SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "Agreement"), dated as of
December 15, 2000, is made and entered into by and between MascoTech, Inc.,
a Delaware corporation (the "Company"), and Credit Suisse First Boston U.S.
Executive Advisors, L.P. (the "Purchaser").
WHEREAS, the Purchaser desires to invest $17,780.80 in cash to
purchase Shares (as hereinafter defined) of the Company.
WHEREAS, Purchaser desires to subscribe for and purchase from
the Company, and the Company desires to sell to Purchaser, Shares of the
Company.
WHEREAS, Purchaser is subscribing for the Shares in connection
with the transactions contemplated by the Agreement and Plan of Merger
dated as of September 29, 2000, by and among Xxxxxxx Industries, Inc.
("Xxxxxxx"), Simmer Acquisition Company LLC ("SACLLC") and Simmer
Acquisition Corporation ("SAC") (as modified by the Assignment Agreement
dated as of the date hereof, "Merger Agreement").
WHEREAS, pursuant to the Merger Agreement SAC will be merged
(the"Merger") with and into Xxxxxxx with Xxxxxxx as the surviving
corporation (the "Surviving Corporation").
IN CONSIDERATION of the foregoing and of their mutual covenants
set forth in this Agreement, the parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Company" has the meaning set forth in introductory paragraph
hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations in effect from time to time
thereunder.
"Shares" means the common stock, par value $1.00 per share, of
the Company.
"Person" means any individual, corporation, partnership,
association, trust or any other entity or organization, including a
government, a political subdivision or an agency or instrumentality
thereof.
"Purchase Price" means $17,778.80, based upon a price of $16.90
per Share.
"Purchased Shares" has the meaning set forth in Section 2(a).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations in effect from time to time thereunder.
2. Subscription for and Acquisition of Purchased Shares.
Purchaser and the Company agree as follows:
(a) Subscription for Purchased Shares: Purchase Price. Upon the
terms and subject to the conditions hereinafter set forth, Purchaser hereby
subscribes for and shall purchase, and the Company shall issue and sell to
Purchaser, the number of Shares set forth below Purchaser's signature on
the signature pages hereof (collectively, the "Purchased Shares") at the
Purchase Price in cash.
(b) Closing. The closing (the "Closing") of the purchase and
sale of the Purchased Shares shall take place on the date hereof at the
offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, or
at such other place as the parties hereto shall mutually agree. At the
Closing, (i) the Company shall deliver to Purchaser a certificate or
certificates representing its Purchased Shares as subscribed for by
Purchaser and (ii) Purchaser shall deliver or cause to be delivered to the
Company the Purchase Price in immediately available funds.
(c) Restricted Shares. The Shares for which Purchaser is
subscribing under this Agreement are not registered under the Securities
Act, or qualified under any state securities laws. The Shares for which
Purchaser is subscribing under this Agreement are being issued on the basis
that the offering and/or sale by the Company to Purchaser provided for in
this Agreement and the issuance by the Company of such Shares to Purchaser
under this Agreement are exempt from registration under the Securities Act
and from applicable state securities laws. The Company's reliance on such
exemptions is predicated on Purchaser's representations and warranties set
forth in this Agreement.
(d) Legend. Each certificate representing the Shares shall bear
substantially the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR (ii) AN
APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER. ANY SALE PURSUANT TO
CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH
EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE."
3. Representations and Warranties and Other Agreements of
Purchaser.
(a) Representations and Warranties. Purchaser represents and
warrants that:
(i) The Purchased Shares being acquired by Purchaser hereunder
are being acquired for Purchaser's own account and not with the view
to, or for resale in connection with, any distribution.
(ii) Purchaser acknowledges that it is an accredited investor
within the meaning of Rule 501 of Regulation D under the Securities
Act. Purchaser has such knowledge, skill and experience in business,
financial and investment matters, that it is capable of evaluating
the merits, risks and consequences of an investment in the Shares and
Purchaser is able to bear the economic risk of loss of this
investment. Purchaser has made such independent investigation of the
Company and the transactions contemplated by the Merger Agreement as
it deems necessary or advisable in connection with its purchase of
the Purchased Shares.
(iii) Purchaser has been advised by the Company that: (A)
neither the offer nor sale of any Purchased Shares has been
registered under the Securities Act or any state or foreign
securities or "blue sky" laws; (B) the Purchased Shares are
characterized as "restricted securities" under the Securities Act as
they are being acquired from the Company in a transaction not
involving a public offering and that the Purchaser will not transfer,
sell, assign, pledge or otherwise dispose of the Purchased Shares
without the prior consent of the Company except as permitted by the
Shareholders Agreement (as defined below); and (C) that any transfer
of such Purchased Shares will be subject to the provisions and
covenants of a shareholder agreement (the "Shareholders Agreement")
dated November 28, 2000 by and between the Company and certain
shareholders of the Company.
(iv) Purchaser has duly and validly executed and delivered this
Agreement.
(v) This Agreement constitutes a valid, binding and enforceable
agreement of Purchaser except as enforceability may be limited by (A)
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws relating to or affecting
creditors' rights generally and (B) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(vi) The execution, delivery and performance by Purchaser of
this Agreement does not and will not (A) constitute or result in a
breach of or default (or an event which, with notice or lapse of
time, or both, has the potential of constituting a default) under any
agreement to which Purchaser is a party, (B) violate any law binding
upon Purchaser or (C) require the consent of any third party.
4. Representations and Warranties and Other Agreements of the
Company.
(a) Representations and Warranties. The Company represents and
warrants to Purchaser that:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
(ii) The Company has full corporate power and authority to
execute and deliver this Agreement and the other documents or
transactions contemplated by the Merger Agreement and to perform its
obligations hereunder and thereunder. This Agreement has been duly
and validly executed and delivered by the Company.
(iii) The documents or transactions contemplated by the Merger
Agreement to which the Company is a party have been duly authorized
by the Company.
(iv) This Agreement constitutes a valid, binding and
enforceable agreement of the Company, except as such enforceability
may be limited by (A) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar
laws relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(v) The execution, delivery and performance by the Company of
this Agreement and the other documents or transactions contemplated
by the Merger Agreement do not and will not (A) constitute or result
in a breach of or a default (or an event which, with notice or lapse
of time, or both, has the potential of constituting a default) under
any charter document or By-laws of the Company or any material
agreement, instrument or document to which the Company is a party or
to which any of its assets is subject or bound, (B) violate any law
binding upon the Company or (C) require the consent of any third
party or governmental agency except for any consents which have been
or will be obtained.
(vi) The Purchased Shares, upon issuance by the Company
following receipt of the consideration provided for herein, will be
duly authorized, validly issued, fully paid and non-assessable free
and clear of liens, charges, encumbrances and preemptive rights.
(vii) Assuming the accuracy of the representations set forth in
Section 3 hereof, the offer and sale of the Purchased Shares is
exempt from the registration requirements of the Securities Act.
(viii)The terms and conditions of this Agreement are
substantially similar to those terms and conditions contained in all
other such subscription agreements being entered into by the Company
and other subscribers for Shares in connection with the Merger and
the Company has not entered into any side agreements with the other
subscribers with respect to their investment in the Company.
(ix) Immediately prior to the Closing, the authorized capital
stock of the Company consists of 275 million Shares, of which
34,384,053 issued and outstanding. Immediately following the Closing,
the authorized capital stock of the Company shall consist of 275
million Shares, of which 41,839,667 Shares shall be issued and
outstanding. Except in connection with the foregoing, pursuant to the
Shareholders Agreement or in connection with existing restricted
stock awards, no subscription, warrant, option, convertible security
or other right (contingent or otherwise) to purchase or acquire any
shares of capital stock of the Company is authorized or outstanding
and the Company has no obligation (contingent or otherwise) to issue
any subscription, warrant, option, convertible security or other such
right.
(b) Notification of Changes. The Company shall notify Purchaser
upon the occurrence of any event prior to Closing which would cause any
representation or warranty of the Company contained in this Agreement to be
false or incorrect.
(c) Use of Proceeds. The Company shall use the proceeds from
the sale of the Shares to consummate the transactions contemplated by the
Merger Agreement and to pay fees and expenses in connection with the
consummation of the Merger.
(d) Repayment of Purchase Price. The Company agrees that, if
the Merger shall not have been consummated by December 15, 2000, the
Company shall immediately repay to Purchaser an amount equal to the
Purchase Price but only to the extent that the Purchaser has actually paid
the Purchase Price to the Company.
5. Conditions to Performance.
(a) Conditions to the Company's Obligations. The Company's
obligations to issue to Purchaser the Purchased Shares hereunder are
subject to the performance by Purchaser at or prior to the Closing of all
of the agreements of Purchaser contemplated to be performed hereunder at or
prior to the Closing and to the satisfaction at or prior to the Closing of
the following further condition that the representations and warranties of
Purchaser contained in Section 3 hereof shall be true and correct as of the
Closing.
(b) Conditions to Purchaser's Obligations. The obligations of
Purchaser to deliver the Purchase Price for its Purchased Shares are
subject to the condition that the representations and warranties of the
Company contained in Section 4 hereof shall be true and correct as of the
Closing. The obligations of Purchaser are further subject to the receipt of
an opinion of Xxxxxx Xxxxxx & Xxxxxxx dated as of the Closing, in the form
attached hereto as Exhibit B.
6. Survival. The representations and warranties and the
covenants of the Company set forth in this Agreement shall survive the
Closing and the Merger.
7. Binding Effect. The provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and the
heirs, successors and assigns of the parties hereto.
8. Assignment. Purchaser shall not assign any rights under this
Agreement without the prior written consent of the Company. Any purported
assignment of rights hereunder by Purchaser which has not been consented to
by the Company shall be void.
9. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION
OF THE LAWS OF ANY OTHER JURISDICTION.
10. Invalidity of Provisions. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction
shall not affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability of this
Agreement, including that provision, in any other jurisdiction.
11. Headings; Execution in Counterparts. The headings and
captions contained herein are for convenience of reference only and shall
not control or affect the meaning or construction of any provision hereof.
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original and all of which together shall constitute but one
and the same instrument.
12. Notices. All notices and other communications provided for
herein shall be dated and in writing and shall be deemed to have been duly
given when delivered, if delivered personally or sent by registered or
certified mail, return receipt requested, postage prepaid, and when
received if delivered otherwise, to the party to whom it is directed:
(a) If to the Company, to it at the following address:
MascoTech, Inc.
00000 Xxx Xxxx Xxxx
Xxxxxx, XX 00000
Attn: President
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx: Xxxxxxxx X. Xxxxxxxxx, Esq.
(b) If to Purchaser, to Purchaser at the address of Purchaser
listed in the Company's records or at such other address as such party
shall have specified by notice in writing to the other party in accordance
with this Section 12.
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
Four Times Square
35th Floor
New York, New York 10036
Attn: Xxxxxx Xxxxxx
13. Amendment. This Agreement may not be amended, modified or
supplemented and no waivers of or consents to departures from the
provisions hereof may be given unless consented to in writing by Purchaser,
on the one hand, and the Company, on the other hand. Unless otherwise
specified in such waiver or consent, a waiver or consent given hereunder
shall be effective only in the specific instance and for the specific
purpose for which given.
14. Integration. The parties agree that this Agreement and the
Shareholders Agreement contain the entire understanding between the parties
hereto and thereto relating to the subject matter hereof and thereof.
15. Third Party Beneficiaries. Nothing expressed or implied in
this Agreement is intended or shall be construed to confer upon or give to
any third party any rights or remedies against any party hereto.
16. Further Assurances. Each of the parties hereto covenants
and agrees upon the request of the other, to do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and delivered all such
further acts, deeds, documents, assignments, transfers, conveyances, powers
of attorney and assurances as may be reasonably necessary or desirable to
give full effect to this Agreement.
17. Publicity. Neither of the parties hereto shall issue any
press release or make any public disclosure regarding the transactions
contemplated hereby unless such press release or public disclosure shall be
approved by those parties mentioned in such press release or public
disclosure in advance. Notwithstanding the foregoing, each of the parties
hereto may, in documents required to be filed by it with the SEC or other
regulatory body, make such statements with respect to the transactions
contemplated hereby as each may be advised by counsel is legally necessary
or advisable, and may make such disclosure as it is advised by its counsel
is required by law.
[Signature Page Follows]
IN WITNESS WHEREOF. Purchaser and the Company have
executed this Agreement as of the date first above written.
MASCOTECH. INC.
By: /s/ Xxxxx X. Liner
------------------------------
Name: Xxxxx X. Liner
Title: Vice President
CREDIT SUISSE FIRST BOSTON U.S.
EXECUTIVE ADVISORS, L.P.
By: CREDIT SUISSE FIRST BOSTON
ADVISORY PARTNERS, LLC, its
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Attorney in fact
Number of Shares to be purchased by
above Purchaser: 1,052
