SUBSCRIPTION AGREEMENT
relating to limited liability company interests in
ML SSG Delaware, LLC
between
ML SSG DELAWARE, LLC
as Issuer
and
THE PURCHASERS NAMED HEREIN
as Purchasers
Dated as of September 15, 2000
THIS SUBSCRIPTION AGREEMENT, dated as of September 15, 2000,
is being executed by ML SSG DELAWARE, LLC (the "Issuer"), a limited liability
company organized under the laws of the State of Delaware, and the purchasers
listed on the signature pages hereto (each, a "Purchaser" and collectively, the
"Purchasers").
PREAMBLE
WHEREAS, the Issuer desires to sell to each Purchaser, and
each Purchasers desire to purchase from the Issuer, one Unit (collectively, the
"Units") of the Issuer.
NOW, THEREFORE, in consideration of the premises, mutual
agreements and covenants hereinafter set forth, the Purchasers and the Issuer
hereby agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used in this Subscription Agreement
shall have the meanings provided below:
"Action" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"Affiliate" means, with respect to any specified Person, any
other Person that, directly or indirectly through one or more intermediaries,
Controls, is controlled by or is under common control with such specified
Person.
"Closing" means the purchase and sale of the Units in
accordance with the terms and conditions of this Subscription Agreement, which
shall take place on the Closing Date.
"Closing Date" means the date on which the Closing occurs as
provided in Section 2.03 of this Subscription Agreement.
"Control" (including the terms "controlled by" and "under
common control with"), with respect to the relationship between or among two or
more Persons, means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting securities, as
trustee or executor, by contract or otherwise, including, without limitation,
the ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
Person.
"Encumbrance" means any security interest, pledge, mortgage,
lien, charge, encumbrance, adverse claim, preferential arrangement or
restriction of any kind, including, without limitation, any restriction on the
use, voting, transfer, receipt of income or other exercise of any attributes of
ownership.
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"Governmental Authority" means any federal, state or local
government, governmental, regulatory or administrative authority, agency or
commission or any court, tribunal, or judicial or arbitral body.
"Governmental Order" means any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Issuer" shall have the meaning provided for such term in the
introduction hereto.
"Law" means any federal, state or local statute, law,
ordinance, regulation, rule or code.
"Person" means any individual, partnership, firm, corporation,
limited liability company, association, trust, unincorporated organization or
other entity.
"Purchase Price" shall have the meaning provided for such term
in Section 2.02 hereof.
"Purchaser" shall have the meaning provided for such term in
the introduction hereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subscription Agreement" means this Subscription Agreement, as
amended or supplemented from time to time.
"Unit" means a unit representing a limited liability company
interest in the Issuer with the designations, rights and preferences set forth
in the Amended and Restated Limited Liability Company Agreement of the Issuer.
ARTICLE II
PURCHASE AND SALE
Section 2.01. Purchase and Sale of the Units. Upon the terms
and subject to the conditions contained in this Subscription Agreement, at the
Closing, the Issuer shall sell to each Purchaser, and each Purchaser, severally
and not jointly, agrees to purchase from the Issuer, one Unit.
Section 2.02. Purchase Price. The purchase price of each Unit
(the "Purchase Price") shall be $500 per Unit, payable in accordance with the
terms and conditions of this Subscription Agreement and in the manner provided
in Section 2.03(b) hereof.
Section 2.03. Closing. (a) Subject to the terms and conditions
of this Subscription Agreement, the sale and purchase of the Units contemplated
by this Subscription Agreement shall take place at the Closing, to be held at
the offices of Shearman & Sterling at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
at 10:00 A.M. New York time, on October 20,
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2000, or at such other place or at such other time or on such other date as the
Issuer and the Purchasers may mutually agree upon in writing.
(b) At the Closing, (i) the Issuer shall register or cause to
be registered in the Issuer's transfer books the name of each Purchaser as the
registered owner of one Unit, and (ii) each Purchaser shall deliver to the
Issuer, by check, the amount of $500, being the Purchase Price for such Unit.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
As an inducement to the Purchasers to enter into this
Subscription Agreement, the Issuer hereby represents and warrants to the
Purchasers as follows:
Section 3.01. Organization and Authority of the Issuer. The
Issuer is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Delaware and has full power and
authority to enter into this Subscription Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Subscription Agreement by
the Issuer, the performance by the Issuer of its obligations hereunder and the
consummation by the Issuer of the transactions contemplated hereby, have been
duly authorized by all requisite action on the part of the Issuer. This
Subscription Agreement has been duly executed and delivered by the Issuer and
constitutes a valid and binding obligation of the Issuer enforceable against the
Issuer in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity.
Section 3.02. Issuance of Units. The Units have been duly and
validly authorized and, when issued and delivered against payment therefore as
provided herein, will be duly and validly issued and fully paid and
non-assessable.
Section 3.03. No Conflict. The execution, delivery and
performance of this Subscription Agreement by the Issuer does not and will not
(a) violate, conflict with or result in the breach of any provision of the
Issuer's Certificate of Formation or Amended and Restated Limited Liability
Company Agreement, (b) conflict with or violate any Law or Governmental Order
applicable to the Issuer or (c) conflict with, or result in any breach of,
constitute a default (or event which with the giving of notice or lapse of time,
or both, would become a default) under, require any consent under, or give to
others any rights of termination, amendment, acceleration, suspension,
revocation, or cancellation of, or result in the creation of any Encumbrance on
any of the assets or properties of the Issuer pursuant to, any note, bond,
mortgage or indenture, contract, agreement, lease, sublease, license, permit,
franchise or other instrument or arrangement to which the Issuer is a party or
by which any of such assets or properties are bound or affected, in each case
where such violation, conflict, breach or default would have a material adverse
effect on the ability of the Issuer to consummate the transactions contemplated
by this Subscription Agreement.
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Section 3.04. Absence of Litigation. There is no lawsuit,
action, proceeding or investigation pending or, to the Issuer's knowledge,
threatened against the Issuer which purports to affect the validity,
enforceability or legality of this Subscription Agreement or the consummation of
the transactions contemplated hereby.
Section 3.05. Compliance with Securities Laws. Neither the
Issuer, nor any of its Affiliates, nor any Person acting on its or their behalf
has (a) offered the Units, or solicited offers to buy the Units, under
circumstances that would require the registration of the Units under the
Securities Act or (b) engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the Securities Act) in
connection with any offer or sale of the Units.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
As an inducement to the Issuer to enter into this Subscription
Agreement, each Purchaser hereby represents and warrants to the Issuer as
follows:
Section 4.01. Organization and Authority of the Purchasers.
This Subscription Agreement has been duly executed and delivered by such
Purchaser and constitutes a valid and binding obligation of such Purchaser
enforceable against such Purchaser in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general principles of equity. If such Purchaser is not an individual:
such Purchaser is duly organized, validly existing and in good standing under
the laws of the state of its organization and has full power and authority to
enter into this Subscription Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby.
The execution and delivery of this Subscription Agreement by
such Purchaser, the performance by such Purchaser of its obligations hereunder
and the consummation by such Purchaser of the transactions contemplated hereby,
have been duly authorized by all requisite action on the part of such Purchaser.
Section 4.02. No Conflict. The execution, delivery and
performance of this Subscription Agreement by the Purchaser do not and will not
(a) if such Purchaser is not an individual, violate, conflict with or result in
the breach of any provision of its organizational documents, (b) conflict with
or violate any Law or Governmental Order applicable to the Purchaser or (c)
conflict with, or result in any breach of, constitute a default (or event which
with the giving of notice or lapse of time, or both, would become a default)
under, require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation or cancellation of, or result in
the creation of any Encumbrance on any of the assets or properties of the
Purchaser pursuant to, any note, bond, mortgage or indenture, contract,
agreement, lease, sublease, license, permit, franchise or other instrument or
arrangement to which the Purchaser is a party or by which any of such assets or
properties are bound or affected, in each case where such violation, conflict,
breach or default would have a material adverse effect on the ability of the
Purchaser to consummate the transactions contemplated by this Subscription
Agreement.
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Section 4.03. Absence of Litigation. There is no lawsuit,
action, proceeding or investigation pending or, to the Purchaser's knowledge,
threatened against the Purchaser which purports to affect the validity,
enforceability or legality of this Subscription Agreement or the consummation of
the transactions contemplated hereby.
Section 4.04. Investment Purpose. Such Purchaser is acquiring
the Units solely for the purpose of investment and not with a view to, or for
offer or sale in connection with, any distribution thereof and such Purchaser
acknowledges and agrees that in purchasing the Units in accordance with the
provisions hereof, such Purchaser is exercising its own independent judgment and
assessment, and that it has consulted and will consult with its own legal,
regulatory, tax, business, investment, financial and accounting advisors, as to
the consequences of the acquisition, ownership or any subsequent reoffer or
resale by it of the Units. Such Purchaser acknowledges that it understands that
any certificates evidencing the Units shall, until such time that the Units are
registered under the Securities Act, bear a legend stating that (i) the Units
have not been registered under the Securities Act, (ii) were issued in reliance
upon the Purchaser's representation that the Units were being acquired for
investment and not for resale, (iii) will not be transferred on the books of the
Issuer unless accompanied by an opinion of counsel, satisfactory to the Issuer,
that such transfer may be made without registration under the Securities Act or
that the Units have been so registered under a registration statement which is
in effect at the date of such transfer and (iv) are also subject to the
restrictions on transfer contained in this Subscription Agreement and no
transfer of the Units will be made on the books of the Issuer unless accompanied
by evidence of compliance with the terms of this Subscription Agreement.
Section 4.05. Status of Purchaser. The Purchaser is an
"accredited investor" within the meaning of Rule 501(a) of Regulation D
promulgated by the Securities and Exchange Commission under Section 4(2) of the
Securities Act, has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an investment
in the Units, and is able to bear the economic risk of such investment for an
indefinite period of time.
ARTICLE V
ADDITIONAL AGREEMENT
Section 5.01. Further Action. Subject to the terms and
conditions of this Subscription Agreement, each of the parties hereto shall use
all reasonable efforts to take or cause to be taken all appropriate action, do
or cause to be done all things necessary, proper or advisable, and execute and
deliver such documents and other papers, as may be required to carry out the
provisions of this Subscription Agreement and consummate and make effective the
transactions contemplated by this Subscription Agreement.
Section 5.02. Investigation. Each Purchaser acknowledges and
agrees that (i) the Issuer has furnished or given the Purchaser adequate access
to all information relating to the Issuer and the Units, including the value of
the Units, and has made available to such Purchaser an opportunity to ask
questions and receive answers concerning the terms and conditions of such
Purchaser's investment in the Units and (ii) based on the information obtained
by it as provided in (i) above and such other investigation as such Purchaser
has deemed adequate, it has made its
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own inquiry and investigation concerning the Issuer and has, based on such
information, formed an independent judgment concerning the Issuer and the Units,
including the value of the Units.
Section 5.03. Legal, Tax and Regulatory Treatment. Each
Purchaser represents and warrants to the Issuer that, in connection with the
purchase of the Units, and with respect to any information or communication
received regarding the value of the Units, it has had the opportunity to consult
with its own legal, regulatory, tax, business, investment, financial and
accounting advisors to the extent it deems necessary, and it has and will
continue to make its own decisions (including without limitation, decisions
regarding the appropriateness and/or suitability of the purchase of the Units)
based upon its own judgment and upon any advice from such advisors as it deems
necessary. Each Purchaser agrees that the Issuer has not made any
representation, warranty or assurance as to the legal, regulatory, tax,
business, investment, financial or accounting treatment or consequences
regarding the purchase of and investment in the Units, except as expressly set
forth herein.
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.01. Conditions to Obligations of the Issuer. The
obligations of the Issuer to consummate the transactions contemplated by this
Subscription Agreement as to each Purchaser shall be subject to the conditions
that (i) the representations and warranties of such Purchaser contained in this
Subscription Agreement shall have been true and correct when made and shall be
true and correct in all material respects on the Closing Date, with the same
force and effect as if made as of the Closing Date and (ii) the covenants and
agreements contained in this Subscription Agreement to be complied with by such
Purchaser at or prior to the Closing shall have been complied with in all
material respects.
Section 6.02. Conditions to Obligations of the Purchasers. The
obligations of the Purchasers to consummate the transactions contemplated by
this Subscription Agreement shall be subject to the conditions that (i) the
representations and warranties of the Issuer contained in this Subscription
Agreement shall have been true and correct when made and shall be true and
correct in all material respects on the Closing Date, with the same force and
effect as if made as of the Closing Date and (ii) the covenants and agreements
contained in this Subscription Agreement to be complied with by the Issuer at or
prior to the Closing shall have been complied with in all material respects.
ARTICLE VII
GENERAL PROVISIONS
Section 7.01. Indemnification. Each Purchaser and the Issuer
agree to indemnify any party hereto and its Affiliates seeking indemnification
hereunder and hold such party and its Affiliates harmless from any and all
damage, loss, liability and expense (including, without limitation, reasonable
expenses of investigation and reasonable attorney's fees and expenses in
connection with any Action) incurred or suffered by such party or any of its
Affiliates, arising out of any misrepresentation or breach of warranty, covenant
or agreement contained in this Subscription Agreement made or to be performed by
the indemnifying party.
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Section 7.02. Expenses. Except as otherwise specified in this
Subscription Agreement, all costs and expenses, including, without limitation,
fees and disbursements of financial advisors and accountants, incurred in
connection with the negotiation, execution, delivery and performance of this
Subscription Agreement and the transactions contemplated hereby shall be paid by
the respective party incurring such costs and expenses, whether or not the
Closing shall have occurred.
Section 7.03. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be deemed to
have been duly given or made as of the date delivered if delivered personally or
by courier, as of the date received if mailed by registered or certified mail
(postage prepaid, return receipt requested) or as of the date sent if sent by
cable, telecopy, telegram or telex, to the respective parties at the following
addresses or telecopier numbers (or at such other address or telecopier number
for a party as shall be specified in a notice given in accordance with this
Section 7.03):
(a) if to the Issuer:
ML SSG Delaware, LLC
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(b) if to any Purchaser, to such Purchaser, c/o
Merrill ▇▇▇▇▇ Investment Partners
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Princeton Corporate Campus
800 Scudders Mill Road, Section 2-G
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Section 7.04. Headings. The descriptive headings contained in
this Subscription Agreement are for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Subscription Agreement.
Section 7.05. Severability. If any term or other provision of
this Subscription Agreement is invalid, illegal or incapable of being enforced
by reason of any Law or public policy, all other terms and provisions of this
Subscription Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Subscription Agreement so as to effect the original intent of the parties
as closely as possible, in an acceptable manner, in order that the transactions
contemplated hereby are consummated as originally contemplated to the greatest
extent possible.
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Section 7.06. Assignments, Parties in Interest, Binding
Effect. None of the parties hereto may assign or delegate any of its rights or
obligations hereunder without the prior written consent of the other parties,
and any purported assignment without such consent is void. This Subscription
Agreement, including the representations and warranties herein, shall be binding
upon and inure solely to the benefit of the parties hereto and their respective
successors and permitted assigns whether so expressed or not, and, except as
expressly provided in Section 7.01, nothing herein, express or implied, is
intended to or shall confer upon any other Person any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this
Subscription Agreement.
Section 7.07. Governing Law. This Subscription Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York.
Section 7.08. Counterparts. This Subscription Agreement may be
executed in one or more counterparts, and by the different parties hereto in
separate 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Subscription Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
ML SSG DELAWARE, LLC PURCHASER
By:
------------------------------ -----------------------------
Name
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