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Exhibit P(2)
SUBSCRIPTION AGREEMENT
relating to shares of Class B Junior Stock
of Readington Holdings, Inc.
between
READINGTON HOLDINGS, INC.
as Issuer
and
THE PURCHASERS NAMED HEREIN
as Purchasers
Dated as of August 11, 2000
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THIS STOCK SUBSCRIPTION AGREEMENT (the "Agreement"), dated as of
August 11, 2000, is being executed by READINGTON HOLDINGS, INC. (the "Issuer"),
a corporation organized under the laws of the State of New Jersey, 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
Purchaser desires to purchase from the Issuer, one share of Class B Junior Stock
(collectively, the "Shares") 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 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.
"Agreement" shall have the meaning specified in the
introduction hereto.
"Closing" means the purchase and sale of the Shares in accordance
with the terms and conditions of this 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 Agreement.
"Class B Junior Stock" means the Class B Junior Stock, par value
$1,000 per share, of the Issuer with the designations, rights and preferences
set forth in the Amended and Restated Certificate of Incorporation of the
Issuer.
"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
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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.
"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.
"Shares" has the meaning specified in the Preamble.
"Stock Subscription Agreement" means this Stock Subscription
Agreement, as amended or supplemented from time to time.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. PURCHASE AND SALE OF THE SHARES. Upon the terms and
subject to the conditions contained in this Agreement, at the Closing, the
Issuer agrees to sell to each Purchaser, and each Purchaser, severally and not
jointly, agrees to purchase from the Issuer, one Share.
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SECTION 2.02. PURCHASE PRICE. The purchase price of each Share (the
"Purchase Price") shall be $1,000 per Share, payable in accordance with the
terms and conditions of this 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 Agreement, the sale and purchase of the Shares contemplated by this
Agreement shall take place at the Closing, to be held at the offices of Xxxxxxxx
& Xxxxxxxx at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:01 A.M. New York time,
on August 11, 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 on the Issuer's transfer books the name of each Purchaser as the
registered owner of one Share, and (ii) each Purchaser shall deliver to the
Issuer, by check, the amount of $1,000, being the Purchase Price for such Share.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
As an inducement to the Purchasers to enter into this Agreement, the
Issuer hereby represents and warrants to the Purchaser as follows:
SECTION 3.01. ORGANIZATION AND AUTHORITY OF THE ISSUER. The Issuer
is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of New Jersey and has full corporate power and authority
to enter into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby.
The execution and delivery of this 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 corporate action on the part of the Issuer. This 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 SHARES. The Shares have been duly and
validly authorized and, when issued and delivered against payment therefor 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 Agreement by the Issuer do not and will not (a) violate, conflict with
or result in the breach of any provision of the Amended and Restated Certificate
of Incorporation or By-laws of the Issuer, (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
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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 Agreement.
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 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 Shares, or solicited offers to buy the Shares, under circumstances
that would require the registration of the Shares 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 Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
As an inducement to the Issuer to enter into this Agreement, each
Purchaser hereby represents and warrants to the Issuer as follows:
SECTION 4.01. ORGANIZATION AND AUTHORITY OF THE Purchasers. This
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
Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby.
The execution and delivery of this 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 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
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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 Agreement.
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 Agreement or the consummation of the transactions contemplated
hereby.
SECTION 4.04. INVESTMENT PURPOSE. Such Purchaser is acquiring the
Shares 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 Shares 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 Shares. Such Purchaser acknowledges that it understands that
the stock certificates evidencing the Shares shall, until such time that the
Shares are registered under the Securities Act, bear a legend stating that (i)
the Shares have not been registered under the Securities Act, (ii) were issued
in reliance upon the Purchaser's representation that the Shares 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 Shares 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 Agreement and no
transfer of the Shares will be made on the books of the Issuer unless
accompanied by evidence of compliance with the terms of this 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 Shares, and
is able to bear the economic risk of such investment for an indefinite period of
time.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. FURTHER ACTION. Subject to the terms and conditions of
this 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
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execute and deliver such documents and other papers, as may be required to carry
out the provisions of this Agreement and consummate and make effective the
transactions contemplated by this 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 Shares, including the value of the
Shares, 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 Shares 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 own inquiry and investigation concerning the Issuer
and has, based on such information, formed an independent judgment concerning
the Issuer and the Shares, including the value of the Shares.
SECTION 5.03. LEGAL, TAX AND REGULATORY TREATMENT. Each Purchaser
represents and warrants to the Issuer that, in connection with the purchase of
the Shares, and with respect to any information or communication received
regarding the value of the Shares, 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 Shares) 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 Shares, 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
Agreement as to each Purchaser shall be subject to the conditions that (i) the
representations and warranties of such Purchaser contained in this 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
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 PURCHASER. The
obligations of the Purchasers to consummate the transactions contemplated by
this Agreement shall be subject to the conditions that (i) the representations
and warranties of the Issuer contained in this 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 Agreement to be
complied with by the Issuer at or prior to the Closing shall have been complied
with in all material respects.
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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 Agreement made or to be performed by the
indemnifying party.
SECTION 7.02. EXPENSES. Except as otherwise specified in this
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 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:
Readington Holdings, Inc.
X.X. Xxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxx
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(b) if to any Purchaser, to such Purchaser, c/o
Merck Holdings, Inc.
One Xxxxxx Square
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx
and
Xxxxxxx Xxxxx Capital Services, Inc.
World Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx
SECTION 7.04. HEADINGS. The descriptive headings
contained in this Agreement are for convenience of reference only and
shall not affect in any way the meaning or interpretation of this
Agreement.
SECTION 7.05. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by reason of any
Law or public policy, all other terms and provisions of this 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 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.
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 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 Agreement.
SECTION 7.07. GOVERNING LAW. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
New York.
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SECTION 7.08. COUNTERPARTS. This 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 Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
READINGTON HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Secretary
[PURCHASERS]
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