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Exhibit 10.5
FORM OF DIRECTOR STOCK PURCHASE AGREEMENT
DIRECTOR STOCK PURCHASE AGREEMENT dated as of _________________, by
and between GCIH, Inc., a Delaware corporation (the "Company"), and ________
__________ (the "Director").
WHEREAS, the Company and the Director desire to enter into an
agreement that will provide for (i) the continuing service of the Director as a
member of the Board of Directors of the Company and/or Gerber Childrenswear,
Inc., a Delaware corporation ("GCI"), and (ii) the acquisition by the Director
of _______ shares of the Company's Class B Common Stock, par value $0.01 per
share, as adjusted for any stock split, stock dividend, share combination, share
exchange, recapitalization, merger, consolidation or other reorganization (the
"Class B Common") upon the terms and conditions set forth herein. The Class B
Common shall have the rights and preferences set forth in Exhibit A attached
hereto;
NOW, THEREFORE, in consideration of the mutual undertaking contained
herein, the parties hereto agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings.
"Book Value" of each share of Director Stock will be equal to the
quotient determined by dividing (A) the excess of Company's assets over its
liabilities as set forth on the Company's audited balance sheet which has been
delivered for the most recent year end, by (B) the total number of shares of
Common Stock outstanding as of the date of such balance sheet as stated therein,
on a fully diluted basis, as determined in accordance with GAAP consistently
applied.
"CMP" means Citicorp Mezzanine Partners, L.P., a Delaware limited
partnership.
"Common Stock" means the Class A Common, the Class B Common, the
Class C Common Stock of the Company, par value $0.01 per share (the "Class C
Common"), and the Class D Common Stock of the Company, par value $0.01 per share
(the "Class D Common"), as adjusted for any stock split, stock dividend, share
combination, share exchange, recapitalization, merger, consolidation or other
reorganization.
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"CVC" means Citicorp Venture Capital, Ltd., a New York corporation.
"GAAP" means U.S. generally accepted accounting principles, as in
effect from time to time and as adopted by the Company with the consent of its
independent public accountants, consistently applied.
"Director Stock" means all of such shares of Class B Common acquired
by the Director hereunder and all shares of Common Stock hereafter acquired by
the Director. Director Stock will continue to be Director Stock in the hands of
any holder other than the Director, including all transferees of the Director
(except for the Company and CVC (or its designee)), and except as otherwise
provided herein, each such other holder of Director Stock will succeed to all
rights and obligations attributable to the Director as a holder of Director
Stock hereunder. Director Stock will also include shares of the Company's
capital stock issued with respect to Director Stock by way of a stock split,
stock dividend or other recapitalization. Director Stock will cease to be
Director Stock when transferred pursuant to a Public Sale.
"Original Cost" of each share of Common Stock purchased hereunder
will be equal to $1.00 (as proportionately adjusted for all subsequent stock
splits, stock dividends and other recapitalizations).
"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 or a governmental entity or any
department, agency or political subdivision thereof.
"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
under the Securities Act effected through a broker, dealer or market maker.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, by and among the Company, CVC, the
Director and others, as in effect from time to time.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Stockholders Agreement" means the Stockholders Agreement, dated as
of the date hereof, by and among the Company, the Director, CVC and others, as
in effect from time to time.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes
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hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a partnership, association or other business entity if such Person
or Persons shall be allocated a majority of partnership, association or other
business entity gains or losses or shall be or control the managing director or
general partner of such partnership, association or other business entity.
2. Board of Directors. As of the date hereof, the Director agrees to
serve as a member of the Board of Directors of the Company and/or each of its
Subsidiaries. The Director agrees to devote his best efforts to the business and
affairs of the Company and its Subsidiaries.
3. Purchase and Sale of Director Stock.
(a) Upon execution of this Agreement, the Director will purchase,
and the Company will sell, _____ shares of Class B Common at a price of $1.00
per share. The Company will deliver to the Director certificates representing
such shares, and the Director will deliver to the Company a check or wire
transfer of immediately available funds in the aggregate amount of $_______.
Upon execution of this Agreement, the Director shall execute and deliver a
joinder to the Stockholders Agreement and a joinder to the Registration Rights
Agreement.
(b) In connection with the purchase and sale of the Director Stock
hereunder, the Director represents and warrants to the Company that:
(i) The Director Stock to be pursuant to the Director
pursuant to this Agreement will be acquired for the
Director's own account and not with a view to, or
intention of, distribution thereof in violation of the
Securities Act, or any applicable state securities laws,
and the Director Stock will not be disposed of in
contravention of the Securities Act or any applicable
state securities laws.
(ii) No commission, fee or other remuneration is to be paid
or given directly or indirectly, to any Person for
soliciting the Director to purchase the Director Stock.
(iii) The Director is a director of the Company, is
sophisticated in financial matters and is able to
evaluate the risks and benefits of the investment in the
Director Stock and has determined that such investment
in the Director Stock is suitable for the Director,
based upon the Director's financial situation and needs,
as well as the Director's other securities holdings.
(iv) The Director qualifies as an "accredited investor"
within the meaning of Rule 501(a) of Regulation D under
the Securities Act.
(v) Neither the Director nor, to the Director's knowledge,
the Company, any predecessor, affiliate, director,
officer, general partner or beneficial owner of 10% or
more of any class of the Company's
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equity securities, or any promoter presently connected
with the Company in any capacity:
(A) has filed a registration statement which is the
subject of a currently effective registration stop
order entered pursuant to any state's securities
law within the last five years;
(B) has been convicted within the last five years of
any felony or misdemeanor in connection with the
offer, purchase or sale of any security or any
felony involving fraud or deceit, including, but
not limited to, forgery, embezzlement, obtaining
money under false pretenses, larceny or conspiracy
to defraud;
(C) is currently subject to any state administrative
enforcement order or judgment entered by the state
securities administrator within the last five
years or is subject to any state's administrative
enforcement order or judgment in which fraud or
deceit, including, but not limited to, making
untrue statements of material facts and omitting
to state material facts, was found and the order
or judgment was entered within the last five
years;
(D) is subject to any state's administrative
enforcement order or judgment which prohibits,
denies or revokes the use of any exemption from
registration in connection with the offer,
purchase or sale of securities; or
(E) is currently subject to any order, judgment or
decree of any court of competent jurisdiction,
entered within the last five years, temporarily or
preliminarily restraining or enjoining such party
from engaging in or continuing any conduct or
practice in connection with the purchase or sale
of any security or involving the making of any
false filing with the state.
(vi) The Director is able to bear the economic risk of the
Director's investment in the Director Stock for an
indefinite period of time and the Director understands
that the Director Stock has not been registered under
the Securities Act and cannot be sold unless
subsequently registered under the Securities Act or an
exemption from such registration is available.
(vii) The Director has had an opportunity to ask questions and
receive answers concerning the terms and conditions of
the offering of Director Stock and has had full access
to such other information
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concerning the Company as the Director has requested.
The Director has reviewed, or has had an opportunity to
review, a copy of the Stock Purchase Agreement, pursuant
to which the Company will acquire substantially all of
the Stock of GCI from the Seller, and the Director is
familiar with the transactions contemplated thereby. The
Director has also reviewed, or has had an opportunity to
review, the following documents: (A) the Company's
Certificate of Incorporation and Bylaws; (B) the loan
agreements, notes and related documents with GCI's
senior lenders; (C) the loan agreements, notes and
related documents with GCI's senior subordinated lender;
and (D) all of the materials provided by the Company and
its Subsidiaries to any Person providing financing to
the Company and its Subsidiaries, including, but not
limited to, the Company's and GCI's pro forma balance
sheets, as well as financial projections, estimates,
forecasts, budgets, summaries, reports and other related
documents.
(viii) This Agreement constitutes the legal, valid and binding
obligation of the Director, enforceable in accordance
with its terms, and the execution, delivery and
performance of this Agreement by the Director does not
and will not conflict with, violate or cause a breach of
any agreement, contract or instrument to which the
Director is a party or any judgment, order or decree to
which the Director is subject.
4. Restrictions on Transfer.
(a) The certificates representing the Director Stock will bear the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED AS OF ____________, 1997, HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER.
(b) No holder of Director Stock may sell, transfer or dispose of any
Director Stock (except pursuant to an effective registration statement under the
Securities Act) without first delivering to the Company an opinion of counsel
(reasonably acceptable in form and substance to the Company) that neither
registration nor qualification under the Securities Act and applicable state
securities laws is required in connection with such transfer.
(c) Each holder of Director Stock agrees not to effect any public
sale or distribution of any Director Stock or other equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for
any of the Company's equity securities, during
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the seven days prior to and the 180 days after the effectiveness of any
underwritten public offering, except as part of such underwritten public
offering or if otherwise permitted by the Company.
5. Repurchase Option.
(a) The Director Stock is subject to repurchase by the Company or
its designees (the "Purchasing Entity") at any time and from time to time
pursuant to the terms and conditions set forth in this paragraph 5 (the
"Repurchase Option").
(b) The purchase price for each Share of Director Stock will be the
then applicable Book Value for such share.
(c) The Purchasing Entity may elect to purchase all or any portion
of the Director Stock by delivering written notice (the "Repurchase Notice") to
the Director. The Repurchase Notice will set forth the number of shares to be
acquired, the nominated purchaser of the shares, the aggregate consideration to
be paid for such shares and the time and place for the closing of the
transaction.
(d) The closing of the purchase of the Director Stock pursuant to
the Repurchase Option shall take place on the date designated by the Purchasing
Entity in the Repurchase Notice, which may be the date of such Repurchase
Notice. The Company and the Director agree that the closing of the purchase of
such shares shall be, for all purposes, deemed to have occurred upon the tender
by the Purchasing Entity to the Director of the purchase price thereof. The
Purchasing Entity will pay for the Director Stock to be purchased pursuant to
the Repurchase Option by delivery of a check in the aggregate amount of the
purchase price for such securities. The Purchasing Entity of Director Stock
hereunder will be entitled to receive customary representations and warranties
from the Director regarding such sale.
6. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Director that:
(a) Immediately following the consummation of the Equity
Transactions, the authorized capital stock of the Company shall consist of (a)
_______ shares of Class A Common, of which _________ shares shall be issued and
outstanding, (b) _______ shares of Class B Common, of which _________ shares
shall be issued and outstanding, (c) _______ shares of Class C Common, of which
_______ shares shall be issued and outstanding, (d) _________ shares of Class D
Common, of which no shares shall be issued and outstanding and _________ shares
shall be reserved for issuance upon exercise of the Warrant held by CMP, and (e)
_________ shares of 12.00% Series A Preferred, of which _________ shares shall
be issued and outstanding. Except as set forth in this Section 5(a) and except
for capital stock of the Company's Subsidiaries owned directly or indirectly by
the Company, as of immediately following the consummation of the transactions
contemplated hereby, neither the Company nor any Subsidiary shall have
outstanding any stock or securities convertible or exchangeable for any shares
of its capital stock or containing any profit participation features, nor shall
it have outstanding any rights or options to subscribe for or to purchase its
capital stock or any stock or securities convertible into or exchangeable for
its capital stock or any stock appreciation rights or phantom stock plans. As of
immediately following the consummation of the
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transactions contemplated hereby, all of the outstanding shares of the Company's
capital stock shall be validly issued, fully paid and nonassessable.
(b) There are no statutory or, to the best of the Company's
knowledge, contractual stockholders preemptive rights or rights of refusal with
respect to the issuance of the Director Stock hereunder. To the best of the
Company's knowledge, the Company has not violated any applicable federal or
state securities laws in connection with the offer, sale or issuance of any of
its capital stock, and the offer, sale and issuance of the Director Stock
hereunder do not require registration under the Securities Act or any applicable
state securities laws. To the best of the Company's knowledge, there are no
agreements between the Company's stockholders with respect to the voting or
transfer of the Company's capital stock, except for (a) the Stockholders
Agreement, (b) the Registration Rights Agreement and (c) this Director Stock
Purchase Agreement.
7. Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, mailed
by certified or registered mail, return receipt requested and postage prepaid,
or sent via a nationally recognized overnight courier, or sent via facsimile to
the recipient. Such notices, demands and other communications will be sent to
the address indicated below:
To the Company:
GCIH, Inc.
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Attention: President
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Citicorp Venture Capital, Ltd.
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Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Director:
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To CVC:
Citicorp Venture Capital
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Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
8. Miscellaneous.
(a) Survival of Representations and Warranties. All representations
and warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(b) Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Director Stock in violation of any provision of this Agreement
shall be null and void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Director Stock as the owner of
such stock for any purpose.
(c) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(d) Complete Agreement. This Agreement and the other documents of
even date herewith which have been executed by the Company and the Director
embody the complete agreement and understanding among the parties and supersede
and preempt any prior under standings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
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(e) 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.
(f) Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Director, the Company, CVC and their respective successors and assigns
(including subsequent holders of Director Stock); provided that the rights and
obligations of the Director under this Agreement shall not be assignable except
in connection with a permitted transfer of Director Stock hereunder.
(g) Governing Law. The corporate law of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement and the exhibits hereto will be governed by and
construed in accordance with the domestic laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York.
(h) Remedies. Each of the parties to this Agreement (including CVC)
will be entitled to enforce its rights under this Agreement specifically, to
recover damages and costs (including reasonable attorneys' fees) caused by 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 (without posting any bond or deposit)
for specific performance and/or other injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.
(i) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company, the
Director and CVC.
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IN WITNESS WHEREOF, the parties hereto have executed this Director
Stock Purchase Agreement as of the date first written above.
GCIH, INC.
By: /s/ ▇▇▇▇▇▇▇ Solar
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Name: ▇▇▇▇▇▇▇ SOLAR
Title:Senior Vice President
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[Director]
ACKNOWLEDGED AND AGREED:
CITICORP VENTURE CAPITAL, LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
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CONSENT OF SPOUSE
The undersigned spouse of the Director named in the attached
Agreement has read and understands the terms of the Agreement and has had an
opportunity to discuss it with individuals of her choice. The undersigned
understands that even if the securities referred to in the Agreement are
considered to be a part of the "marital property" belonging to her and the
Director, the Agreement restricts the transfer or distribution of those
securities to anyone other than the Director, a "Permitted Transferee" as such
term is defined in the Stockholders Agreement, the company which issued the
securities and certain other persons. The undersigned agrees to these
restrictions and waives any rights (other than to the economic value of such
securities) she might otherwise have in those shares as specifically
identifiable property.
______________________ (Signature)
______________________ (Print Name)
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EXHIBIT A
Certificate of Incorporation
See attached.
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