Exhibit 10.42
SUBSCRIPTION AGREEMENT
North Atlantic Trading Company, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
THIS SUBSCRIPTION is made and entered into as of the 24th day of March,
1998, by and among NORTH ATLANTIC TRADING COMPANY, INC., a Delaware corporation
formerly named North Atlantic Trading Acquisition Company, Inc. (the "Company"),
and Xxxxx X. Xxxxxxx (the "Subscriber").
WHEREAS, the Company is authorized to purchase 10,100 shares of Voting
Common Stock (the "Share Repurchase"), par value $.01 per share (the "Voting
Common Stock") from Xxxxxxx Xxxxxxxx; and
WHEREAS, the Company is authorized to re-issue the shares purchased
from Xxxxxxx Xxxxxxxx and sell such Shares pursuant to this Agreement; and
WHEREAS, the Subscriber is purchasing the number of shares of Voting
Common Stock indicated opposite his name on the signature page hereto;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements hereinafter contained, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Sale of Voting Common Stock. Subject to the terms and
conditions herein set forth, the Company shall issue and sell to the Subscriber,
and the Subscriber shall purchase from the Company, the number of shares of
Voting Common Stock set forth opposite his name on the signature page hereto, at
a purchase price of $40.00 per share.
2. Subscriber Representations. In order to induce the Company
to sell the Voting Common Stock to the Subscriber and to enter into this
Agreement, the Subscriber makes the following representations and warranties,
which shall be true, correct and complete in all material respects on the date
hereof:
a. The Subscriber has obtained, to the extent he deems
necessary, professional advice with respect to the risks inherent in
the Purchase of the securities described in Section 1, as applicable,
and the suitability of the securities to be purchased by the Subscriber
pursuant to this Agreement in light of the Subscriber's financial
condition and investment needs;
b. The Subscriber, either alone or with the assistance of his
own professional advisor, has such knowledge and experience in
financial and business matters that he is capable of evaluating the
merits and risks inherent in securities to be received by him pursuant
to this Agreement, as applicable, and the Subscriber has the net worth
to undertake such risk;
c. The Subscriber is aware of the Company's business affairs
and has acquired sufficient additional information about the Company to
reach an informed and knowledgeable decision regarding the merits and
risks of investing in the securities to be received by him pursuant to
this Agreement. The Subscriber has had ample opportunity to ask
questions of the Company and its representatives and to seek
independent investment, tax, and legal advice prior to investing in the
securities to be received by him pursuant to this Agreement.
d. The Subscriber believes that the securities to be received
by him pursuant to this Agreement are suitable for him based on his
investment objectives and financial needs, and the subscriber has
adequate means for providing his current financial needs and personal
contingencies and has no need for liquidity of investment with respect
to the securities to be received by him pursuant to this Agreement;
e. The Subscriber is in a financial position to hold the
securities to be received by him pursuant to this Agreement, as
applicable, for an indefinite period of time and he is able to bear the
economic risk and withstand a complete loss of his investment in the
securities to be received by him pursuant to this Agreement;
f. The Subscriber is not acquiring any securities to be
received by him with a view to any distribution thereof in a
transaction that would violate the Securities Act or the securities
laws of any State of the United States or any other applicable
jurisdiction; and
g. The Subscriber understands that the securities to be
received by him pursuant to this Agreement will be issued by the
Company without registration under the Securities Act and without
qualification and/or registration under applicable state securities
laws ("Blue Sky Laws") pursuant to exemptions from registration and/or
qualification contained in the Securities Act and in the Blue Sky Laws.
The Subscriber understands that the securities must be held
indefinitely unless (A) subsequently registered and/or qualified under
the Securities Act and under the Blue Sky Laws unless exemptions from
the registration and/or qualification requirements under the Securities
Act and under the Blue Sky Laws are available in connection with any
proposed transfer of the securities by the Subscriber and (B) the
proposed transfer is permitted under the terms of this Agreement.
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3. Stockholders' Agreement. The Subscriber hereby agrees that
he shall (i) be bound by all of the provisions and conditions of the Exchange
and Stockholders' Agreement, dated as of June 25, 1997, between the Company and
each of the stockholders parties thereto, as such agreement may be amended from
time to time (the "Stockholders' Agreement"), and (ii) become a Management
Stockholder (as such term is defined in the Stockholders' Agreement) under the
Stockholders' Agreement as if such Subscriber was an original signatory thereto.
4. Headings. The headings of sections of this Agreement are
for convenience only and shall not be considered in construing or interpreting
any of the terms or provisions hereof
5. Word Meanings. The words such as "herein", "hereinafter",
"hereof", and "hereunder" refer to this Agreement as a whole and not merely to a
subdivision in which such words appear unless the context otherwise requires.
The singular shall include the plural, and vice versa, unless the context
otherwise requires.
6. Counterparts. This Agreement may be executed in several
counterparts, all of which together shall constitute one agreement binding on
all parties hereto, notwithstanding that all the parties have not signed the
same counterpart.
7. Entire Agreement. This Agreement, as effective on the date
hereof, contain the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior writings or agreements with
respect to such subject matter.
8. Governing Law; Consent to Jurisdiction and Venue. This
Agreement shall be construed according to and governed by the laws of the State
of Delaware without regard to principles of conflict of laws. The parties hereby
submit to the exclusive jurisdiction and venue of the state courts of New York
County, New York and the United States District Court for the Southern District
of New York, and agree that the Company or the Subscriber may, at their option,
enforce their rights hereunder in such courts.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
NORTH ATLANTIC TRADING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: President
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Number of Shares to be Purchased: 2,250
Total Purchase Price: $90,000.00
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