbrances and claims of any kind and nature
whatsoever. No such shares of Big O Common are subject to any restriction with
respect to their transferability, other than restrictions on transfer imposed
under applicable federal and state securities laws.
4.5. The execution and delivery of this Agreement, and the consummation of
the transactions contemplated hereby, will not result in the breach of any of
the terms and provisions of, or constitute a default under, or conflict with any
agreement, indenture or other instrument to which Subscriber is bound.
5. ISSUER'S REPRESENTATIONS AND WARRANTIES.
5.1. Issuer represents that the Shares shall be validly issued, fully
paid, and non-assessable.
5.2 The authorized capital stock of Issuer on the Closing Date will
consist of ___________ shares of Common Stock, of which _______ will be issued
and outstanding.
6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Subscriber and Issuer contained in this Agreement shall survive
until the Closing Date.
7. MISCELLANEOUS.
7.1. This Agreement constitutes the complete agreement between Issuer and
Subscriber and shall supersede any prior or contemporaneous written or oral
agreements relating to the purchase of the Shares.
7.2. This Agreement shall be governed by and interpreted under the
internal laws, and not the choice of law provisions, of the State of Nevada.
7.3. This Agreement may be executed in one or more identical counterparts,
each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument, and shall become effective when one
or more counterparts have been signed by each of the Parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the __ day of
November, 1995.
ISSUER: SUBSCRIBER:
BIG O HOLDINGS, INC., BIG O DEALERS, L.P.,
a Nevada corporation a California limited partnership
By: ______________________ By: ______________________
Name:_____________________ Its: Managing General Partner
Title:____________________ By: ____________________
Name: __________________
Title:___________ S_____
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