EXHIBIT L
SUBSCRIPTION AGREEMENT
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THIS SUBSCRIPTION AGREEMENT ("Agreement") is made as of
August 5, 2002, between WYNNCHURCH CAPITAL PARTNERS, L.P., a
Delaware limited partnership ("Wynnchurch"), Wynnchurch Capital
Partners Canada, L.P., an Alberta, Canada limited partnership
("Wynnchurch Canada", and Wynnchurch and Wynnchurch Canada
collectively, "Grantors"), and Xxxxxx Xxxxxxxx ("Subscriber").
RECITALS:
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A. The Grantors and Subscriber are executing and
delivering this Agreement in reliance upon the exemption from
registration of securities afforded by the provisions of
Regulation D ("Regulation D") as promulgated by the United States
Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Securities Act").
B. The Subscriber desires to subscribe for and purchase a
Warrant issued by Grantors in the form of Exhibit A hereto (the
"Warrant") permitting Subscriber to purchase up to 500,000 shares
of common stock, par value $0.01 per share (the "Shares") of
Alternative Resources Corporation, a Delaware corporation (the
"Company") on the terms and conditions set forth in the Warrant,
and the Grantors desire to issue the Warrant to the Subscriber,
on the terms and subject to the conditions herein contained.
AGREEMENTS:
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Therefore, in consideration of their respective promises
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
Subscription for Shares
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1.1 Subscription for Shares. The Subscriber hereby subscribes
for and agrees to purchase from the Grantors, and the Grantors
hereby agree to sell to the Subscriber, the Warrant, at a price
equal to $10.00 (the "Subscription Price"). The Subscription
Price shall be payable by the Subscriber in immediately available
funds on the date hereof (the "Closing Date"). Upon delivery to
the Company of the Subscription Price in immediately available
funds, the Grantors shall execute and deliver to the Subscriber
the Warrant.
ARTICLE II
Representations and Warranties
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2.1 Representations and Warranties of Subscriber. Subscriber
represents and warrants to the Grantors as follows:
Exhibits: Page 2
(a) Subscriber has full power and authority to enter into this
Agreement, to purchase the Warrant hereunder, and to carry out
and perform his obligations under the terms of this Agreement and
the Warrant.
(b) No consent, authorization, order or approval of, or filing
or registration with, any governmental commission, board or other
regulatory body of the United States or any state or political
subdivision thereof is required for or in connection with the
consummation by Subscriber of the transaction contemplated
hereby, except for filings required pursuant to the Securities
Act or the Securities and Exchange Act of 1934, as amended.
(c) Neither the execution and delivery of this Agreement by
Subscriber, nor the consummation by Subscriber of the transaction
contemplated hereby, will conflict with or result in a breach of
any statute or administrative regulation, or of any order, writ,
injunction, judgment or decree of any court or governmental
authority or of any arbitration award.
(d) Subscriber is not, individually, a party to any unexpired,
undischarged or unsatisfied written or oral contract, agreement,
indenture, mortgage, debenture, note or other instrument under
the terms of which performance by Subscriber according to the
terms of this Agreement will be a default or an event of
acceleration, or grounds for termination, or whereby timely
performance by Subscriber according to the terms of this
Agreement may be prohibited, prevented or delayed.
(e) Neither Subscriber, nor any of his Affiliates (as defined
below) has dealt with any person or entity who is or may be
entitled to a broker's commission, finder's fee, investment
banker's fee or similar payment for arranging the transaction
contemplated hereby or introducing the parties to each other. As
used herein, an "Affiliate" is any person or entity which
controls a party to this Agreement or the Company, which that
party or the Company controls, or which is under common control
with that party or the Company. For purposes of the preceding
sentence, the term "control" means the power, direct or indirect,
to direct or cause the direction of the management and policies
of a person or entity through voting securities, contract or
otherwise.
(f) Subscriber is an "accredited investor" within the meaning
of Rule 501(a) of Regulation D under the Securities Act. Subscriber
acknowledges that Subscriber has been given the opportunity to
(a) ask questions and receive satisfactory answers concerning the
terms and conditions of the transactions described herein and (b)
obtain additional information in order to evaluate the merits and
risks of an investment in the Company and to verify the accuracy
of the information provided by the Company.
(g) Subscriber understands that neither the Warrant acquired by
him nor any Shares acquired through the exercise of the Warrant
have not been registered under the Securities Act or any state
securities laws, and are being offered and sold in reliance upon
federal and state exemptions from registration for transactions
not involving any public offering. Subscriber recognizes that
reliance upon such exemptions is based in part upon
Exhibits: Page 3
the representations of Subscriber contained herein. Subscriber
represents and warrants that the Warrant and any Shares acquired
through exercise of the Warrant will be acquired by Subscriber
solely for the account of Subscriber, for investment purposes
only and not with a view to the distribution thereof. Subscriber
represents and warrants that Subscriber (a) is a sophisticated
investor with such knowledge and experience in business and
financial matters as will enable Subscriber to evaluate the
merits and risks of investment in the Company through the
Warrant, (b) is able to bear the economic risk and lack of
liquidity of an investment in the Company through the Warrant and
(c) is able to bear the risk of loss of his entire investment in
the Company through the Warrant.
(h) Subscriber recognizes that (a) an investment in the Company
involves certain risks, and (b) the marketability of the Warrant
and any Shares upon its exercise will be severely limited.
Subscriber agrees that he will not transfer, sell or otherwise
dispose of the Warrant or Shares acquired through exercise of the
Warrant in any manner that will violate the Securities Act or any
state securities laws. Subscriber will not take any action which
would be deemed to require the Company to provide the information
specified in paragraph (b)(2) of Rule 502 to any person in order
to satisfy the requirement for an exemption for the sale of the
Shares by the Company under Rule 505 or Rule 506 of Regulation D.
(i) Subscriber is familiar with Rule 144 promulgated by the
Securities and Exchange Commission under the Securities Act,
which establishes guidelines governing, among other things, the
resale of "restricted securities" (securities such as the Warrant
or any Shares, which are acquired from the issuer of such
securities in a transaction not involving any public offering),
and understand that reliance on Rule 144 to transfer securities
is subject to the restrictions and limitations set forth in such
Rule.
(j) In connection with a transfer of the Warrant or any Shares
acquired through exercise of the Warrant pursuant to an exemption
from registration under the Securities Act, or if available,
under Rule 144 or pursuant to some other exemption, Subscriber
may be required by Grantors and/or the Company to deliver to
Grantors and/or the Company an opinion from counsel for such
buyer, to the effect that all applicable federal and state
securities law requirements have been met.
2.2 Representations and Warranties of Grantors. The Grantors
represent and warrant to Subscriber that:
(a) Wynnchurch is a limited partnership existing and in good
standing under the laws of the State of Delaware, and Wynnchurch
Canada is a partnership existing and in good standing under the
laws of the Province of Alberta, Canada.
(b) No consent, authorization, order or approval of, or filing
or registration with, any governmental commission, board or other
regulatory body of the United States or Canada or any state,
province or political subdivision thereof is required for or in
connection with the consummation by the Grantors of the
transaction contemplated hereby, except for filings required
pursuant to the Securities Act or the Securities and Exchange Act
of 1934, as amended.
Exhibits: Page 4
(c) Each Grantor has full power and authority to execute and
perform this Agreement.
(d) Neither of the Grantors, nor any of their Affiliates have
dealt with any person, firm or corporation who is or may be
entitled to a broker's commission, finder's fee, investment
banker's fee or similar payment for arranging the transaction
contemplated hereby or introducing the parties to each other.
2.3 Limitation on Warranties. Except as expressly set forth in
Section 2.2, the Grantors make no express or implied warranty of
any kind whatsoever, including, without limitation, any
representation as to physical condition or value of any of the
assets of the Company or the future profitability or future
earnings performance of the Company. ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
EXPRESSLY EXCLUDED.
ARTICLE III
Confidentiality
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3.1 Subscriber shall not disclose to any third party (other than
to his agents, attorneys, consultants, accountants and lenders,
having a need to know such information in connection with the
transaction contemplated hereby), or use for any purpose other
than evaluating and carrying out the transaction contemplated
hereby, any Confidential Information regarding the Company.
Intending that the term shall be broadly construed to include
anything protectible under the Illinois Trade Secrets Act or
other applicable law, "Confidential Information" means all
information, and all documents and other tangible items which
record information, which at the time or times concerned is
protectible as a trade secret under applicable law. The
preceding portions of this section shall not apply to information
(a) which was in the public domain or independently received from
a third party with a right to disclose such information,
(b) which was previously known by Subscriber, or (c) to the
extent that disclosure is required by law.
ARTICLE IV
Covenants
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4.1 Good Faith. No party shall intentionally perform any act
which, if performed, or omit to perform any act which, if omitted
to be performed, would prevent or excuse the performance of this
Agreement by any party hereto or which would result in any
representation or warranty herein contained of said party being
untrue in any material respect as if originally made on and as of
the Closing Date.
4.2 Further Assurances. The parties shall execute such further
documents, and perform such further acts, as may be necessary to
comply with the terms of this Agreement and consummate the
transaction contemplated hereby.
Exhibits: Page 5
ARTICLE V
Miscellaneous
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5.1 Publicity. Except as otherwise required by law or
applicable stock exchange rules, press releases concerning this
transaction shall be made only with the prior agreement of
Grantors and Subscriber.
5.2 Notices. All notices required or permitted to be given
hereunder shall be in writing and may be delivered by hand, by
facsimile, by nationally recognized private courier, or by United
States mail. Notices delivered by mail shall be deemed given
three (3) business days after being deposited in the United
States or, if notice is to be provided by Wynnchurch Canada,
Canadian mail, postage prepaid, registered or certified mail.
Notices delivered by hand, by facsimile, or by nationally
recognized private courier shall be deemed given on the first
business day following receipt; provided, however, that a notice
delivered by facsimile shall only be effective if such notice is
also delivered by hand, or deposited in the United States or, if
notice is to be provided by Wynnchurch Canada, Canadian mail,
postage prepaid, registered or certified mail, on or before two
(2) business days after its delivery by facsimile. All notices
shall be addressed as follows:
If to either Grantor:
c/o Wynnchurch Capital Ltd.
Two Xxxxxx Park
00x Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Fax: (000) 000-0000
with a copy to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq. and
Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to Subscriber:
Xxxxxx Xxxxxxxx
0000 Xxxxx Xxxxx Xxx
Xxxx #000
Xxxxx Xxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Exhibits: Page 6
With a copy to:
Xxxxxxx & Xxxxxxxxxx
000 X. XxXxxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
and/or to such other respective address and/or addressees as may
be designated by notice given in accordance with the provisions
of this Section 5.2.
5.3 Consent to Jurisdiction. The parties hereto irrevocably
consent and submit to the exclusive jurisdiction of any local,
state or federal court within the County of Xxxx in the State of
Illinois for enforcement by either party of this Agreement. The
parties irrevocably waive any objection they may have to venue in
the defense of an inconvenient forum to the maintenance of such
actions or proceedings to enforce this Agreement.
5.4 Expenses; Transfer Taxes. Each party hereto shall bear all
fees and expenses incurred by such party in connection with,
relating to or arising out of the negotiation, preparation,
execution, delivery and performance of this Agreement and the
consummation of the transaction contemplated hereby, including,
without limitation, attorneys', accountants' and other
professional fees and expenses. Subscriber shall pay the cost of
all sales, use, excise and transfer taxes which may be payable in
connection with the transaction contemplated hereby.
5.5 Entire Agreement. This Agreement and the instruments to be
delivered by the parties pursuant hereto constitute the entire
agreement between the parties. The parties make no
representations or warranties to each other, except as contained
in this Agreement. Subscriber acknowledges that he has conducted
an independent investigation of the financial condition, assets,
liabilities, properties and projected operations of the Company
in making his determination as to the propriety of the
transaction contemplated by this Agreement, and in entering into
this Agreement has relied solely on the results of said
investigation and on the representations and warranties of
Company expressly contained in this Agreement.
5.6 Non-Waiver. The failure in any one or more instances of a
party to insist upon performance of any of the terms, covenants
or conditions of this Agreement, to exercise any right or
privilege in this Agreement conferred, or the waiver by said
party of any breach of any of the terms, covenants or conditions
of this Agreement, shall not be construed as a subsequent waiver
of any such terms, covenants, conditions, rights or privileges,
but the same shall continue and remain in full force and effect
as if no such forbearance or waiver had occurred. No waiver
shall be effective unless it is in writing and signed by an
authorized representative of the waiving party.
5.7 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original,
and all such counterparts shall constitute but one instrument.
Exhibits: Page 7
5.8 Severability. The invalidity of any provision of this
Agreement or portion of a provision shall not affect the validity
of any other provision of this Agreement or the remaining portion
of the applicable provision.
5.9 Applicable Law. This Agreement shall be governed and
controlled as to validity, enforcement, interpretation,
construction, effect and in all other respects by the internal
laws of the State of Illinois applicable to contracts made in
that State.
5.10 Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, and their
heirs, representatives, successors and permitted assigns.
Nothing in this Agreement, express or implied, is intended to
confer on any person other than the parties hereto, and their
respective heirs, representatives, successors and permitted
assigns any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
5.11 Assignability. This Agreement shall not be assignable by
Subscriber without the prior written consent of each Grantor.
5.12 Amendments. This Agreement shall not be modified or amended
except pursuant to an instrument in writing executed and
delivered on behalf of each of the parties hereto.
5.13 Headings. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
Exhibits: Page 8
IN WITNESS WHEREOF, the parties have executed this
Subscription Agreement on the date first above written.
GRANTORS:
WYNNCHURCH CAPITAL PARTNERS, L.P.
By: Wynnchurch Partners, L.P.,
its general partner
By: Wynnchurch Management Inc.,
its general partner
By:/s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: President
WYNNCHURCH CAPITAL PARTNERS CANADA,
L.P.
By: Wynnchurch Partners Canada, L.P.,
its general partner
By: Wynnchurch GP Canada, its
general partner
By:/s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: President
SUBSCRIBER:
/s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Exhibits: Page 9
EXHIBIT A
Form of Warrant
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Exhibits: Page 10
