Exhibit 4.3
EAGLE FAMILY FOODS HOLDINGS, INC.
SUBSCRIPTION AGREEMENT
September 27, 1999
GE Private Placement Partners II,
a Limited Partnership
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Warburg, ▇▇▇▇▇▇ Ventures, L.P.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇
Gentlemen:
This letter is being written for the purpose of setting forth the
basic terms of the understandings between Eagle Family Foods Holdings, Inc., a
Delaware corporation (the "Company"), and you in connection with the purchase by
you and sale by the Company of shares of common stock, par value $0.01 per
share, of the Company (the "Common Stock"), warrants to purchase shares of
Common Stock (the "Warrants") and shares of Series B Non-Voting Preferred Stock,
par value $0.01 per share ("Series B Preferred Stock") as set forth below.
If you are in agreement with the terms and conditions set forth
herein, please sign the last page of one copy of this letter and return it to
us, whereupon this letter shall represent a legally binding agreement between us
and shall supersede any prior agreement between you and the Company or any third
party as regards the sale and purchase of stock of the Company. Please keep the
other copy of this letter for your files.
1. AUTHORIZATION OF CAPITAL STOCK. The Company has authorized the creation of
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(i) 1,200,000 shares of Common Stock and (ii) 1,000,000 shares of preferred
stock, par value $0.01 per share (the "Preferred Stock"). The terms,
limitations and relative rights and preferences of the Common Stock are set
forth
in the Amended and Restated Certificate of Incorporation of the Company (the
"Certificate of Incorporation"). The terms, limitations and relative rights and
preferences of the Series B Preferred Stock are set forth in the Certificate of
Designations, Number, Voting Powers, Preferences and Rights of Series B Non-
Voting Preferred Stock of the Company (the "Certificate of Designation").
2. PURCHASE AND SALE OF SECURITIES.
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(a) Subject to the terms and conditions hereof, on the Closing Date, as defined
herein, the Company shall issue to you and you shall purchase from the
Company, the number of shares of Common Stock, Warrants to purchase the
number of shares of Common Stock and shares of Series B Preferred Stock
(collectively, the "Securities") set forth opposite your name on Schedule I
hereto for the amount per share in cash set forth on Schedule I hereto (the
"Purchase Price").
(b) Such issuance and purchase shall be effected by the Company executing and
delivering to you duly executed certificates evidencing the shares of
Common Stock and shares of Series B Preferred Stock (collectively, the
"Shares") and duly executed warrants evidencing the Warrants to be
subscribed by you, duly registered in your name against delivery by you to
the Company of the amounts set forth opposite your name on Schedule I.
Such payment shall be made by wire transfer.
(c) The closing of the sale shall take place on September 27, 1999 (the
"Closing Date").
(d) On the Closing Date, the Company shall deliver to you such officers'
certificates, good standing certificates and opinions as you shall
reasonably request relating to the transactions contemplated hereby.
3. RESTRICTIONS ON SECURITIES. None of the Securities (including any
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securities received as a result of dividends, splits or any other forms of
recapitalization in respect of such Securities) shall be Transferred (as
hereinafter defined), either voluntarily or involuntarily, directly or
indirectly, (i) except pursuant to an effective registration under the
Securities Act (as hereinafter defined), or in a transaction which, in the
opinion of counsel reasonably satisfactory to the Company, qualifies as an
exempt transaction under the Securities Act and the rules and regulations
promulgated thereunder and (ii) in
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accordance with the terms of the Stockholders Agreement, dated as of January 23,
1998, as amended by Amendment No. 1 to the Stockholders Agreement, dated as of
the date hereof, by and among the Company, each of you and the Management
Investors (as defined therein) (as the same may be amended from time to time,
the "Amended Stockholders Agreement").
4. WARRANTIES AND REPRESENTATIONS OF THE COMPANY. The Company represents and
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warrants that:
(a) The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Annexed hereto as
Exhibits A and B, respectively, are true and complete copies of the
Certificate of Incorporation (including the Certificate of Designation) and
the Amended Bylaws as in effect on the date hereof.
(b) The Board of Directors of the Company (the "Board") has authorized the
execution, delivery, and performance of this Agreement, and each of the
transactions contemplated hereby. No other corporate action is necessary
to authorize such execution, delivery and performance, and upon such
execution and delivery, this Agreement shall constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms. The Board has authorized the issuance and delivery of the
Securities in accordance with this Agreement.
(c) The Shares and Warrants to be issued and sold by the Company pursuant to
this Agreement, when issued in accordance with the provisions hereof, will
be validly issued by the Company, fully paid and nonassessable shares and
fully paid and duly executed warrants, respectively, of the Company. Upon
issuance in accordance with the terms of the Warrants, the shares of Common
Stock issuable upon the exercise of the Warrants will be duly authorized,
validly issued by the Company, fully paid and nonassessable shares of the
Company.
(d) Except as has been obtained, the creation, authorization, issuance, offer
and sale of the Securities do not require any consent, approval or
authorization of, or filing, registration or qualification with, any
governmental authority on the part of the Company or the vote, consent or
approval in any manner of the holders of any security (as defined in
Section 2(1) of the Securities Act) of the Company as a condition to the
execution and delivery of this Agreement or the creation,
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authorization, issuance, offer and sale of the Securities. The execution
and delivery by the Company of this Agreement and the performance by the
Company of its obligations hereunder will not violate (i) the terms and
conditions of the Certificate of Incorporation or the Amended Bylaws of the
Company, or any agreement or instrument to which the Company is a party or
by which it is bound or (ii) subject to the accuracy of your
representations and warranties contained in Section 5 hereof, any federal
or state law.
5. INVESTOR REPRESENTATIONS.
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You represent and warrant that:
(a) Offering Exemption. You understand that the Securities have not been
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registered under the Securities Act, nor qualified under any state
securities laws, and that they are being offered and sold pursuant to an
exemption from such registration and qualification based in part upon your
representations contained herein.
(b) Knowledge of Offer. You are familiar with the business and operations of
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the Company and have been given the opportunity to obtain from the Company
all information that you have requested regarding its business plans and
prospects.
(c) Knowledge and Experience; Ability to Bear Economic Risks. You have such
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knowledge and experience in financial and business matters that you are
capable of evaluating the merits and risks of the investment contemplated
by this Agreement; and you are able to bear the economic risk of this
investment in the Company (including a complete loss of this investment).
(d) Limitations on Disposition. You recognize that no public market exists for
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the Securities, and none will exist in the future (other than as set forth
in the Amended Registration Rights Agreement). You understand that you
must bear the economic risk of this investment indefinitely unless your
Securities are registered pursuant to the Securities Act or an exemption
from such registration is available, and unless the disposition of such
Securities is qualified under applicable state securities laws or an
exemption from such qualification is available, and that the Company has no
obligation or present intention of so registering the Securities (other
than as set forth in the Amended Registration Rights Agreement). You
further understand that there is no assurance that any exemption from the
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Securities Act will be available, or, if available, that such exemption
will allow you to Transfer any or all the Securities, in the amounts, or at
the times you might propose. You understand at the present time Rule 144
promulgated under the Securities Act by the Securities and Exchange
Commission ("Rule 144") is not applicable to sales of the Securities
because they are not registered under Section 12 of the Exchange Act (as
hereinafter defined) and there is not publicly available the information
concerning the Company specified in Rule 144. You further acknowledge that
the Company is not presently under any obligation to register under Section
12 of the Exchange Act or to make publicly available the information
specified in Rule 144 and that it may never be required to do so. You
further acknowledge the restrictions on disposition and other terms set
forth in the Amended Stockholders Agreement.
(e) Investment Purpose. You are acquiring the Securities solely for your own
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account for investment and not with a view toward the resale, Transfer, or
distribution thereof, nor with any present intention of distributing the
Securities. No other Person (as hereinafter defined) has any right with
respect to or interest in the Securities to be purchased by you, nor have
you agreed to give any Person any such interest or right in the future.
(f) Capacity. You have full power and legal right to execute and deliver this
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Agreement and to perform your obligations hereunder.
6. COVENANTS.
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(a) Conduct of Business and Maintenance of Existence. The Company will
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continue to engage in business of the same general type as will be
conducted by it on the Closing Date, and preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in
the normal conduct of its business.
(b) Compliance with Laws. The Company will comply in all material respects
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with all applicable laws, rules, regulations and orders except where the
failure to comply would not have a material adverse effect on the business,
properties, operations, prospects or financial condition of the Company.
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(c) Insurance. The Company will maintain insurance with responsible and
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reputable insurance companies or associations in such amounts and covering
such risks as is usually carried by companies of similar size and credit
standing engaged in similar business and owning similar properties,
provided that such insurance is and remains available to the Company at
commercially reasonable rates.
(d) Keeping of Books. The Company will keep proper books of record and
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account, in which full and correct entries shall be made of all financial
transactions and the assets and business of the Company in accordance with
generally accepted accounting principles.
(e) Lost, etc. Certificates Evidencing Shares or Warrants; Exchange. Upon
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receipt by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of any certificate evidencing any
Shares or any Warrant owned by you, and (in the case of loss, theft or
destruction) of an unsecured indemnity satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of such certificate or Warrant, if
mutilated, the Company will make and deliver in lieu of such certificate or
Warrant a new certificate or Warrant of like tenor. Your agreement of
indemnity shall constitute an indemnity satisfactory to the Company for
purposes of this Section 6. Upon surrender of any certificate representing
any Shares or Warrants for exchange at the office of the Company, the
Company at its expense will cause to be issued in exchange therefor new
certificates or Warrants in such denomination or denominations as may be
requested for the same aggregate number of Shares or Warrants represented
by the Security so surrendered and registered as such holder may request.
The Company will also pay the cost of all deliveries of certificates for
such Shares or Warrants to you (including the cost of insurance against
loss or theft in an amount satisfactory to the holders) upon any exchange
provided for in this Section 6.
(f) Termination. The provisions of this Section 6 (other than Section 6(e),
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which shall survive) shall remain in effect until the closing of an Initial
Public Offering (as defined in the Amended Stockholders Agreement).
7. SECURITIES ACT RESTRICTIONS. In addition to the legends required by Section
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1(a) of the Amended Stockholders
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Agreement, the certificates evidencing the Securities will bear the following
legend reflecting the restrictions on the transfer of such securities contained
in this Agreement:
"The securities evidenced hereby have not been registered under the
Securities Act of 1933, as amended (the "Act"), and may not be transferred
except pursuant to an effective registration under the Act or in a
transaction which, in the opinion of counsel reasonably satisfactory to the
Company, qualifies as an exempt transaction under the Act and the rules and
regulations promulgated thereunder."
8. OTHER AGREEMENTS. On the Closing Date, the Company and each of you shall
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execute and mutually deliver a counterpart of the Amended Stockholders Agreement
and the Amended Registration Rights Agreement.
9. INTERPRETATION OF THIS AGREEMENT.
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(a) Terms Defined. As used in this Agreement, the following terms have the
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respective meaning set forth below:
Exchange Act: the Securities Exchange Act of 1934, as amended.
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Person: an individual, partnership, joint-stock company, corporation,
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limited liability company, trust or unincorporated organization, and a
government or agency or political subdivision thereof.
Amended Registration Rights Agreement: that certain Registration
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Rights Agreement, dated as of January 23, 1998, as amended by Amendment No. 1 to
the Registration Rights Agreement, dated as of the date hereof, and as amended
from time to time, by and among the Company, each of you, the Management
Investors and the other Investors identified therein.
Securities Act: the Securities Act of 1933, as amended.
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Transfer: any sale, assignment, pledge, hypothecation, or other
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disposition or encumbrance.
(b) Directly or Indirectly. Where any provision in this Agreement refers to
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action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall
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be applicable whether such action is taken directly or indirectly by such
Person.
(c) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State.
(d) Section Headings. The headings of the sections and subsections of this
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Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
10. MISCELLANEOUS.
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(a) Notices. All Communications under this Agreement shall be in writing and
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shall be delivered by hand or facsimile or mailed by overnight courier or
by registered mail or certified mail, postage prepaid:
(i) if to GE Private Placement Partners II, a Limited Partnership
("GEI"), at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇, or at such other
address or facsimile number as GEI may have furnished the other
parties hereto in writing;
(ii) if to Warburg, ▇▇▇▇▇▇ Ventures, L.P. ("Warburg") at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇ (Fax No.:
(▇▇▇) ▇▇▇-▇▇▇▇, or at such other address or facsimile number as
Warburg may have furnished the other parties hereto in writing;
(iii) if to the Company, to Eagle Family Foods Holdings, Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
Esq. (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇), or at such other address or
facsimile number as the Company may have furnished the other parties
hereto in writing.
(b) Any notice so addressed shall be deemed to be given: if delivered by hand
or facsimile, on the date of such delivery, if a business day, otherwise
the first business day thereafter; if mailed by courier, on the first
business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of
such mailing.
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(c) Advances; Expenses and Taxes. (i) The Company agrees to pay the reasonable
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fees and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ and such other counsel
as shall have been engaged by you, incurred in connection with the
negotiation, preparation, execution and delivery of this Agreement, the
Amended Stockholders Agreement, the Amended Registration Rights Agreement
and the other instruments and agreements entered into pursuant to this
Agreement or such other agreements, and any amendments to the same.
(ii) The Company will pay, and save and hold each of you harmless
from any and all liabilities (including interest and penalties)
with respect to, or resulting from any delay or failure in
paying, stamp and other taxes (other than income taxes), if any,
which may be payable or determined to be payable on the
execution and delivery or acquisition of the Securities.
(d) Reproduction of Documents. This Agreement and all documents relating
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thereto, including, without limitation, (i) consents, waivers and
modifications relating hereto which may hereafter be executed, (ii)
documents received by you on the Closing Date (except for certificates
evidencing the Shares themselves and the Warrants themselves), and (iii)
financial statements, certificates and other information previously or
hereafter furnished to you, may be reproduced by you by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other similar
process and you may destroy any original document so reproduced. All
parties hereto agree and stipulate that any such reproduction shall be
admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by you in the regular course of
business) and that any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence.
(e) Survival. All warranties, representations, and covenants made by you and
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the Company herein or in any certificate or other instrument delivered by
one of you or the Company under this Agreement shall be considered to have
been relied upon by the Company or you, as the case may be, and shall
survive all deliveries to you of the Securities, or payment to the Company
for such Securities, regardless of any investigation made by the Company or
one of you, as the case may be, or on the Company's or your behalf. All
statements in any such certificate
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or other instrument shall constitute warranties and representations by the
Company hereunder.
(f) Successors and Assigns; No Third Party Beneficiaries. This Agreement shall
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inure to the benefit of and be binding upon the successors and assigns of
each of the parties. Nothing in this Agreement shall confer upon any
Person not a party to this Agreement any rights or remedies of any nature
or kind whatsoever under or by reason of this Agreement.
(g) Entire Agreement; Amendment and Waiver. This Agreement, the Amended
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Registration Rights Agreement, the Amended Stockholders Agreement and the
Certificate of Incorporation constitute the entire understandings of the
parties hereto and supersede all prior agreements or understandings with
respect to the subject matter hereof among such parties. This Agreement
may be amended, and the observance of any term of this Agreement may be
waived, with (and only with) the written consent of the Company and each of
you.
(h) Severability. In the event that any part or parts of this Agreement shall
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be held illegal or unenforceable by any court or administrative body of
competent jurisdiction, such determination shall not effect the remaining
provisions of this Agreement which shall remain in full force and effect.
(i) Obligations Several. Notwithstanding anything to the contrary contained in
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this Agreement, each of your representations and warranties, covenants and
other agreements under this Agreement shall be several, but not joint.
(j) Limitation on Enforcement of Remedies. The Company hereby agrees that it
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will not assert against the limited partners of either of you any claim it
may have under this Agreement by reason of any failure or alleged failure
by either of you to meet its obligations hereunder.
(k) Counterparts. This Agreement may be executed in one or more counterparts,
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each of which shall be deemed an original and all of which together shall
be considered one and the same agreement.
Please indicate your acceptance and approval of the foregoing in the
space provided below.
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EAGLE FAMILY FOODS HOLDINGS, INC.
By: /s/ ▇▇▇▇ O'▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ O'▇. ▇▇▇▇▇▇
Title: President and Chief
Executive Officer
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ACCEPTED AND APPROVED
AS OF THE 27th DAY OF
SEPTEMBER, 1999
GE INVESTMENT PRIVATE PLACEMENT
PARTNERS II, A LIMITED PARTNERSHIP
By: GE Investment Management
Incorporated, its General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
WARBURG, ▇▇▇▇▇▇ VENTURES, L.P.
By: Warburg, ▇▇▇▇▇▇ & Co.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Managing Director
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SCHEDULE I
PURCHASES OF SECURITIES
Price Per
Number of Share of Price Per
Shares of Series B Number of Share of
Series B Preferred Shares of Common Stock
Name of Subscriber Preferred Stock Stock Common Stock Warrants and Warrants
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GE INVESTMENT PRIVATE 49.5 $100,000.00 50,000 11,006.5 $1.00
PLACEMENT PARTNERS II, A
LIMITED PARTNERSHIP
WARBURG, ▇▇▇▇▇▇ VENTURES, L.P. 49.5 $100,000.00 50,000 11,006.5 $1.00
