SUBSCRIPTION AGREEMENT
EXHIBIT 10.12
This SUBSCRIPTION AGREEMENT (this “Agreement”), dated as of August 16, 2007, is
between CPM HOLDINGS, INC., a Delaware corporation (the “Company”), and the individual
named on Schedule 1 hereto (“Purchaser”).
The Company and Purchaser desire to enter into an agreement pursuant to which Purchaser shall
purchase, and the Company shall sell, the number of shares of the Company’s Common Stock, par value
$0.001 per share (the “Common Stock”), set forth on Schedule 1. Such shares of
Common Stock, together with all shares of the Company’s capital stock hereafter acquired by
Purchaser are sometimes collectively referred to herein as “Purchaser Stock.”
GGEP/CPM Holdings, LLC, a Delaware limited liability company (“Holdings”), is a party
to this Agreement solely with respect to Sections 5 and 7, and in no event shall
Holdings or its affiliates, transferees, successors and assigns be deemed to be a guarantor of, or
an obligor with respect to, any of the obligations of the Company set forth herein. Notwithstanding
the foregoing, Holdings and its affiliates, transferees, successors and assigns shall be deemed to
be intended third-party beneficiaries of this entire Agreement. Holdings and its affiliates,
transferees, successors and assigns are sometimes collectively referred to herein as the
“Investors” (provided that no Person (as defined below) shall qualify as an Investor unless
so designated by Holdings).
Definitions of certain capitalized terms used in this Agreement are set forth in Section
12.
The parties hereto agree as follows:
1. Purchase and Sale of Purchaser Stock.
(a) The Closing. The closing of the purchase and sale of the Purchaser Stock (the
“Closing”) shall take place at the offices of Mayer, Brown, Xxxx & Maw LLP, located at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on August 16, 2007 or at such other place or at such other time
as may be agreeable to the parties (the “Closing Date”). At the Closing, Purchaser shall
purchase, and the Company shall sell, the number of shares of Common Stock set forth on
Schedule 1 for the aggregate purchase price set forth on Schedule 1. At the
Closing, the Company shall deliver to Purchaser a certificate or certificates representing the
number of shares of Common Stock set forth on Schedule 1. At the Closing, Purchaser shall
pay the Company an amount in cash equal to the purchase price for the Common Stock set forth on
Schedule 1 hereto.
(b) Representations of Purchaser. In connection with the purchase and sale of the
Purchaser Stock hereunder, Purchaser hereby represents and warrants to the Company that:
(i) The Purchaser Stock shall be acquired for Purchaser’s own account and not with a
view to, or intention of, distribution thereof in violation of the Securities Act of 1933,
as amended (the “Securities Act”), or any applicable state securities laws, and the
Purchaser Stock shall not be disposed of in contravention of the Securities Act, or any
applicable state securities laws.
(ii) Purchaser (a) is an “accredited investor” as defined in Rule 501(a) under
the Securities Act or (b) by reason of Purchaser’s business and financial experience, and
the business and financial experience of those retained by Purchaser to advise Purchaser
with respect to Purchaser’s investment in the Purchaser Stock being purchased hereunder,
Purchaser, together with such advisors, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the risks and benefits of
the investment in the Purchaser Stock.
(iii) Purchaser is able to bear the economic risk of the investment in the Purchaser
Stock being purchased hereunder, including the complete loss of such investment in the
Purchaser Stock to be purchased by the Purchaser hereunder, for an indefinite period of time
because the Purchaser Stock have not been registered under the Securities Act and,
therefore, cannot be sold unless subsequently registered under the Securities Act or an
exemption from such registration is available.
(iv) Purchaser has had an opportunity to ask questions and receive answers concerning
the terms and conditions of the offering of Purchaser Stock hereunder and has had full
access to such other information concerning the Company as Purchaser has requested.
(v) This Agreement constitutes, when executed and delivered in accordance with the
terms hereof, will constitute, the legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in equity or at
law) or by an implied covenant of good faith and fair dealing. The execution, delivery and
performance of this Agreement by Purchaser does not and will not conflict with, violate or
cause a breach of any agreement, contract or instrument to which Purchaser is a party or any
judgment, order or decree to which Purchaser is subject.
(c) Purchaser Acknowledgement. As an inducement to the Company to issue Purchaser
Stock to Purchaser, and as a condition thereto, Purchaser acknowledges and agrees that:
(i) neither the issuance of the Purchaser Stock to Purchaser nor any provision
contained herein shall entitle Purchaser to remain an employee or consultant of the Company
or affect the right of the Company to terminate Purchaser’s employment or consulting
relationship at any time for any reason; and
(ii) the Company shall have no duty or obligation (other than those duties and
obligations to all stockholders as required under applicable law) to disclose to Purchaser,
and Purchaser shall have no right to be advised of, any material information regarding the
Company at any time prior to, upon or in connection with the repurchase of Purchaser Stock
upon the termination of Purchaser’s employment or consulting relationship with the Company
or as otherwise provided hereunder.
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(d) Representations and Warranties of the Company. In connection with the purchase
and sale of Purchaser Stock hereunder, the Company hereby represents and warrants to Purchaser
that;
(i) The Company is a corporation duly organized, validly existing and in good standing
under the laws of Delaware.
(ii) The execution, delivery and performance of this Agreement has been duly authorized
by the Company. This Agreement constitutes a valid and binding obligation of the Company
enforceable against it in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law) or by an
implied covenant of good faith and fair dealing.
(iii) Any shares of the Company’s capital stock acquired hereunder shall, upon payment
of the purchase price therefor by Purchaser as provided herein, be fully paid and
nonassessable.
(iv) The Company has heretofore delivered to Purchaser a true and correct copy of the
Company’s certificate of incorporation and bylaws, each as amended to date. As of the date
hereof, without giving effect to (x) the issuance and sale by the Company of the Purchaser
Stock to Purchaser hereunder and (y) the issuances and sales by the Company of shares of
Common Stock to certain other purchasers on the date hereof, (x) 876,875 shares of the
Company’s Common Stock are issued and outstanding, (y) 45,000 shares of Company’s Restricted
Common Stock are issued and outstanding and (z) options to purchase 84,000 shares of the
Company’s Common Stock are issued and outstanding.
(v) The Company has heretofore furnished to Purchaser its consolidated balance sheets
and related statements of income, stockholder’s equity and cash flows as of and for the
fiscal quarter and the portion of the fiscal year ended May 31, 2007. Such financial
statements present fairly the financial condition and results of operations and cash flows
of the Company and its consolidated subsidiaries as of May 31, 2007 and for the month ended
May 31, 2007.
2. Restrictions on Transfer.
(a) Transfer of Purchaser Stock. Prior to the consummation of a Qualified Public
Offering, Purchaser shall not, directly or indirectly, sell, assign, pledge, offer or otherwise
transfer or encumber or enter into any agreement to sell, assign, pledge, offer or transfer any
interest in (a “Transfer”) any Purchaser Stock or any shares of the Company’s capital stock
received by Purchaser either pursuant to any incentive plan adopted by the Company’s Board of
Directors or as a result of stock splits, stock dividends, recapitalization or similar events,
except pursuant to the provisions of Sections 5 or 6 hereof or pursuant to the
provisions of subsections 3(b) (collectively, “Exempt Transfers”). No Transfer of
any such Purchaser Stock in violation of
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this Section 2 shall be made or recorded on the books of the Company and any such
Transfer shall be void and of no effect.
(b) Certain Permitted Transfers. The restrictions contained in this Section 2
shall not apply with respect to Transfers of Purchaser Stock (i) pursuant to applicable laws of
descent and distribution, and (ii) among Purchaser’s Family Group; provided that the
restrictions contained in this Section 2 shall continue to be applicable to the Purchaser
Stock after any such Transfer and the transferees of such Purchaser must agree in writing to be
bound by the provisions of this Agreement prior to any such Transfer. Prior to making any Transfer
of Purchaser Stock pursuant to this subsection 2(b), Purchaser, Purchaser’s Family Group or
Purchaser’s estate shall deliver a written notice (the “Transfer Notice”) to the Company.
The Transfer Notice shall disclose in reasonable detail the identity of the prospective
transferee(s) and the terms and conditions of the proposed Transfer.
(c) Continuation of Restrictions. The restrictions on the Transfer of Purchaser Stock
set forth in this Section 2 shall continue with respect to all Purchaser Stock following
any Transfer thereof other than a Transfer to the Company.
3. Additional Restrictions on Transfer.
(a) Legend. The certificates representing the Purchaser Stock sold to Purchaser
hereunder, shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A SUBSCRIPTION
AGREEMENT BETWEEN CPM HOLDINGS, INC. AND THE PURCHASER OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE (COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY).
NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SUCH SUBSCRIPTION AGREEMENT AND (A) PURSUANT TO A REGISTRATION
STATEMENT EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) PURSUANT TO
AN EXEMPTION FROM REGISTRATION THEREUNDER. THE HOLDER OF THIS CERTIFICATE, BY
ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL THE PROVISIONS OF SUCH
SUBSCRIPTION AGREEMENT.
(b) Opinion of Counsel. No holder of Purchaser Stock may Transfer any Purchaser Stock
(except pursuant to an effective registration statement under the Securities Act) without first
delivering to the Company (if requested) an opinion of counsel reasonably satisfactory to, and
acceptable in form and substance to, the Company, that registration under the Securities Act is not
required in connection with such Transfer.
(c) Holdback. Each holder of Purchaser Stock agrees not to effect any public sale or
distribution of any equity securities of the Company, or any securities convertible into or
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exchangeable or exercisable for such securities, during the seven days prior to and the 180
days after the effectiveness of any underwritten registration of securities of the Company or its
Subsidiaries, except as part of such underwritten registration if otherwise permitted or as may be
agreed to by the underwriters of such registered securities.
4. Definition of Purchaser Stock. For all purposes of this Agreement, Purchaser
Stock shall continue to be Purchaser Stock in the hands of any holder other than Purchaser, and
each such other holder of Purchaser Stock shall succeed to all rights and obligations attributable
to Purchaser as a holder of Purchaser Stock hereunder. Purchaser Stock shall also include (a)
shares of the Company’s capital stock issued with respect to shares of Purchaser Stock by way of a
stock split, stock dividend, merger, consolidation, reorganization or other recapitalization, and
(b) shares of the Company’s capital stock issued upon conversion or exchange of any of the
Purchaser Stock. Notwithstanding the foregoing, shares of Purchaser Stock shall cease to be
Purchaser Stock and shall no longer be subject to the limitations and restrictions contained
herein, when such shares have been acquired by the Company or when acquired by any purchaser
pursuant to (i) an offering registered with the Securities and Exchange Commission, a transaction
under Rule 144 or similar rule then in effect under the Securities Act which transaction complies
with the provisions of Section 3, or (iii) a Company Sale.
5. Drag-Along Right. If at any time any of the Investors holding in the aggregate a
majority of the Fully Diluted Shares, proposes to sell 35% or more of the Fully Diluted Shares (a
“Disposition”), it or they may require the holders of Purchaser Stock to sell the same
proportion and type of their Purchaser Stock as such Investors are selling of their securities by
setting forth such requirement in a notice to Purchaser setting forth in reasonable detail the
terms of the Disposition. In such event, the holders of Purchaser Stock shall vote for, consent to
and not raise any objections against such Disposition. The holders of Purchaser Stock shall take
all necessary and reasonably desirable actions in connection with the consummation of the
Disposition, and shall be entitled to participate in such Disposition on the same terms and
conditions as other holders of the Company’s capital stock or interests in any of the Company’s
debt instruments (including, without limitation, such Investor and/or such Affiliates) and to
receive the same consideration with respect to the Purchaser Stock as received by other holders of
the Company’s capital stock or interests in any of the Company’s debt instruments (including,
without limitation, such Investor and/or such Affiliate). Notwithstanding anything to the contrary
set forth herein, Purchaser shall not be obligated in connection with any such Disposition to agree
to indemnify the purchaser thereunder in an amount in excess of the proceeds received or to be
received by Purchaser in such Disposition. Without limiting the generality of the foregoing:
(a) Sale of Stock. If the Disposition is structured as a sale of shares of the
Company’s capital stock, the holders of Purchaser Stock shall agree to sell to the purchaser or
purchasers of such capital stock all shares of Purchaser Stock and all other capital stock that
such holder is required to sell pursuant to the preceding paragraph, on the same terms and
conditions as such Investor is selling its or their shares of the Company’s capital stock.
(b) Merger, etc. If the Disposition is in the form of a merger, consolidation or
other reorganization, the holders of Purchaser Stock shall (i) tender all shares of Purchaser Stock
and other capital stock held by each holder in connection with such merger, consolidation or other
reorganization on the same terms and conditions as such Investor and/or its Affiliates and
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(ii) vote in favor thereof and waive any dissenters rights, appraisal rights or similar rights in
connection with such merger, consolidation or other reorganization.
(c) Sale of Assets. If at any time an offer is made to acquire substantially all of
the assets of the Company or the Company which offer must be approved by a resolution of the
Company’s stockholders, each holder of Purchaser Stock shall vote all of the Purchaser Stock held
by it, in respect of such offer, in the same manner as the Company’s capital stock held by the
Investors is voted.
(d) Company Sale; Liquidation, Dissolution or Winding Up. In the event the Investors
vote in favor of a Company Sale or a complete liquidation, dissolution or winding up of the Company
and/or its Subsidiaries, each holder of Purchaser Stock shall vote all of the Purchaser Stock held
by such holder in favor thereof and shall consent to and raise no objections to such action, and as
applicable, waive any dissenters rights, appraisal rights of similar rights with respect thereto.
(e) Assignment of Rights and Obligations. At any time, the Investors may assign any of
their rights and obligations under this Section 5 in whole or in part to any third party.
6. Registration Rights.
(a) Piggy-back Registration Rights. If any of the shares of the Company’s capital
stock are registered under the Securities Act (other than a registration on Form S-4 or S-8 or any
successor or similar forms thereto), or any similar federal law then in force, then, subject to the
limitations set forth in subsection 6(b) below, the holders of Purchaser Stock shall be
entitled to the registration of the same type and class of their shares of the Company’s capital
stock with the Company bearing the registration expenses in connection therewith (exclusive of
underwriting discounts and commissions).
(b) Limitation on Registration Rights. If the managing underwriters in connection
with such registration advise the Company that in their opinion the number of securities requested
to be included in such registration exceeds the number that can be sold in an orderly manner in
such offering within a price range acceptable to the Company, the Company shall include in such
registration shares of the Company’s capital stock requested to be included therein by the Company,
any other Person who has registration rights, and such additional shares of the Company’s capital
stock requested to be included in such registration, including any Purchaser Stock, pro
rata among all holders of such shares of the Company’s capital stock on the basis of the
number of shares owned by each such holder; provided, however, that if such
managing underwriters advise the Company that the allocations in the immediately preceding sentence
would have an adverse impact on the proposed sale of securities, the Company shall include in such
registration (i) first, any shares of the Company’s capital stock requested to be included therein
by the Company and any other Person who has registration rights (other than any parties, including
Purchaser, exercising piggy-back registration rights), (ii) second, consistent with the other
provisions of this subsection 6(b), such additional shares of the Company’s capital stock
requested to be included in such registration, including any Purchaser Stock, pro
rata among all holders of such shares of the Company’s capital stock on the basis of the
number of shares owned by each such holder.
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(c) The Company shall not be obligated to effect any registration under this Section 6
incidental to the registration of any of its securities in connection with mergers, acquisitions,
exchange offers, dividend reinvestment plans or stock option or other employee benefit plans.
(d) Future Registration Rights. Notwithstanding anything to the contrary contained
herein, the Purchaser hereby acknowledges and agrees that the Company shall at all times have the
right to grant registration rights to any Person that are equal to, having priority over or that
are more favorable than those contained herein.
7. Agreement to Vote Shares of Purchaser Stock.
(a) Purchaser hereby agrees to vote all shares of Purchaser Stock and all other shares of
capital stock of the Company owned or held of record by Purchaser at any annual meeting or special
meeting of the stockholders in favor of, or take all actions by written consent in lieu of any such
meeting as may be necessary to cause, the election as members of the Board of Directors of the
Company (the “Board of Directors”) those individuals designated by the Investors (the
“Investor Directors”).
(b) Purchaser will vote all shares of Purchaser Stock and all other shares of capital stock of
the Company owned or held of record by Purchaser and take all necessary or desirable actions (in
his or her capacity as a stockholder of the Company) as are reasonably requested to prevent the
removal, without cause, of the Investor Directors without the prior written consent of the
Investors.
(c) In the event that a vacancy is created on the Board of Directors at any time by the death,
disability, retirement, resignation or removal of any member of the Board of Directors, or for any
other reason there shall exist or occur any vacancy on the Board of Directors, Purchaser hereby
agrees to take such actions as will result in the election or appointment as a director of an
individual designated or elected to fill such vacancy and serve as a director by the Investors.
8. Recapitalizations, etc. The provisions of this Agreement shall apply, to the full
extent set forth herein with respect to the Purchaser Stock, to any and all shares of capital stock
of the Company or any capital stock, partnership units or any other security evidencing ownership
interests in any successor or assign of the Company (whether by merger, consolidation, sale of
assets or otherwise) which may be issued in respect of, in exchange for, or substitution of the
Purchaser Stock, by reason of any stock dividend, split, reverse split, combination,
recapitalization, liquidation, reclassification, merger, consolidation or otherwise.
9. Termination. This Agreement shall terminate and shall thereafter have no further
force or effect and shall not be binding on any party hereto on the earlier of (i) a Company Sale,
and (ii) the tenth anniversary of the Closing Date.
10. Definitions. The following terms are defined as follows:
“Affiliate” with respect to any Person, means any other Person who,
either directly or through one or more intermediaries, Controls, is Controlled by or
under common Control with such first Person.
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“Company Sale” means (i) a merger or consolidation of the Company with
any other person or entity (other than a wholly-owned subsidiary of the Company)
other than (A) a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) 50% or more of the combined voting power of voting securities of
the Company or such surviving entity outstanding immediately after such merger or
consolidation or (B) a merger or consolidation affected to implement a
recapitalization of the Company (or similar transaction); (ii) the sale of 50% or
more of the voting securities of the Company in a single transaction or a series of
related transactions; or (iii) a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all of
its assets.
“Control” (including, with correlative meaning, all conjugations
thereof) as used in this Agreement means with respect to any Person, the ability of
another Person to control or direct the actions or policies of such first Person,
whether by ownership of voting securities, by contract or otherwise.
“Family Group” means, with respect to the Purchaser, any child,
stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse,
sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, including adoptive relationships, any person
sharing the Purchaser’s household (other than a tenant or employee), a trust in
which these persons (or the Purchaser) control the management of assets, and any
other entity in which these persons (or the Purchaser) own more than fifty percent
of the voting interests, or any other transferee specifically approved by the Board
of Directors of the Company after taking into account any state or federal tax or
securities laws applicable to such shares. In such case, the transferee or other
recipient shall receive and hold the shares of Purchaser Stock so Transferred
subject to the provisions of this Agreement, and there shall be no further Transfer
of such shares except in accordance with the terms of this Section.
“Fully Diluted Shares” means, as of any date, the number of shares of
Common Stock outstanding as of such date plus the aggregate number of shares
of Restricted Stock and Common Stock issuable upon the exercise of all outstanding
options, warrants and rights to acquire shares of Common Stock (including
outstanding stock options which are not then exercisable) and the aggregate number
of shares of Common Stock issuable upon the conversion of all outstanding securities
that are convertible into shares of Common Stock.
“Person” means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any department
agency or political subdivision thereof.
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“Public Sale” means any sale pursuant to a registered public offering
under the Securities Act or any sale to the public pursuant to Rule 144 promulgated
under the Securities Act effected through a broker, dealer or market maker.
“Qualified Public Offering” means the sale, in an underwritten public
offering, registered under the Securities Act, of shares of the Company’s Common
Stock, which results either in (a) aggregate gross proceeds from such sale (before
underwriters’ discounts and selling commissions) greater than or equal to
$25,000,000, or (b) the sale of a number of shares of Common Stock in such offering
which, after giving effect to the consummation of the sale, constitute at least 30%
of the Fully Diluted Shares then outstanding.
“Subsidiary” means any corporation of which the Company owns, directly
or through one or more Subsidiaries, securities having a majority of the ordinary
voting power in electing the board of directors of such corporation.
GENERAL PROVISIONS
11. Notices. All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given (i) when personally delivered, sent by telecopy (with hard copy to follow) or
overnight express courier, or (ii) five days following mailing by certified or registered mail,
postage prepaid and return receipt requested. Notices, demands, and communications to the Company,
the Purchaser and the Investors shall, unless another address is specified in writing, be sent to
the address or telecopy number indicated below:
Notices to the Company:
CPM Holdings, Inc.
x/x Xxxxxxx Xxxxxx Xxxxxx Xxxxxxx, X.X.X.
000 Xxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx, Xx.
x/x Xxxxxxx Xxxxxx Xxxxxx Xxxxxxx, X.X.X.
000 Xxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx, Xx.
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
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Notices to the Investors:
GGEP/CPM Holdings, LLC
x/x Xxxxxxx Xxxxxx Xxxxxx Xxxxxxx, X.X.X.
000 Xxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx, Xx.
x/x Xxxxxxx Xxxxxx Xxxxxx Xxxxxxx, X.X.X.
000 Xxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx, Xx.
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Notices to Purchaser:
See Address of Purchaser
set forth on Schedule 1
set forth on Schedule 1
12. Severability. If any provision of this Agreement shall be declared by any court
of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this
Agreement shall not be affected and shall remain in full force and effect.
13. Entire Agreement. This Agreement constitutes the entire agreement among the
parties hereto and supersedes all prior agreements and understandings, oral and written, among the
parties hereto with respect to the subject matter hereof.
14. Counterparts. This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement.
15. Successors and Assigns. To the extent applicable, this Agreement is intended to
bind and inure to the benefit of and be enforceable by Purchaser, the Company and the Investors,
and their respective successors and assigns, except that Purchaser may not assign any of
Purchaser’s rights or obligations hereunder (except as expressly provided herein).
16. Remedies. Each of the parties to this Agreement shall be entitled to enforce its
rights under this Agreement specifically, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights existing in its favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction for preliminary injunctive relief, temporary restraining
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orders and/or any other temporary equitable remedies in order to enforce or prevent any
violations of the provisions of this Agreement.
17. Amendments and Waivers. Any provision of this Agreement may be amended or waived
only with the prior written consent of all parties hereto.
18. No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any Person.
19. Descriptive Headings. The descriptive headings of this Agreement are for
reference, purposes only and shall not affect the meaning or interpretation of this Agreement.
20. APPLICABLE LAW; JURISDICTION; VENUE. THE CORPORATE LAW OF DELAWARE SHALL GOVERN
ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. OTHERWISE THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT RECORD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. WITH RESPECT TO ANY SUIT, ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR TO THE TRANSACTIONS CONTEMPLATED HEREBY (“PROCEEDINGS”),
EACH PARTY IRREVOCABLY (I) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY;
AND (II) WAIVES ANY OBJECTION THAT IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY
PROCEEDINGS BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT SUCH PROCEEDINGS HAVE BEEN BROUGHT IN
AN INCONVENIENT FORUM AND FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDINGS,
THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY.
21. TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THE
PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF OR THEREOF. EACH OF THE PARTIES HERETO ALSO
WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND THAT MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF THE OTHER PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN
ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED
FUTURE DEALINGS. EACH OF THE PARTIES HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS RESPECTIVE LEGAL COUNSEL, AND THAT IT
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KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH SUCH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written.
| CPM HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxxx Ostrich | |||
| Name: | Xxxxxxx Ostrich | |||
| Title: | Chief Financial Officer | |||
| PURCHASER: |
||||
| /s/ Xxxx Xxxxxxxxx | ||||
| Xxxx Xxxxxxxxx | ||||
| WITH RESPECT TO SECTIONS 5 AND 7 ONLY: GGEP/CPM HOLDINGS, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Authorized Signatory | |||
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