SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is made as of July 20,
2001, by and between Specialty Acquisition Corp., a Delaware corporation
("Acquisition Corp."), and the Person named on the signature page hereto (the
"Stockholder").
WHEREAS, the Stockholder is a stockholder of Specialty Catalog Corp., a
Delaware corporation (the "Company"), and one of several Persons who are or will
be investors of Specialty Acquisition Corp.;
WHEREAS, the Company has entered into an Agreement and Plan of
Recapitalization and Merger with Acquisition Corp., dated as of May 4, 2001, as
amended from time to time in accordance with its terms (the "Merger Agreement"),
pursuant to which Acquisition Corp. shall be merged with and into the Company
(the "Acquisition"), in accordance with the terms and conditions of the Merger
Agreement and the relevant provisions of the DGCL (as defined in the Merger
Agreement), and the surviving corporation shall be the Company;
WHEREAS, prior to the consummation of the transactions contemplated by
this Agreement and the Merger Agreement, the Stockholder is the record and
beneficial owner of the number of shares of the Company's common stock, par
value $0.01 per share (the "Shares"), set forth opposite its name on the
Schedule I attached hereto;
WHEREAS, on the terms and subject to the conditions hereof the
Stockholders also desire to contribute some or all of their Shares in exchange
for shares of common stock of Acquisition Corp. (the "Acquisition Corp.
Shares"), in the amounts set forth on Schedule I attached hereto.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Definitions.
1.1 Acquisition. The term "Acquisition" shall have the meaning set
forth in the preface.
1.2 Agreement. The term "Agreement" shall have the meaning set
forth in the preface.
1.3 Closing. The "Closing" for the contribution of Shares in
exchange for Acquisition Corp. Shares hereunder shall occur
immediately prior to or in connection with the consummation of
the Acquisition.
1.4 Closing Date. The term "Closing Date" shall mean the date on
which the Closing occurs.
1.5 Company. The term "Company" shall have the meaning set forth
in the preface.
1.6 Contributed Shares. The term Contributed Shares shall have the
meaning set forth in Section 2.1.
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1.7 Merger Agreement. The term "Merger Agreement" shall have the
meaning set forth in the preface.
1.8 Permitted Transferee. The term "Permitted Transferee" shall
have the meaning set forth in the Stockholders Agreement (as
hereinafter defined).
1.9 Person. The term "Person" shall mean any individual,
corporation, partnership, limited liability company, trust,
joint stock company, business trust, unincorporated
association, joint venture, governmental authority or other
entity of any nature whatsoever.
1.10 Securities Act. The term "Securities Act" shall mean the
Securities Act of 1933, as amended, and all rules and
regulations promulgated thereunder, as the same may be amended
from time to time.
1.11 Shares. The term "Shares" shall have the meaning set forth in
the preface.
1.12 Stockholder. The term "Stockholder" shall have the meaning set
forth in the preface.
1.13 Stockholders Agreement. The term "Stockholders Agreement"
shall mean the Stockholders Agreement dated as of May 4, 2001
among Acquisition Corp. and its stockholders, as it may be
amended or supplemented thereafter from time to time.
1.14 Subscription Agreements. The term "Subscription Agreements"
shall have the meaning set forth in the Stockholders
Agreement.
1.15 Transaction Documents. The term "Transaction Documents" means,
collectively, (i) each of the Subscription Agreements executed
on or about the date hereof by the stockholders of the
Company, (ii) the Stockholders Agreement, and (iii) each of
the other agreements, documents and instruments executed in
connection with the Merger Agreement and the transactions
contemplated thereby.
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2. Acquisition of Acquisition Corp. Shares.
2.1 Contribution of Shares. Pursuant to the terms and subject to the
conditions set forth in this Agreement, at the Closing, the Stockholder hereby
agrees to contribute to Acquisition Corp. the number of Shares indicated
opposite the Stockholder's name on Schedule I attached hereto (the "Contributed
Shares"), and Acquisition Corp. hereby agrees to receive such contribution in
exchange for the number of Acquisition Corp. Shares indicated opposite the
Stockholder's name on Schedule I.
2.2 Closing Events. At the Closing, the Stockholder shall deliver to
Acquisition Corp. the number of Contributed Shares indicated opposite the
Stockholder's name on Schedule I; provided that contribution to Acquisition
Corp. of the Contributed Shares shall be evidenced by the delivery by the
Stockholder to Acquisition Corp. of stock certificates representing such
Contributed Shares duly endorsed for transfer or accompanied by duly executed
stock powers or forms of assignment.
3. Representations and Warranties.
3.1 Stock Purchase Representations of the Stockholder. The Stockholder
represents and warrants to Acquisition Corp. that the statements contained in
this Section 3.1 are correct and complete as of the date of this Agreement, with
respect to itself:
(a) Power and Authority. The Stockholder has full power and authority
to execute and deliver this Agreement and perform its obligations
hereunder. This Agreement constitutes the valid and legally binding
obligation of the Stockholder, enforceable in accordance with its terms and
conditions. The Stockholder does not need to give any notice to, make any
filing with, or obtain any authorization, consent or approval of any
government or governmental agency in order to consummate the transactions
contemplated by this Agreement.
(b) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
will violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Stockholder is
subject or conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to
which the Stockholder is a party or by which it is bound or to which any of
its assets is subject.
(c) Capital Stock. The Stockholder holds of record and owns
beneficially the number of Shares set forth next to its name on Schedule I,
free and clear of any restrictions on transfer (other than any restrictions
under the Securities Act and state securities laws), taxes, security
interests, options, warrants, purchase rights, contracts, commitments,
equities, claims, and demands. No Stockholder is a party to any option,
warrant, purchase right, or other contract or commitment that could require
any such Stockholder to sell, transfer, or otherwise dispose of any capital
stock of the Company (other than this Agreement).
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3.2 Acquisition Corp. Shares Unregistered. The Stockholder acknowledges and
represents that the Stockholder has been advised by Acquisition Corp. that:
(a) the offer and sale of the Acquisition Corp. Shares have not been
registered under the Securities Act;
(b) the Stockholder must continue to bear the economic risk of the
investment in the Acquisition Corp. Shares unless the offer and sale of
such Acquisition Corp. Shares complies with the provisions and restrictions
contained in the Stockholders Agreement and are subsequently registered
under the Securities Act and all applicable state securities laws or an
exemption from such registration is available;
(c) there is no established market for the Acquisition Corp. Shares
and it is not anticipated that there will be any public market for the
Acquisition Corp. Shares in the foreseeable future;
(d) a restrictive legend in the form set forth below and the legends
set forth in the Stockholders Agreement shall, upon the request of
Acquisition Corp., be placed on the certificates representing the
Acquisition Corp. Shares:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS AND OTHER PROVISIONS SET FORTH IN A SUBSCRIPTION
AGREEMENT BETWEEN ACQUISTION CORP. AND __________ DATED AS OF
____________ __, 2001, AS AMENDED AND MODIFIED FROM TIME TO TIME, A
COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE PRINCIPAL
PLACE OF BUSINESS OF SC ACQUISITION CORP. WITHOUT CHARGE"; and
(e) a notation shall be made in the appropriate records of Acquisition
Corp. indicating that the Acquisition Corp. Shares are subject to
restrictions on transfer and, if Acquisition Corp. should at some time in
the future engage the services of a securities transfer agent, appropriate
stop-transfer instructions will be issued to such transfer agent with
respect to the Acquisition Corp. Shares.
(f) the transfer of Acquisition Corp. Shares shall be restricted
pursuant to the provisions of the Stockholders Agreement.
3.3 Additional Investment Representations. The Stockholder represents and
warrants that:
(a) such Stockholder's financial situation is such that such
Stockholder can afford to bear the economic risk of holding the Acquisition
Corp. Shares for an indefinite period of time, has adequate means for
providing for such Stockholder's current needs and personal contingencies,
and can afford to suffer a complete loss of such Stockholder's investment
in the Acquisition Corp. Shares;
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(b) such Stockholder's knowledge and experience in financial and
business matters is such that such Stockholder is capable of evaluating the
merits and risks of the investment in the Acquisition Corp. Shares;
(c) such Stockholder understands that the Acquisition Corp. Shares
involve a high degree of risk of loss of such Stockholder's investment
therein, there are substantial restrictions on the transferability of the
Acquisition Corp. Shares and, following the Closing Date, there will be no
public market for the Acquisition Corp. Shares and, accordingly, it may not
be possible for such Stockholder to liquidate its investment in case of
emergency, if at all;
(d) such Stockholder understands and has taken cognizance of all the
risk factors related to the purchase of the Acquisition Corp. Shares and,
other than as set forth in this Agreement, no representations or warranties
have been made to such Stockholder or its representatives concerning the
Acquisition Corp. Shares or Acquisition Corp. or their prospects or other
matters;
(e) the Stockholder has been given the opportunity to ask questions
of, and to receive answers from, Acquisition Corp. and its representatives
concerning Acquisition Corp. and its subsidiaries, the Acquisition, the
Stockholders Agreement, Acquisition Corp. organizational documents and the
terms and conditions of the purchase of the Acquisition Corp. Shares and to
obtain any additional information which the such Stockholder deems
necessary;
(f) all information which such Stockholder has provided to Acquisition
Corp. and Acquisition Corp.'s representatives concerning such Stockholder
and such Stockholder's financial position is complete and correct as of the
date of this Agreement; and
(g) such Stockholder is an "accredited investor" within the meaning of
Rule 501(a) under the Securities Act.
3.4 Representations of Acquisition Corp. Acquisition Corp. represents to
the Stockholders that the statements contained in this Section 3.4 are
correct and complete as of the date of this Agreement:
(a) Organization and Power. Acquisition Corp. is a corporation validly
existing and in good standing under the laws of the State of Delaware, with
full power and authority to enter into this Agreement and perform its
obligations hereunder.
(b) Authorization. The execution, delivery and performance of this
Agreement by Acquisition Corp. and the consummation of the transactions
contemplated hereby by Acquisition Corp. have been duly and validly
authorized by all requisite corporate action on the part of Acquisition
Corp., and no other proceedings on its part are necessary to authorize the
execution, delivery or performance of this Agreement. This Agreement has
been duly executed and delivered by Acquisition Corp., and this Agreement
constitutes a valid and binding obligation of Acquisition Corp.,
enforceable in accordance with its terms and conditions. Acquisition Corp.
need not give any notice to, make any filing with, or obtain any
authorization, consent or approval of any government or governmental agency
in order to consummate the transactions contemplated by this Agreement.
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(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
will violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Acquisition Corp. is
subject or any provision of its charter or bylaws or conflict with, result
in a breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Acquisition Corp. is a party or
by which it is bound or to which any of its assets is subject.
(d) Investment. Acquisition Corp. is not acquiring the Shares with a
view to or for sale in connection with any distribution thereof within the
meaning of the Securities Act.
4. Restrictions; Voting Agreement and Stockholders Agreement.
4.1 Restrictions. The Stockholder agrees that it shall not, except as
contemplated by the terms of this Agreement or the Stockholders Agreement, (i)
sell, transfer (with or without consideration), pledge or otherwise encumber,
assign or otherwise dispose of, or enter into any contract, agreement, option or
other arrangement or understanding with respect to the sale, transfer (with or
without consideration), pledge, assignment or other disposition of, the
Contributed Shares to any person other than to a Permitted Transferee, (ii)
enter into any voting arrangement, voting agreement, voting trust,
power-of-attorney or otherwise, with respect to the Contributed Shares, except
as contemplated by the Merger Agreement, the Stockholder Agreement and this
Agreement, (iii) take any other action that would in any way restrict, limit,
hinder or interfere with the performance by the Stockholder of the obligations
hereunder or the transactions contemplated hereby, or in any way restrict,
limit, hinder or interfere with consummation of the transactions contemplated by
the Merger Agreement (including the Merger).
4.2 Voting Agreement. The Stockholder hereby agrees to vote all Shares
that such Stockholder is entitled to vote at the time of any vote to approve and
adopt the Merger Agreement, the Merger and all agreements related to the Merger
and any actions related thereto at any meeting of the stockholders of the
Company, and at any adjournment thereof (or by written consent in lieu of a
meeting), at which such Merger Agreement and other related agreements (or any
amended version thereof), or such other actions, are submitted for the
consideration and vote of the stockholders of the Company. The Stockholder
hereby agrees that it will not vote (or give a written consent with respect to)
any Shares in favor of the approval of any (i) Acquisition Proposal (as defined
in the Merger Agreement), (ii) reorganization, recapitalization, liquidation or
winding up of the Company or any other extraordinary transaction involving the
Company, (iii) corporate action the consummation of which would frustrate the
purposes, or prevent or delay the consummation, of the transactions contemplated
by the Merger Agreement, or (iv) other matter relating to, or in connection
with, any of the foregoing matters.
4.3 Termination of Certain Restrictions. The restrictions contained in
Sections 4.1 and 4.2 above shall terminate immediately upon the Closing.
4.4 Bound by Provisions of the Stockholders Agreement. The Stockholder
hereby agrees that Stockholder has received and read a copy of the Stockholders
Agreement. The Stockholder further agrees that by signing this Agreement and
accepting the Shares, the Stockholder, as a holder of the Shares, and the
Stockholder's successors and transferees, will become parties to the
Stockholders Agreement and
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will be bound by the terms and provisions of the Stockholders Agreement
applicable to such Shares, in accordance with Section 2 thereof, including
without limitation, provisions applicable to any sale or other disposition of
the Shares. Furthermore, the Stockholder agrees that the Shares are subject to
the Stockholders Agreement and that this provision will be deemed the Transfer
Agreement (as defined in the Stockholders Agreement).
5. Miscellaneous.
5.1 Transfers to Permitted Transferees. Prior to the transfer of Shares
to a Permitted Transferee (other than a transfer in connection with or
subsequent to a Sale of the Company), each transferring Stockholder shall
deliver to the Company a written agreement of the proposed transferee (a)
evidencing such Person's undertaking to be bound by the terms of this Agreement
and (b) acknowledging that the Shares transferred to such Person will continue
to be Shares for purposes of this Agreement in the hands of such Person. Any
transfer or attempted transfer of Shares or Acquisition Corp. Shares in
violation of any provision of this Agreement or the Stockholders Agreement shall
be void.
5.2 Recapitalizations, Exchanges, Etc., Affecting Acquisition Corp.
Shares. The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to Acquisition Corp. Shares, to any and all securities
of Acquisition Corp. or any successor or assign of Acquisition Corp. (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for, or in substitution of the Acquisition Corp. Shares,
by reason of any dividend payable in Acquisition Corp. Shares, issuance of
Acquisition Corp. Shares, combination, recapitalization, reclassification,
merger, consolidation or otherwise.
5.3 Binding Effect. The provisions of this Agreement shall be binding
upon and accrue to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assign.
5.4 Amendment; Waiver. This Agreement may be amended only by a written
instrument signed by the parties hereto. No waiver by any party hereto of any of
the provisions hereof shall be effective unless set forth in a writing executed
by the party so waiving.
5.5 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed therein.
5.6 Jurisdiction. Any suit, action or proceeding with respect to this
Agreement, or any judgment entered by any court in respect of any thereof, shall
be brought in any court of competent jurisdiction in the State of New York, and
each of Acquisition Corp. and the Stockholder hereby submits to the exclusive
jurisdiction of such courts for the purpose of any such suit, action, proceeding
or judgment. Each of the Stockholder and Acquisition Corp. hereby irrevocably
waives any objections which it may now or hereafter have to the laying of the
venue of any suit, action or proceeding arising out of or relating to this
Agreement brought in any court of competent jurisdiction in the State of
Delaware, and hereby further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum.
5.7 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when personally delivered,
telecopied (with confirmation of receipt),
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one day after deposit with a reputable overnight delivery service (charges
prepaid) and five days after deposit in the Mail (postage prepaid and return
receipt requested) to the address set forth below or such other address as the
recipient party has previously delivered notice to the sending party.
(a) If to Acquisition Corp.:
Xx. Xxx Xxxxxx
c/o Kane Xxxxxxx, P.C.
1350 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
(b) If to the Stockholder, to the address shown beneath such
Stockholder's name on the signature page attached hereto with copies to:
5.8 Integration. This Agreement and the documents referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter, other than the Stockholders Agreement. In the
event of a conflict between the terms and conditions of this Agreement and the
Stockholders Agreement, the terms and conditions of the Stockholders Agreement
shall govern.
5.9 Injunctive Relief. The Stockholder and its Permitted Transferees
each acknowledges and agrees that a violation of any of the terms of this
Agreement will cause Acquisition Corp. irreparable injury for which adequate
remedy at law is not available. Accordingly, it is agreed that Acquisition Corp.
shall be entitled to an injunction, restraining order or other equitable relief
to prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof, in addition to any other
remedy to which it may be entitled at law or equity.
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5.10 Rights Cumulative; Waiver. The rights and remedies of the
Stockholder and Acquisition Corp. under this Agreement shall be cumulative and
not exclusive of any rights or remedies which either would otherwise have
hereunder or at law or in equity or by statute, and no failure or delay by
either party in exercising any right or remedy shall impair any such right or
remedy or operate as a waiver of such right or remedy, nor shall any single or
partial exercise of any power or right preclude such party's other or further
exercise or the exercise of any other power or right. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any preceding or succeeding breach and no failure by
either party to exercise any right or privilege hereunder shall be deemed a
waiver of such party's rights or privileges hereunder or shall be deemed a
waiver of such party's rights to exercise the same at any subsequent time or
times hereunder.
5.11 Counterparts. This Agreement may be executed in separate
counterparts (including by means of telecopied signature pages), and by
different parties on separate counterparts each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement as of the date first above written.
SPECIALTY ACQUISITION CORP.
By:______________________________
Name:
Title:
STOCKHOLDER
By:______________________________
Name:
Address:
Telecopier:
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SCHEDULE I
Contribution Schedule
Number of
Number of Company Number of Acquisition
Stockholder Shares Owned Contributed Shares Corp. Shares
----------- ------------ ------------------ ------------
--------------------------------------------------------------------------------------------------------------------
Alexander Enterprise Holdings Corp. 279,700 279,700 279,667 (1)
--------------------------------------------------------------------------------------------------------------------
Xxx Xxxxxx 401,677 401,667 401,645 (2)
--------------------------------------------------------------------------------------------------------------------
First Global Holdings Limited 244,655 244,655 244,642 (3)
--------------------------------------------------------------------------------------------------------------------
Oracle Investments and Holdings Limited 244,656 244,656 244,643 (3)
--------------------------------------------------------------------------------------------------------------------
Ionic Holdings LDC 244,655 244,655 244,642 (3)
--------------------------------------------------------------------------------------------------------------------
Three Greens Holdings Limited 98,376 98,376 98,370 (4)
--------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx 348,188 109,892 109,892
--------------------------------------------------------------------------------------------------------------------
The Xxxxx Xxxxxxx Settlement 40,111 12,659 12,659
--------------------------------------------------------------------------------------------------------------------
LEG Partners III SBIC, L.P. 602,689 190,215 190,215
--------------------------------------------------------------------------------------------------------------------
Wynnefield Partners Small Cap Value, L.P. 206,549 65,190 65,190
--------------------------------------------------------------------------------------------------------------------
Wynnefield Partners Small Cap Value, L.P. I 248,050 78,287 78,287
--------------------------------------------------------------------------------------------------------------------
Wynnefield Partners Small Cap Value 104,008 32,826 32,826
Offshore Fund, Ltd.
--------------------------------------------------------------------------------------------------------------------
(1) Pursuant to the Stockholders Agreement, Alexander Enterprise Holdings Corp.
holds an additional 33 shares of common stock of Acquisition Corp.
(2) Pursuant to the Stockholders Agreement, Xxx Xxxxxx holds an additional 22
shares of common stock of Acquisition Corp.
(3) Pursuant to the Stockholders Agreement, each of First Global Holdings
Limited, Oracle Investments and Holdings Limited, and Ionic Holdings LDC
hold an additional 13 shares of common stock of Acquisition Corp.
(4) Pursuant to the Stockholders Agreement, Three Greens Holdings Limited holds
an additional 6 shares of common stock of Acquisition Corp.
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