EXHIBIT (d)(2)
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "Agreement") is made effective the
23rd day of May, 2003 by and among S. Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx X.
Xxxxx, Xxxxx X. Xxxxx, and Xxxxxx and Xxxxx X. Xxxxx as both joint tenants with
rights of survivorship and as custodians for their three minor children (each a
"Stockholder"), and MSI MERGER CORP., an Ohio corporation (the "Corporation").
BACKGROUND INFORMATION
A. The Stockholders are currently the holders of a majority of
the stock (the "Old Stock") of Media Source, Inc., a Delaware corporation
("Media Source").
B. Each Stockholder desires to contribute to the Corporation as
his or her initial capital contribution and in exchange for shares of common
stock of the Corporation (the "New Stock"), and the Corporation desires to
acquire, all of such Stockholder's interest in and to the Old Stock, subject to
the terms and conditions of this Agreement.
PROVISIONS
In consideration of their mutual promises, covenants, and agreements,
the parties hereto do hereby promise, covenant, and agree as follows:
1. SUBSCRIPTION. The Stockholders hereby subscribe to the
following number of shares of New Stock:
S. Xxxxxx Xxxxx 1200.8 shares
Xxxxxxx Xxxxx 8.7 shares
Xxxxxxx X. Xxxxx 270.0 shares
Xxxxx X. Xxxxx 13.5 shares
Xxxxxx and Xxxxx X. Xxxxx, 5.6 shares
JTWROS
Xxxxxx and Xxxxx X. Xxxxx, 1.4 shares
Custodians
In consideration for the New Stock, each of the Stockholders hereby
conveys, transfers and assigns to the Corporation all of such Shareholder's
right, title and interest in and to the Old Stock.
2. REPRESENTATIONS AND WARRANTIES. Each of the Stockholders
hereby represents and warrants as follows:
(a) He or she has sufficient knowledge and experience to evaluate
the merits and risks of his or her investment in the New
Stock; and
(b) He or she has been provided with, or given reasonable access
to, full and fair disclosure of all information material to
his investment in the new Stock; and
(c) He or she understands that no market is likely to exist for
the New Stock, and he or she does not anticipate the need to
sell the New Stock in the foreseeable future; and
(d) He or she is purchasing the New Stock for his or her own
account for investment purposes only and not with a view to
their distribution; and
(e) He or she understands that the offering of the New Stock by
the Corporation will not be registered under the Securities
Act of 1933, as amended (the "Act"), nor the securities law of
any state, and accordingly these securities may not be
offered, sold, pledged, hypothecated or otherwise transferred
or disposed of in the absence of registration or the
availability of an exemption from registration under the Act
and any applicable state securities law. He or she further
understands that the Corporation is under no obligation to
register the New Stock on his or her behalf or to assist him
in complying with an exemption from registration; and
(f) He or she can withstand the loss of his or her entire
investment without suffering serious financial difficulties.
The Stockholders understand and agree that the certificates, if any,
for the New Stock shall bear a legend that the New Stock shall not be offered,
sold, pledged, hypothecated or otherwise transferred or disposed of without
registration under the Act and any applicable state securities law or an opinion
of counsel or other evidence satisfactory to counsel for the Corporation that an
exemption from such registrations is available.
3. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
(b) Inurement. This Agreement shall be binding upon, and inure to
the benefit of, all parties hereto, their personal and legal
representatives, guardians, successors, and assigns.
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(c) Further Assurances. The parties agree that they and each of
them will take whatever action or actions are reasonably
necessary or desirable from time to time to effectuate the
provisions or intent of this Agreement, and to that end they
agree that they will execute, acknowledge, seal, and deliver
any further instruments or documents which may be necessary to
give force and effect to, or to carry out the intent of, this
Agreement or any of the provisions hereof.
(d) Headings. The headings herein are inserted only as a matter of
convenience and reference, and in no way define or describe
the scope of the Agreement or the intent of any provisions
hereof.
(e) Severability. In the event that any part of this Agreement
shall be held to be indefinite, invalid, or otherwise
unenforceable, the entire Agreement shall not fail on account
thereof, and the balance of the Agreement shall continue in
full force and effect.
(f) Amendments. This Agreement may not be modified or amended
except with the consent of all of the parties to this
Agreement.
(g) Not for Benefit of Creditors. This Agreement is not intended
for the benefit of nonparty creditors and does not grant any
rights to, or confer any benefits on, nonmember creditors or
any other person who is not a party to this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement effective the day and year written above.
STOCKHOLDERS: CORPORATION:
/s/ S. Xxxxxx Xxxxx
------------------------------------- MSI MERGER CORP.,
S. Xxxxxx Xxxxx an Ohio corporation
/s/ Xxxxxxx X. Xxxxx /s/ S. Xxxxxx Xxxxx
By:
------------------------------------- ---------------------------------
Xxxxxxx Xxxxx S. Xxxxxx Xxxxx, President
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxx and Xxxxx X. Xxxxx
-------------------------------------
Xxxxxx and Xxxxx X. Xxxxx, JTWROS
/s/ Xxxxxx and Xxxxx X. Xxxxx
-------------------------------------
Xxxxxx and Xxxxx X. Xxxxx, Custodians
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