EXHIBIT 10.10
EXECUTION COPY
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "AGREEMENT"), dated as of November 30,
1999, by and among OSI Acquisition, Inc., a Delaware corporation (the
"COMPANY"), Bruckmann, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Co. II, L.P. ("BRS") and the
individuals whose names appear on the signature pages attached hereto (together
with BRS, the "PURCHASERS"). Except as otherwise indicated herein, capitalized
terms used herein are defined in Section 5 hereof.
WHEREAS, the Purchasers wish to conduct the operations of the Company
and have agreed to make certain capital contributions to the Company in
consideration for certain shares of capital stock of the Company; and
WHEREAS, the Company and the Purchasers desire to enter into an
agreement pursuant to which the Company will sell to the Purchasers and the
Purchasers will buy from the Company certain shares of the Company's Common
Stock, Junior Preferred Stock and, in the case of BRS, Senior Preferred Stock
(collectively, the "SECURITIES") in each case having the rights and preferences
set forth in the Amended and Restated Certificate of Incorporation of the
Company, a copy of which is attached hereto as EXHIBIT A.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. AUTHORIZATION AND CLOSING.
(a) THE SECURITIES. The Company has authorized the issuance and sale to
each Purchaser the classes and quantities of Securities set forth opposite such
Purchaser's name on the attached SCHEDULE 1, in each case at a purchase price
equal to $1.00 per share of Common Stock, $100.00 per share of Junior Preferred
Stock and $1.50 per share of Senior Preferred Stock.
(b) PURCHASE AND SALE OF THE SECURITIES. At the Closings (as defined
below), the Company shall sell to the Purchasers, and subject to the terms and
conditions set forth herein, the Purchasers shall purchase from the Company the
Securities.
(c) THE CLOSINGS. The closings of the transactions contemplated by this
Agreement shall take place as described below at the offices of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, Citicorp Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ at 10:00
a.m. on each of November 29, 1999 (the "FIRST CLOSING DATE"), and November 30,
1999, (the "SECOND CLOSING DATE"). The closing of the transactions to be
effectuated on the First Closing Date under paragraph (i) below is referred to
herein as the "FIRST CLOSING." The closing of the transactions to be effectuated
on the Second Closing
Date pursuant to paragraph (ii) below is referred to herein as the "SECOND
CLOSING." The First Closing and the Second Closing are referred to herein,
collectively, as the "CLOSINGS."
(i) FIRST CLOSING. On the First Closing Date, (x) BRS shall
contribute to the capital of the Company an amount equal to $259,978.50, payable
by check or wire transfer of immediately available funds, and (y) in exchange
therefor, the Company shall issue to BRS 173,319 shares of Senior Preferred
Stock. In furtherance thereof, the Company shall deliver to BRS a certificate
(or certificates) representing such shares of Senior Preferred Stock and bearing
the legend described in Section 3 below.
(ii) SECOND CLOSING. On the Second Closing Date, (x) each
Purchaser shall contribute to the capital of the Company an amount equal to the
"contribution amount" set forth opposite such Purchaser's name on the attached
SCHEDULE 1 (except, in the case of BRS, any amount payable in respect of shares
of Senior Preferred Stock to the extent such amount was previously contributed
to the Company pursuant to paragraph (i) above), payable by check or wire
transfer of immediately available funds, and (y) the Company shall issue to each
Purchaser the classes and quantities of Securities set forth opposite such
Purchaser's name on the attached SCHEDULE 1 (except, in the case of BRS, any
shares of Senior Preferred Stock).
SECTION 2. PURCHASERS' INVESTMENT REPRESENTATIONS.
Each Purchaser hereby represent that:
(i) such Purchaser is acquiring the Securities to be purchased
by them hereunder or to be acquired by them pursuant hereto for their own
account with the present intention of holding such securities for investment
purposes and that they have no intention of selling such securities in a public
distribution in violation of the federal securities laws or any applicable state
securities laws;
(ii) such Purchaser is able to bear the economic risk of the
investment in the Securities for an indefinite period of time because the
Securities are subject to the transfer restrictions contained herein and have
not been registered under the 1933 Act;
(iii) such Purchaser has had an opportunity to ask questions
and receive answers concerning the terms and conditions of the offering of the
Securities and has had full access to such other information concerning the
Company as the Purchaser has requested. Purchaser has reviewed, or has had an
opportunity to review copies of the following documents, (A) the Stockholders
Agreement, (B) Amended and Restated Certificate of Incorporation of the Company,
and (C) the Registration Rights Agreement;
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(iv) such Purchaser either (A) is an "accredited investor" as
defined in rule 501(a) under the 1933 Act or (B) has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of its prospective investment in the
Securities, is able to bear the economic risk of such investment and, at the
present time, is able to afford a complete loss of such investment; and
(v) this Agreement constitutes the legal, valid and binding
obligation of such Purchaser, enforceable in accordance with its terms, and the
execution, delivery, and performance of this Agreement by such Purchaser does
not and will not conflict with, violate, or cause a breach of any agreement,
contract, or instrument to which such Purchaser is a party or any judgment,
order, or decree to which such Purchaser is subject.
SECTION 3. SECURITIES ACT LEGEND
In the event that certificates representing the securities are issued
("CERTIFICATED SECURITIES") each certificate for Restricted Securities will be
imprinted with a legend in substantially the following form (the "SECURITIES ACT
LEGEND"):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIG INALLY ISSUED
ON NOVEMBER 30, 1999, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THE TRANSFER OF SUCH SECURITIES IS SUBJECT TO
THE CONDITIONS SPECIFIED IN THE AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION AND THE SECURITIES PURCHASE AGREEMENT, DATED AS OF
NOVEMBER 30, 1999, BETWEEN THE ISSUER (THE "COMPANY") AND CERTAIN
INVESTORS, AND THE COMPANY RESERVES THE RIGHT TO REFUSE TO TRANSFER
SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT
TO SUCH TRANSFER. UPON WRITTEN REQUEST, A COPY OF SUCH CONDITIONS WILL
BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF WITHOUT CHARGE."
Whenever any of the Securities cease to be Restricted Securities and are not
otherwise restricted securities, the holder thereof will be entitled to receive
from the Company, without expense, upon surrender to the Company of the
certificate or instrument, as the case may be, representing such Restricted
Securities, a new certificate or instrument, as the case may be, representing
such Restricted Securities of like tenor but not bearing a legend of the
character set forth above.
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SECTION 4. RESTRICTIONS ON TRANSFER.
(a) Each of the Purchasers hereby agrees that such Purchaser will not
transfer any of the Securities such Purchasers receives pursuant to Section 1
hereof, other than (i) in the case of BRS, transfers made pursuant to the terms
of the Stock Purchase Agreement dated as of the First Closing Date among BRS and
the several other parties thereto, and (ii) in the case of each Purchaser (and
in the case of BRS, its permitted transferees), transfers made pursuant to the
Merger Agreement.
(b) Any transfer or attempted transfer of any Securities in violation
of any provision of this Agreement shall be null and void, and the Company shall
not record such transfer on its books or treat any purported transferee of such
Securities as the owner of such Securities for any purpose.
SECTION 5. DEFINITIONS.
For the purposes of this Agreement, the following terms have the
meanings set forth below:
"AFFILIATE" of any particular Person means any other Person that
directly or indirectly controls, is controlled by or is under common control
with such Person. "CONTROL" means the posses sion, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities, by contract or
otherwise.
"AMENDED AND RESTATED CERTIFICATE OF INCORPORATION" means the Company's
Certificate of Incorporation as in effect on the Closing Date, a copy of which
is attached hereto as EXHIBIT A.
"COMMON STOCK" has the meaning set forth in the Amended and Restated
Certificate of Incorporation.
"JUNIOR PREFERRED STOCK" has the meaning set forth in the Amended and
Restated Certificate of Incorporation.
"MERGER AGREEMENT" means that certain Agreement and Plan of Merger date
as of May 17, 1999, between OSI Acquisition, Inc. and ▇'▇▇▇▇▇▇▇▇ Industries
Holdings, Inc., as in effect from time to time.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization or any other entity (including,
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without limitation, any governmental entity or any department, agency or
political subdivision thereof).
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
(as amended, restated or modified from time to time) to be entered into by and
among the Company, BRS and the other stockholders of the Company in connection
with the transactions contemplated under the Merger Agreement.
"RESTRICTED SECURITIES" means (i) the Securities issued hereunder and
(ii) any securities issued with respect to any of the Restricted Securities.
Restricted Securities will continue as such in the hands of any transferee;
PROVIDED, that as to any particular Restricted Securities, such securities shall
cease to be Restricted Securities when they have (a) been effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering them, (b) become eligible for sale pursuant to Rule 144 of
the Securities and Exchange Commission and disposed of in accordance therewith.
Whenever any particular certificated securities cease to be Restricted
Securities, the holder thereof shall be entitled to receive from the Company,
without expense, new certificates or instruments, as the case may be, not
bearing a Securities Act Legend of the character set forth in paragraph 3.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"SECURITIES AND EXCHANGE COMMISSION" includes any governmental body or
agency succeeding to the functions thereof.
"SENIOR PREFERRED STOCK" has the meaning set forth in the Amended and
Restated Certificate of Incorporation attached hereto as EXHIBIT A.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement (as amended,
restated or modified from time to time) to be entered into by and among the
Company, BRS and the other stockholders of the Company in connection with the
transactions contemplated under the Merger Agreement.
SECTION 6. MISCELLANEOUS.
(a) GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF DELAWARE WILL
GOVERN ALL QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND THE
PURCHASERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, ENFORCEABILITY,
VALIDITY AND BINDING EFFECT OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER
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OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(b) NOTICES. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable express courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the Purchasers and to the Company at the
addresses indicated below:
If to the Company:
c/o Bruckmann, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Co., L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
WITH A COPY (WHICH SHALL NOT CONSTITUTE NOTICE) TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Purchaser:
[PURCHASER]
c/o Bruckmann, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Co., L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [PURCHASER]
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
WITH A COPY (WHICH SHALL NOT CONSTITUTE NOTICE) TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(c) COMPLETE AGREEMENT. This Agreement embodies the complete agreement
and understanding among the parties and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
(d) COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(e) SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by each
Purchaser, the Company and their respective successors and assigns (including
subsequent holders of Securities); PROVIDED, that the rights and obligations of
the Purchasers under this Agreement shall not be assignable except in connection
with a permitted transfer of Securities hereunder.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Subscription
Agreement on the date first written above.
OSI ACQUISITION, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name:
Title:
BRUCKMANN, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & CO. II, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name:
Title:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ RICE ▇▇▇▇▇▇▇
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RICE ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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SCHEDULE 1
SECURITIES TO BE ISSUED AND PURCHASED
SECURITIES TO PURCHASE
------------------------------------------------------------
SHARES OF SHARES OF
SENIOR JUNIOR SHARES OF
PREFERRED PREFERRED COMMON CONTRIBUTION
PURCHASER STOCK STOCK STOCK TO CAPITAL
--------------------------------- ---------------- ------------------ ---------------- ---------------------
BRS 173,319 408,893.172 920,013.963 $ 41,964,226.44
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - 44.29 99.66 $ 4,528.99
Rice ▇▇▇▇▇▇▇ - 1,129.48 2,541.33 $ 115,489.33
▇▇▇▇▇▇ ▇▇▇▇▇ - 577.59 1,299.57 $ 59,058
▇▇▇▇▇ ▇▇▇▇▇▇ - 44.29 99.66 $ 4,528.99
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - 44.29 99.66 $ 4,528.99
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - 1,129.48 2,541.33 $ 115,489.33
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - 132.88 298.98 $ 13,586.98
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EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
OSI ACQUISITION, INC.
(SEE ATTACHED)
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