SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "AGREEMENT") dated as of December 8, 1998,
by and among XxXxxxx Holdings Co., a Delaware corporation (the "COMPANY") and
[ ] (the "INVESTOR").
WHEREAS, the Investor desires to subscribe for, and the Company desires
to issue to the Investor, the number of shares of common stock, par value
$0.01 per share (the "COMMON STOCK"), and the number of shares of preferred
stock, par value $0.01 per share (the "PREFFERED STOCK"), of the Company set
forth on Exhibit A hereto (such shares of Common Stock and Preferred Stock to
be subscribed for by the Investor and issued to the Investor by the Company,
the "SHARES").
NOW, THEREFORE, IT IS AGREED:
ARTICLE I
ISSUANCE OF SHARES; CONSIDERATION
Section 1.01. ISSUANCE OF SHARES. Upon the terms set forth in this
Agreement, the Company hereby agrees to issue to the Investor, and the
Investor hereby subscribes for, the Shares.
Section 1.02. SUBSCRIPTION. In consideration for the issuance by the
Company of the Shares, the Investor shall:
(a) pay to the Company, by wire transfer of immediately
available funds to an account specified by the Company, an amount equal
to 50% of the aggregate subscription price set forth on Exhibit A
hereto; and
(b) execute and deliver to the Company a Promissory Note and
Pledge Agreement (the "PROMISSORY NOTE AND PLEDGE") in the form of
Exhibit C hereto in a principal amount equal to 50% of the aggregate
subscription price set forth on Exhibit A hereto.
Section 1.03. INVESTORS' AGREEMENT. As a condition to the issuance of
the Shares, the Investor shall execute and deliver to the Company an
agreement in the form of Exhibit B hereto, pursuant to which the Investor
agrees to be bound by the terms of the Amended and Restated Investors'
Agreement, dated as of October 2, 1998, by and among the Company and the
stockholders of the Company named therein (the "DLJ ENTITIES").
ARTICLE II
REPRESENTATIONS OF THE COMPANY
Section 2.01. CORPORATE EXISTENCE AND POWER. The Company is a
corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware. The company has all corporate power to own
its properties and to carry on its business as now conducted.
Section 2.02. AUTHORITY AND APPROVAL. The execution and delivery of this
Agreement are within the corporate powers of the Company and have been duly
authorized by all necessary corporate action on the part of the Company. This
Agreement constitutes a legal, valued and binding agreement of the Company,
enforceable against it in accordance with its terms, except to the extent that
its enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
Section 2.03. SHARES. When issued to the Investor in accordance with the
terms hereof, the Shares will be duly authorized, validly issued, fully paid
and non-assessable.
Section 2.04. CAPITALIZATION. As of November 9, 1998, the authorized
capital stock of the Company consisted of (i) 3,500,00 shares of Common Stock,
of which 2,826,087 shares were issued and outstanding as of such date, and
(ii) 2,500,000 shares of Preferred Stock, of which 340,000 shares were issued
and outstanding as of such date. Except for (i) the Preferred Stock, and (ii)
warrants to purchase an aggregate of 155,000 shares of Common Stock issued to
the DLJ Entities on October 2, 1998 and warrants to purchase an aggregate of
155,000 shares of Common Stock issued in connection with the Company's 12%
Senior Subordinated Notes due 2008 on October 5, 1998, as of November 9, 1998
there were no outstanding securities convertible into or exchangeable for the
capital stock of the Company and no outstanding options, rights or warrants
to purchase or subscribe for any shares of the capital stock of the Company.
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ARTICLE III
REPRESENTATIONS OF THE INVESTOR
Section 3.01. AUTHORIZATION. The Investor has full power and authority
to enter into this Agreement and the Promissory Note and Pledge and to
perform his obligations hereunder and thereunder.
Section 3.02. ENFORCEABILITY. Each of this Agreement and the Promissory
Note and Pledge has been duly executed and delivered by the Investor and
constitutes a legal, valid and binding obligation of the Investor,
enforceable against the Investor in accordance with its terms, except to the
extent that its enforceability may be subject to applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
Section 3.03. PRIVATE PLACEMENT. (a) The Investor understands that the
offering and sale of the Shares to the Investor as contemplated hereby is
intended to be exempt from registration under the Securities Act of 1933, as
amended (the "1933 ACT") pursuant to Regulation D and Section 4(2) thereunder.
(b) The Shares to be acquired by the Investor pursuant to this
Agreement are being acquired for his own account for investment and
without a view to the public distribution of the shares or any interest
therein. The Investor understands that the Shares may not be transferred
or sold unless registered under the 1933 Act or an exemption from such
registration becomes available.
(c) The Investor has sufficient knowledge and experience in
financial and business matters so as to be capable of evaluating the
merits and risks of his investment in the Shares and the Investor is
capable of bearing the economic risks of such investment, including a
complete loss of his investment in the Shares.
(d) The Investor has been given the opportunity to ask questions
of and receive answers from the Company concerning the Company, the
Shares and other related matters. The Investor further represents and
warrants to the Company that he has been furnished with all information
he deems necessary or desirable to evaluate the merits and risks of the
acquisition of the Shares and that the Company has made available to the
Investor or his agents all documents and information relating to an
investment in the Shares requested by or on behalf of the Investor. In
evaluating the suitability of an investment in the Shares, the Investor
has not relied upon any other representations or other information
(other than
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as contemplated by the preceding sentences) whether oral or written made
by or on behalf of the Company.
(e) The Investor is an "Accredited Investor" as such term is
defined in Regulation D under the 1933 Act.
ARTICLE IV
MISCELLANEOUS
Section 4.01. NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission to
the recipient's then current facsimile number) and shall be given,
if to the Investor, to:
[ ]
c/o Global Technology Partners, LLC
0000 X Xxxxxx, X.X.
Xxxxx 000 Xxxx
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
if to the Company, to:
XxXxxxx Holdings Co.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xx Xxxxxxx, Xx 00000
Attn: R. Xxxx XxXxxxx
Fax: (000) 000-0000
Section 4.02. AMENDMENTS AND WAIVERS. Any provision of this Agreement
may be amended modified, supplemented or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment,
by each party to this Agreement, or in the case of a waiver, by the party
against whom the waiver is to be effective.
Section 4.03. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns; PROVIDED that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto.
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Section 4.05. COUNTERPARTS; THIRD PARTY BENEFICIARIES. This Agreement
may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each
party hereto shall have received a counterpart hereof signed by the other
party hereto. No provision of this Agreement is intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
Section 4.06. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
AGreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
Section 4.04. CAPTIONS. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
Section 4.08. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with laws of the State of New York.
IN WITNESS WHEREOF, the Investor has executed this Agreement and the
Company has caused its corporate name to be hereunto subscribed by its
officers thereunto duly authorized, all as of the day and year first above
written.
XXXXXXX HOLDINGS. CO.
By:
--------------------------------
Name:
Title:
INVESTOR
By:
-------------------------------
Name:
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