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Exhibit 10.27
SIGNATURE BRANDS USA, INC.
STOCK SUBSCRIPTION AGREEMENT
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This Stock Subscription Agreement (the "Agreement") is entered into as
of the 1st day of November, 1997, by and between SIGNATURE BRANDS USA, INC., a
Delaware corporation (the "Company") and Xxxxx Xxxx, an individual residing at
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (the "Purchaser").
WHEREAS, pursuant to Section 3(i) of the Employment Agreement dated as
of August 11, 1997 (the "Employment Agreement"), the Company has granted the
Purchaser an option to purchase shares of the Company's newly issued common
stock, $.01 par value per share (the "Common Stock"), which option may be
partially assigned to the certain members of the Purchaser's immediate family;
and
WHEREAS, the Purchaser desires to exercise such option and purchase
from the Company and the Company wishes to issue and sell to the Purchaser
shares of Common Stock, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the parties to this Agreement, intending to be legally bound,
mutually agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
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1.1 SALE AND ISSUANCE OF SHARES. Subject to the terms and conditions
of this Agreement, the Purchaser hereby subscribes for and agrees to purchase at
the Closing (as herein defined), and the Company does hereby agree to sell to
the Purchaser at the Closing, 91,727 shares of Common Stock (the "Shares"), at a
purchase price of $1.75 per share of Common Stock, for aggregate consideration
of $160,522.25. The Purchaser hereby acknowledges that the number of Shares set
forth above constitutes the full, entire and correct number of Shares to be
purchased by her pursuant to this Agreement for the amount of consideration set
forth above.
1.2 DELIVERY OF PURCHASE PRICE. In consideration of and in exchange
for the Shares to be purchased hereunder, the Purchaser shall deliver to the
Company, on the Closing Date (as hereinafter defined), the aggregate purchase
price set forth above (the "Purchase Price"), payable by cashier's check or wire
transfer of immediately available funds.
1.3 CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") shall occur on November 1, 1997 at the offices of the Company, or at
such other time and place as the Company and the Purchaser may agree (the
"Closing Date"). In consideration of the purchase by the Purchaser of the Shares
and the payment of the Purchase Price therefor, the Company shall
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deliver to the Purchaser at the Closing a certificate evidencing the number of
Shares purchased by the Purchaser.
ARTICLE II
Representations and Warranties of the Company
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The Company represents and warrants to the Purchaser that:
2.1 ORGANIZATION AND STANDING. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to carry on its
business as now conducted and as proposed to be conducted.
2.2 CAPITALIZATION. The authorized capital of the Company consists of
20,000,000 shares of Common Stock, par value $.01 per share.
2.3 AUTHORIZATION. All corporate action on the part of the Company
necessary for the authorization, execution, delivery and performance of this
Agreement by the Company and for the authorization, issuance and delivery of the
Shares being sold under this Agreement, has been taken. This Agreement, when
executed and delivered by all parties hereto, shall constitute the valid and
legally binding obligation of the Company and shall be enforceable against the
Company in accordance with its terms, except to the extent enforceability may be
limited by bankruptcy laws, insolvency laws, reorganization laws, moratorium
laws or other laws affecting creditors' rights generally and except to the
extent enforceability may be limited by general equitable principles.
2.4 VALIDITY OF SHARES. The Shares, when issued, sold and delivered in
accordance with the terms of this Agreement, shall be duly and validly issued,
fully paid and nonassessable.
2.5 SECURITIES ACT. The sale of Shares in accordance with the terms of
this Agreement (assuming the accuracy of the representations and warranties of
the Purchaser contained in Article III hereof) is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "1933 Act").
ARTICLE III
Representations, Warranties and Agreements of the Purchaser
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The Purchaser represents and warrants to the Company that:
3.1 AUTHORIZATION; ENFORCEABILITY. The Purchaser has full legal right,
power and authority to execute, deliver and perform this Agreement and the
transactions contemplated hereby. This Agreement, when executed and delivered by
all parties hereto, will constitute the valid and legally binding obligation of
the Purchaser, enforceable against her in accordance with its terms, except to
the extent enforceability may be limited by bankruptcy laws, insolvency laws,
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reorganization laws, moratorium laws or other laws affecting creditors' rights
generally and except to the extent enforceability may be limited by general
equitable principles.
3.2 COMPLIANCE. The execution and delivery of this Agreement by the
Purchaser does not, and the consummation by the Purchaser of the transactions
contemplated hereby and the performance by the Purchaser of the obligations
which she is obligated to perform hereunder will not, (a) violate in any
material respect any material law, regulation, rule, order, judgment or decree
to which the Purchaser is subject or (b) violate in any material respect, result
in the termination or the acceleration of, or conflict with in any material
respect or constitute a material default under, any material mortgage,
indenture, lease, franchise, license, permit, agreement or instrument (each, a
"Contract") to which the Purchaser is a party or by which any of the Purchaser's
assets or properties are bound.
3.3 INVESTMENT REPRESENTATIONS.
(a) This Agreement is made in reliance upon the Purchaser's
representations to the Company, which by acceptance hereof the
Purchaser hereby confirms, that: (i) the shares will be acquired by the
Purchaser for investment only, for her own account and not as a nominee
or agent and not with a view to the sale or distribution of any part
thereof in violation of applicable federal and state securities laws;
and (ii) the Purchaser has no current intention of selling, granting
participation in or otherwise distributing the Shares in violation of
applicable federal and state securities laws. By executing this
Agreement, the Purchaser further represents that she does not have any
contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to such person, or to any third
person, with respect to any of the Shares in violation of applicable
Federal and state securities laws.
(b) The Purchaser understands that the Shares have not been
registered under the 1933 Act on the basis that the sale provided for
in this Agreement and the issuance of securities hereunder are exempt
from registration under the 1933 Act pursuant to Section 4(2) thereof
and regulations issued thereunder, and that the Company's reliance on
such exemption is predicated on the representations and warranties of
the Purchaser set forth herein.
(c) The Purchaser represents that she has, either alone or
together with the assistance of a "purchaser representative" (as that
term is defined in Regulation D promulgated under the 1933 Act), such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of her investment in the
Company. The Purchaser further represents that she is familiar with the
business and financial condition, properties, operations and prospects
of the Company and that she has had access, during the course of the
transactions contemplated hereby and prior to her purchase of Shares,
to the same kind of information that is specified in Part I of a
registration statement under the 1933 Act, and that she has had the
opportunity to ask questions of, and receive answers from, the Company
concerning the terms and conditions of the investment and to obtain
additional information (to the extent the
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Company possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify the accuracy of any
information furnished to the Purchaser or to which the Purchaser has
had access. The Purchaser has made, either alone or together with her
advisors, such independent investigation of the Company as the
Purchaser deems to be, or her advisors deem to be, necessary or
advisable in connection with this investment. The Purchaser understands
that no federal or state agency has passed upon this investment or upon
the Company, nor has any such agency made any finding or determination
as to the fairness of this investment.
(d) The Purchaser represents that she will not sell, transfer
or otherwise dispose of the Shares without registration under the 1933
Act and applicable state securities laws, or an exemption therefrom.
The Purchaser understands that, in the absence of an effective
registration statement covering the Shares or an available exemption
from registration under the 1933 Act and applicable state securities
laws, the Shares must be held indefinitely. In particular, the
Purchaser acknowledges that she is aware that the Shares may not be
sold pursuant to Rule 144 promulgated under the 1933 Act unless all of
the conditions of such rule are met. The Purchaser represents that, in
the absence of an effective registration statement covering the Shares,
she will sell, transfer or otherwise dispose of the Shares only in a
manner consistent with her representations and the Purchaser's other
agreements set forth herein.
(e) The Purchaser represents that she (i) is capable of
bearing the economic risk of holding the unregistered Shares for an
indefinite period of time and has adequate means for providing for her
current needs and contingencies, (ii) can afford to suffer a complete
loss of this investment and (iii) understands all risk factors related
to the purchase of the Shares.
(f) The Purchaser represents that neither she nor anyone
acting on her behalf has paid any commission or other remuneration to
any person in connection with the purchase of the Shares.
(g) The Purchaser agrees that she will not transfer, dispose
of or pledge any of the Shares other than pursuant to an effective
registration statement under the 1933 Act and applicable state
securities laws, unless and until (i) the Purchaser shall have notified
the Company of the proposed transfer, disposition or pledge and shall
have furnished the Company with a statement of the circumstances
surrounding the proposed transfer, disposition or pledge and (ii) if
requested by the Company and at the expense of the Purchaser or her
transferee, the Purchaser shall have furnished to the Company an
opinion of counsel reasonably satisfactory (as to counsel and as to
substance) to the Company and its counsel that such proposed transfer,
disposition or pledge may be made without registration of such Shares
under the 1933 Act and applicable state securities laws.
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3.4 LEGENDS; STOP TRANSFER.
(a) The Purchaser acknowledges that all certificates evidencing
the Shares shall bear the following legend:
"TRANSFER RESTRICTED
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The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be sold, offered for sale, pledged or hypothecated in
the absence of an effective registration statement as to the
securities under said Act, or an opinion of counsel
satisfactory to the Company and its counsel that such
registration is not required."
(b) The certificates evidencing the Shares shall also bear any
legend required by any applicable state securities law.
(c) In addition, the Company shall make a notation regarding
the restrictions on transfer of the Shares in its stock books, and the
Shares shall be transferred on the books of the Company only if
transferred or sold pursuant to an effective registration statement
under the 1933 Act and applicable state securities laws covering such
Shares or pursuant to and in compliance with the provisions of this
Agreement. All Common Stock of the Company hereafter issued to the
Purchaser shall bear the same endorsement, shall be subject to all the
terms and conditions of this Agreement, and for all purposes shall be
deemed shares of "Common Stock" hereunder. A copy of this Agreement,
together with any amendment thereto, shall remain on file with the
Secretary of the Company and shall be available for inspection to any
properly interested person without charge within five (5) days after
the Company's receipt of a written request therefor.
ARTICLE IV
Covenants of the Purchaser
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4.1 TRANSFER RESTRICTED. In addition to the restrictions on transfer
of the Shares set forth above, until September 30, 1999, the Purchaser may not
transfer, sell, assign, pledge, hypothecate, give, create a security interest in
or lien on, place in trust (voting or otherwise), assign or in any other way
encumber or dispose of, directly or indirectly and whether or not by operation
of law or for value (a "Transfer"), any Shares. The foregoing restriction shall
not apply in connection with any transaction or series of transactions which
constitute a Change of Control (as that term is defined in the Employment
Agreement). If a Change of Control shall occur prior to the first anniversary
date of this Agreement, the Company agrees to use its best efforts to effect a
registration of the Shares so that the Purchaser may sell the Shares in the
public market following the Change of Control; it being understood that
following the first anniversary date hereof, the Shares shall be eligible for
sale pursuant to the provisions of Rule 144 under the 1933 Act.
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ARTICLE V
Miscellaneous
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5.1 NO WAIVER; MODIFICATIONS IN WRITING. No failure or delay on the
part of the Company or the Purchaser in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Company or the Purchaser at law or in
equity or otherwise. No waiver of or consent to any departure by the Company
from any provision of this Agreement shall be effective unless signed in writing
by the party entitled to the benefit thereof, provided that notice of any such
waiver shall be given to each party hereto as set forth below. Except as
otherwise provided herein, no amendment, modification or termination of any
provision of this Agreement shall be effective unless signed in writing by or on
behalf of the Company and the Purchaser. Any amendment, supplement or
modification of or to any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any departure by the Company
from the terms of any provision of this Agreement, shall be effective only in
the specific instance and for the specific purpose for which made or given.
5.2 NOTICES. All notices and other communications necessary or
contemplated under this Agreement shall be in writing and shall be delivered in
the manner specified herein. All notices shall be deemed to have been duly given
upon confirmation by telecopy if delivered by telecopy or by hand, or one day
after sending by overnight delivery service, or five days after sending by
certified mail, postage prepaid, return receipt requested to the respective
addresses of the parties set forth below:
(a) for notices and communications to the Company:
Signature Brands USA, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Chairman of the Board
with a copy to:
Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
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and a copy to:
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. XxXxx, Esq.
(b) for notices and communications to the Purchaser:
Xx. Xxxxx Xxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
By notice complying with the foregoing provisions of this Section 5.2, each
party shall have the right to change the notice address for future notices and
communications to such party.
5.3 COSTS, EXPENSES AND TAXES. The Company shall pay any and all
stamp, transfer and other similar taxes payable or determined to be payable in
connection with the execution and delivery of this Agreement or the original
issuance of the Shares but excluding all federal, state and local income or
similar taxes and shall save and hold the Purchaser harmless from and against
any and all liabilities with respect to or resulting from any delay in paying,
or omission to pay, such taxes.
5.4 EXECUTION OF COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which, taken together, shall constitute but one and the same
Agreement.
5.5 BINDING EFFECT; ASSIGNMENT. The rights and obligations of the
Purchaser under this Agreement may not be assigned to any other person. Except
as expressly provided in this Agreement, this Agreement shall not be construed
so as to confer any right or benefit upon any person other than the parties to
this Agreement, and their respective successors and assigns. This Agreement
shall be binding upon the Company and the Purchaser, and their respective
successors and assigns.
5.6 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Ohio (regardless of the laws that might otherwise govern under
applicable Ohio principles of conflicts of law) as to all matters, including but
not limited to matters of validity, construction, effect, performance and
remedies.
5.7 SEVERABILITY OF PROVISIONS. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of
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such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
5.8 INJUNCTIVE RELIEF. Each of the parties to this Agreement hereby
acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that, in the event of a
breach of any material provision of this Agreement, the aggrieved party may
elect to institute and prosecute proceedings to enforce specific performance or
to enjoin the continuing breach of such provision, as well as to obtain damages
for breach of this Agreement. By seeking or obtaining any such relief, the
aggrieved party will not be precluded from seeking or obtaining any other relief
to which it may be entitled.
5.9 SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND WARRANTIES. All
agreements, representations and warranties contained herein or made in writing
by or on behalf of the Company or the Purchaser, as the case may be, in
connection with the transactions contemplated by this Agreement shall survive
the execution and delivery of this Agreement and the sale and purchase of the
Shares of payment therefor.
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SIGNATURE BRANDS, INC.
STOCK SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement
as an instrument under SEAL as of the date first above written.
SIGNATURE BRANDS USA, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board
/s/ Xxxxx Xxxx
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Xxxxx Xxxx, individually
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