MCJUNKIN RED MAN HOLDING CORPORATION SUBSCRIPTION AGREEMENT
Exhibit 10.25
XXXXXXXX RED MAN HOLDING CORPORATION
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this “Agreement”) dated as of October 3, 2008 by and among
XxXxxxxx Red Man Holding Corporation, a Delaware corporation (the “Company”), Xxx
Xxxxxxx (the “Subscriber”) and, for purposes of Section 7 only, PVF Holdings LLC
(“PVF”).
RECITALS
WHEREAS, on October 3, 2008, the Company appointed the Subscriber to serve as a member of
the board of directors of the Company; and
WHEREAS, in exchange for the Cash Consideration (as defined below), the Subscriber desires
to purchase from the Company, and the Company desires to issue to the Subscriber, the Purchased
Shares (as defined below).
NOW THEREFORE, in consideration of the mutual promises herein made, and in consideration
of the representations, warranties, and covenants herein contained, the Company and the
Subscriber hereby agree as set forth below.
Section 1. Agreement to Sell and Purchase Securities. Subject to the terms and
provisions set forth in this Agreement, (a) Subscriber agrees to purchase 56.7396 shares of
common stock, par value $0.01 per share, of the Company (the “Common Stock”), at a
purchase price of $8,812.18 per share, for an aggregate purchase price of $500,000 (the
“Cash Consideration”) and (b) in consideration for the Cash Consideration, the Company
agrees to issue, sell and deliver to the Subscriber 56.7396 shares of Common Stock (the
“Purchased Shares”).
Section 2. Closing. The delivery of the Purchased Shares to the Subscriber shall
take place at a closing (the “Closing”) on such date as the Company and the Subscriber
shall mutually agree. The Subscriber shall deliver the Cash Consideration to the Company by
wire transfer of immediately available funds or by such other form of payment acceptable to the
Company so that at the Closing, the Company can deliver the Purchased Shares against receipt of
cleared funds. The time and date upon which the Closing occurs is herein called the
“Closing Date.”
Section 3. Acceptance. This Agreement is subject to the acceptance of the Company.
The Company reserves the right to accept or reject the subscription of Purchased Shares or any
portion thereof. Upon such acceptance, this Agreement shall become a binding agreement between
the Company, the Subscriber, and for purposes of Section 7 only, PVF.
Section 4. Representations and Warranties of the Subscriber. The Subscriber
represents, warrants and agrees that:
(a) The Subscriber has all requisite power and authority to execute and deliver this
Agreement and any and all instruments necessary or appropriate in order to
effectuate fully the terms and conditions of this Agreement and to perform and consummate his
obligations hereunder. This Agreement has been duly and validly executed and delivered by the
Subscriber and constitutes a valid and legally binding obligation of the Subscriber,
enforceable against the Subscriber in accordance with its terms and conditions, except as
enforceability thereof may be limited by any applicable bankruptcy, reorganization, insolvency
or other laws affecting creditors’ rights generally or by general principles of equity.
(b) The execution, delivery and performance of this Agreement by the Subscriber does not
(i) violate, conflict with, or constitute a breach of or default under any agreement to which
the Subscriber is a party or which he is bound or (y) violate any law, regulation, order, writ,
judgment, injunction or decree applicable to the Subscriber. No consent or approval of, or
filing with, any governmental or regulatory body is required to be obtained or made by the
Subscriber in connection with the execution and delivery of this Agreement.
(c) The Subscriber is acquiring the Purchased Shares for his own account, for investment
and not with a view to the sale or distribution thereof, nor with any present intention of
distributing or selling the same. The Purchased Shares have not been registered under the U.S.
Securities Act of 1933, as amended (the “Securities Act”), and, consequently, the
materials relating to the offer have not been subject to review and comment by the staff of the
Securities and Exchange Commission or any other governmental authority. Furthermore, there is
not now and there may never be any public market for the Purchased Shares. Rule 144 promulgated
under the Securities Act is not presently available with respect to the sale of any Purchased
Shares.
(d) The Subscriber is an “accredited investor,” as such term is defined in Rule 501(a) of
Regulation D promulgated under the Securities Act and, in connection with the execution of this
Agreement, the Subscriber agrees to deliver such certificates to that effect as the board of
directors of the Company may request.
(e) The Subscriber has had an opportunity to ask questions and receive answers concerning
the terms and conditions of the offering of the Purchased Shares and has had full access to
such other information concerning the Company as he has requested. The Subscriber’s knowledge
and experience in financial and business matters is such that he is capable of evaluating the
merits and risk of the investment in the Purchased Shares. The Subscriber has carefully
reviewed the terms and provisions of this Agreement and has evaluated the restrictions and
obligations contained herein. In furtherance of the foregoing, the Subscriber represents and
warrants that (i) no representation or warranty, express or implied, whether written or oral,
as to the financial condition, results of operations, prospects, properties or business of the
Company or as to the desirability or value of an investment in the Company has been made to the
Subscriber by or on behalf of the Company, (ii) the Subscriber has relied upon his own
independent appraisal and investigation, and the advice of his own counsel, tax advisors and
other advisors, regarding the risks of an investment in the Company and (iii) the Subscriber
will continue to bear sole responsibility for making his own independent evaluation and
monitoring of the risks of his investment in the Company.
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(f) The Subscriber’s financial situation is such that the Subscriber can afford to bear
the economic risk of holding the Purchased Shares for an indefinite period and the Subscriber
can afford to suffer the complete loss of his investment in the Purchased Shares.
(g) The Subscriber is not subscribing for the Purchased Shares as a result of or
subsequent to any advertisement, article, notice or other communication published in any
newspapers, magazine or similar media or broadcast over television or radio, or presented at
any seminar or meeting, or any solicitation of a subscription by a person or entity not
previously known to the Subscriber in connection with investments in securities generally.
(h) The Subscriber understands and acknowledges that (i) he is being issued the Purchased
Shares as part of a written compensatory contract pursuant to Rule 701 of the Securities Act
for services to the Company and its affiliates, and (ii) he or she would not be issued the
Purchased Shares if he or she were not an employee or director of the Company or one of its
affiliates.
(i) The Subscriber hereby acknowledges that any investment gain attributable to ownership
of the Purchased Shares will not be taken into consideration for any compensation purpose.
Section 5. Survival. All of the representations, warranties and agreements of the
Subscriber set forth herein shall survive the execution and delivery of this Agreement.
Section 6. Subscriber’s Employment. Nothing in this Agreement shall confer upon
the Subscriber any right to continue to serve as a director of the Company or any of its
affiliates or interfere in any way with the right of the Company or any of its affiliates, as
the case may be, in their sole discretion, to terminate the Subscriber’s service as director or
to increase or decrease the Subscriber’s compensation at any time.
Section 7. Stockholders Agreement
(a) The Subscriber hereby agrees to become a party to the Management Stockholders
Agreement by and among PVF Holdings LLC, the Company and the Executives parties thereto, dated
as of March 27, 2007, as amended, attached hereto as Exhibit A (the “Stockholders
Agreement”). Except as otherwise expressly set forth in this Section 7, the Subscriber
hereby agrees to be bound by, and subject to, all of the representations, warranties,
covenants, terms and conditions set forth in the Stockholders Agreement that are applicable to
an Executive (as defined in the Stockholders Agreement). Execution and delivery of this
Agreement by the Subscriber shall also constitute execution and delivery by him of the
Stockholders Agreement, without further action of any party.
(b) The Company, PVF and the Subscriber hereby agree that effective upon the consummation
of a Qualified IPO (as defined in the Stockholders Agreement)
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of the Company, the Subscriber shall no longer be a party to the Stockholders Agreement and the
Stockholders Agreement shall automatically terminate, without further action of any party, with
respect to the Subscriber and the Purchased Shares; provided that no such termination shall
relieve any party thereto (including the Subscriber) of any liability or damages to any other
party thereto resulting from a breach of the Stockholders Agreement prior to such termination.
Section 8. Governing Law; Waiver of Jury Trial. This Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of Delaware, without
reference to the conflict of laws principles thereof. The parties hereby irrevocably submit to
the personal jurisdiction of the courts of the State of Delaware located in the County of New
Castle and the Federal courts of the United States of America located in the County of New
Castle solely in respect of the interpretation and enforcement of the provisions of this
Agreement and of the documents referred to in this Agreement, and in respect of the
transactions contemplated hereby, and hereby waive, and agree not to assert, as a defense in
any action, suit or proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit or proceeding may not be
brought or is not maintainable in said courts or that the venue thereof may not be appropriate
or that this Agreement or any such document may not be enforced in or by such courts, and the
parties hereto irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a Delaware State or Federal court located in the County
of New Castle. The parties hereby consent to and grant any such court jurisdiction over the
person of such parties and, to the extent permitted by law, over the subject matter of such
dispute and agree that mailing of process or other papers in connection with any such action or
proceeding in the manner provided in this Agreement or in such other manner as may be permitted
by law shall be valid and sufficient service thereof. Each of the parties irrevocably and
unconditionally waives, to the fullest extent permitted by applicable law, any and all rights
to trial by jury in connection with any litigation arising out of or relating to this Agreement
or the transactions contemplated hereby.
Section 9. Assignment; Binding Effect; Third Party Beneficiaries. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be assigned by the
Subscriber (whether by operation of law or otherwise) without the prior written consent of the
Company. Subject to the preceding sentence, this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and assigns. Each of
the Company’s affiliates is a third party beneficiary under this Agreement. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement (other than as
set forth in the immediately preceding sentence), express or implied, is intended to confer on
any person other than the parties hereto or their respective heirs, successors, executors,
administrators and assigns any rights, remedies, obligations or liabilities under or by reason
of this Agreement.
Section 10. Entire Agreement. This Agreement and the Stockholders Agreement
constitute the entire agreement among the parties with respect to the subject
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matter hereof and supersede all prior agreements and understandings (oral and written) among
the parties with respect thereto.
Section 11. Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or otherwise affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.
If any provision of this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
Section 12. Revocability. This Agreement may not be withdrawn or revoked by the
Subscriber in whole or in part without the prior written consent of the Company.
Section 13. Notices. All notices, requests, demands, claims and other
communications provided for under the terms of this Agreement shall be in writing. Any notice,
request, demand, claim or other communication hereunder shall be sent by (i) personal delivery
(including receipted courier service) or overnight delivery service, (ii) facsimile during
normal business hours, with confirmation of receipt, to the number indicated, (iii) reputable
commercial overnight delivery service courier or (iv) registered or certified mail, return
receipt requested, postage prepaid and addressed to the intended recipient as set forth below:
If to the Company:
|
XxXxxxxx Red Man Holding Corporation | |
| 000 Xxxxxxxxx Xxxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: General Counsel | ||
| Facsimile: 000-000-0000 | ||
with a copy to:
|
GS Capital Partners | |
| 00 Xxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attention: Xxxx Xxxx | ||
| Facsimile: 000-000-0000 | ||
| and | ||
| Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP | ||
| Xxx Xxx Xxxx Xxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attention: Xxxxxx X. Xxxxxxxxx, Esq. | ||
| Facsimile: 212-859-4000 | ||
If to the Subscriber:
|
Xxx Xxxxxxx, to his principal residence as reflected | |
| in the records of the Company. |
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All such notices, requests, consents and other communications shall be deemed to have been
given when received. Either party may change its facsimile number or its address to which
notices, requests, demands, claims and other communications hereunder are to be delivered by
giving the other parties hereto notice in the manner then set forth.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the date first above
written.
| SUBSCRIBER | ||||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||||
| Xxxxxxx M. Xxxxxxx | ||||||
| XXXXXXXX RED MAN HOLDING CORPORATION | ||||||
| By: | /s/ Xxxxxx X. Xxxx | |||||
| Name: Xxxxxx X. Xxxx | ||||||
| Title: CEO | ||||||
| For purposes of Section 7 only: | ||||||
| PVF HOLDINGS LLC | ||||||
| By: | /s/ Xxxxxxx X. Lake | |||||
| Name: Xxxxxxx X. Lake | ||||||
| Title: Sr. Vice President, General Counsel & Corp Secretary |
||||||
[Signature Page –Xxx Xxxxxxx Subscription Agreement]
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