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EXHIBIT 10.8
EXECUTION COPY
MANAGEMENT SUBSCRIPTION AGREEMENT
This MANAGEMENT SUBSCRIPTION AGREEMENT is dated as of November 30, 1999,
by and among OSI Acquisition, Inc., a Delaware corporation (the "Company"), and
the individuals whose signatures appear on the signature pages hereto
(collectively, the "Purchasers" and each individually, a "Purchaser").
Capitalized terms used but not otherwise defined herein shall have the meaning
ascribed to such terms in Section 1.
WHEREAS, the Company and the Purchasers desire to enter into an agreement
to provide for the acquisition by each Purchaser of beneficial ownership of the
number of shares of Common Stock and/or Preferred Stock set forth opposite such
Purchaser's name on the attached Schedule 1 (the "Purchaser Stock"), upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual undertaking contained
herein, the parties hereto agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings.
"BRS" means Bruckmann, Xxxxxx, Xxxxxxxx & Co. II, L.P., a Delaware limited
partnership.
"Common Stock" means the Company's Common Stock, par value $0.01 per
share.
"Management Stock Agreement" means the Management Stock Agreement, dated
on even date herewith, by and among the Company, BRS, and the Purchasers, as
amended, restated or modified from time to time.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Preferred Stock" means the Company's Junior Preferred Stock, par value
$0.01 per share.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Stockholders Agreement" means the Stockholders Agreement, dated on even
date herewith by and among the Company, BRS, the Purchasers and the other
stockholders from time to time party thereto, as amended, restated or modified
from time to time.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a
corporation, a majority of the total voting power
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of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or (ii) if a partnership, limited liability company, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, limited liability company, association or
other business entity if such Person or Persons shall be allocated a majority
of partnership, limited liability company, association or other business entity
gains or losses or shall be or control the managing director or general partner
of such partnership, limited liability company, association or other business
entity.
2. Purchase and Sale of Purchased Stock; Representations and Warranties of
the Purchasers.
(a) Upon the execution of this Agreement, each Purchaser will purchase,
and the Company will sell, (i) the number of shares of Common Stock set forth
opposite such Purchaser's name on the attached Schedule 1 at a purchase price
of $1.00 per share and (ii) the number of shares of Preferred Stock set forth
opposite such Purchaser's name on the attached Schedule 1 at a purchase price
of $100.00 per share . In furtherance thereof, each Purchaser will deliver to
the Company a check or promissory note (payable to the order of such payee as
may be designated by the Company) in the aggregate amount set forth opposite
such Purchaser's name on the attached Schedule 1. Upon execution of this
Agreement, each Purchaser shall execute and deliver the Stockholders Agreement
and the Management Stock Agreement.
(b) In connection with the purchase and sale of the Purchaser Stock
hereunder, each Purchaser represents and warrants to the Company that:
(i) the Purchaser Stock to be acquired by such Purchaser (or such
Purchaser's designee) will be acquired for such Purchaser's own account
(or for the account of one or more members of such Purchaser's family)
and not with a view to, or any present intention of, distribution thereof
in violation of the Securities Act, or any applicable state securities
laws, and the Purchaser Stock will not be disposed of in contravention of
the Securities Act or any applicable state securities laws.
(ii) no commission, fee or other remuneration is to be paid or
given, directly or indirectly, to any Person for soliciting such
Purchaser to purchase the Purchaser Stock.
(iii) such Purchaser (1) is either an officer or employee of the
Company or one of its Subsidiaries or is otherwise an "accredited
investor" as such term is defined in Rule 501 of Regulation D of the
Securities Act, (2) is sufficiently sophisticated in financial matters to
analyze the investment in the Purchaser Stock, (3) is able to evaluate
the risks and benefits of the investment in the Purchaser Stock, and (4)
has determined that such
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investment in the Purchaser Stock is suitable for such Purchaser, based
upon such Purchaser's financial situation and needs, as well as such
Purchaser's other securities holdings.
(iv) such Purchaser:
(A) has not been convicted within the last five years of any
felony or misdemeanor in connection with the offer, purchase, or
sale of any security or any felony involving fraud or deceit,
including, but not limited to, forgery, embezzlement, obtaining
money under false pretenses, larceny, or conspiracy to defraud;
(B) is not currently subject to any state administrative
enforcement order or judgment entered by a state securities
administrator within the last five years or is subject to any
state's administrative enforcement order or judgment in which fraud
or deceit, including, but not limited to, making untrue statements
of material facts and omitting to state material facts, was found
and the order or judgment was entered within the last five years;
(C) is not subject to any state's administrative enforcement
order or judgment which prohibits, denies or revokes the use of any
exemption from registration in connection with the offer, purchase
or sale of securities; or
(D) is not currently subject to any order, judgment or decree
of any court of competent jurisdiction, entered within the last
five years, temporarily or preliminarily restraining or enjoining
such Purchaser from engaging in or continuing any conduct or
practice in connection with the purchase or sale of any security or
involving the making of any false filing with the state.
(v) such Purchaser is able to bear the economic risk of such
Purchaser's investment in the Purchaser Stock for an indefinite period of
time and the Purchaser understands that the Purchaser Stock has not been
registered under the Securities Act and cannot be sold unless
subsequently registered under the Securities Act or an exemption from
such registration is available.
(vi) such Purchaser has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
Purchaser Stock and has had full access to such other information
concerning the Company as the Purchaser has requested. The Purchaser has
reviewed, or has had an opportunity to review, the following documents:
(A) the Company's Certificate of Incorporation and (B) the Merger
Agreement.
(vii) this Agreement constitutes the legal, valid and binding
obligation of such Purchaser, enforceable in accordance with its terms
(except as the same may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally or
by general equitable principles), and the execution, delivery and
performance of this Agreement by such Purchaser does not and will not
conflict with, violate or cause a breach
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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.
(c) As an inducement to the Company to issue the Purchaser Stock to such
Purchaser, and as a condition thereto, such Purchaser acknowledges and agrees
that neither the issuance of the Purchaser Stock to the Purchaser (or to the
account of such Purchaser) nor any provision contained herein shall, in the
case of any Purchaser who is an officer or employee of the Company, entitle
such Purchaser to remain in the employment of the Company and its Subsidiaries
or affect the right of the Company to terminate such Purchaser's employment at
any time for any reason.
3. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, mailed
by certified or registered mail, return receipt requested and postage prepaid,
or sent via a nationally recognized overnight courier, or sent via facsimile to
the recipient (followed by telephone confirmation to the receiving party).
Such notices, demands and other communications will be sent to the address
indicated below:
To the Company to:
X'Xxxxxxxx Industries Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: President and Secretary
Facsimile: (000) 000-0000 (President)
(000) 000-0000 (Secretary)
With a copy, which shall not constitute notice to the Company, to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
To each Purchaser to:
[PURCHASER]
c/o X'Xxxxxxxx Industries Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
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4. Miscellaneous.
(a) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(b) 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.
(c) 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.
(d) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Purchaser, the Company and their respective successors and assigns (including
subsequent holders of Purchaser Stock); provided, that the rights and
obligations of the Purchaser under this Agreement shall not be assignable
except in connection with a permitted transfer of Purchaser Stock hereunder.
(E) GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF DELAWARE WILL GOVERN
ALL QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS HERETO WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
(f) Remedies. Each of the parties to this Agreement will be entitled to
enforce its rights under this Agreement specifically, to recover damages and
costs (including reasonable attorneys' fees) caused by any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be
an adequate remedy for any breach of the provisions of this Agreement and that
any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or deposit) for specific
performance and/or other injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
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(g) Amendment and Waiver. The provisions of this Agreement may be amended
and waived only with the prior written consent of the Company and the
Purchasers.
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IN WITNESS WHEREOF, the parties hereto have executed this Management Stock
Purchase Agreement as of the date first written above.
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Its: President and Chief Operating
Officer
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxx Xxxxxxxx
---------------------------------------------
XXXXXXX X. XXXXXXXX & XXXX XXXXXXXX, JOINT
TENANTS
/s/ Xxxxxxx X. X'Xxxxxxxx
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XXXXXXX X. X'XXXXXXXX
/s/ Xxxxxxx X. X'Xxxxxxxx
/s/ Xxxxxxxx X'Xxxxxxxx
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XXXXXXX X. X'XXXXXXXX & XXXXXXXX
X'XXXXXXXX, JOINT TENANTS
/s/ Xxxxxxx X. X'Xxxxxxxx
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XXXXXXX X. X'XXXXXXXX,
AS CUSTODIAN FOR XXXX X'XXXXXXXX
/s/ Xxxxxxx X. X'Xxxxxxxx
---------------------------------------------
XXXXXXX X. X'XXXXXXXX,
AS CUSTODIAN FOR XXXXXXX X'XXXXXXXX
/s/ Xxxxxxx X. X'Xxxxxxxx
---------------------------------------------
XXXXXXX X. X'XXXXXXXX,
AS CUSTODIAN FOR XXXXXX X'XXXXXXXX
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/s/ Xxxxxxx X. Xxxxx
---------------------------------------------
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx /s/ Xxxx X. Xxxxx
---------------------------------------------
XXXXXXX X. XXXXX & XXXX X. XXXXX,
JOINT TENANTS
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------
THE ESTATE OF XXXXXXXX X. XXXXXX
/s/ Xxxxxx X. X'Xxxxxxxx, Xx.
---------------------------------------------
XXXXXX X. X'XXXXXXXX, XX.
/s/ Xxxxxx X. X'Xxxxxxxx, Xx.
---------------------------------------------
BATO FAMILY INVESTMENT LP
/s/ Xxxxx X. X'Xxxxxxxx
---------------------------------------------
XXXXX X. X'XXXXXXXX
/s/ Xxxxxx X. X'Xxxxxxxx, Xx.
---------------------------------------------
XXXXXX X. X'XXXXXXXX, XX., AS CUSTODIAN FOR
XXXXX X. X'XXXXXXXX
/s/ Xxxxxx X. X'Xxxxxxxx, Xx.
/s/ Xxxxx X'Xxxxxxxx
---------------------------------------------
XXXXXX X. X'XXXXXXXX, XX. & XXXXX X'XXXXXXXX,
JOINT TENANTS
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXXXX X. XXXXXXX
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/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxx, III
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XXXXXXX X. XXXXXX, III
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
---------------------------------------------
XXXXXXX X. XXXXXX & XXXXX X. XXXXXX,
JOINT TENANTS
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXXXX X. XXXXXXX
/s/ Xxxxx Xxxx X'Xxxxxxxx Xxxxxxx
---------------------------------------------
XXXXX XXXX X'XXXXXXXX XXXXXXX
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXXXX X. XXXXXXX & XXXXX X. XXXXXXX,
JOINT TENANTS
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXXXX X. XXXXXXX
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/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXXX X. XXXXXXX
/s/ Xxxxxxxx Xxxxxx
---------------------------------------------
XXXXXXXX XXXXXX
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxxxx Xxxxxx
---------------------------------------------
XXXXXXXX XXXXXX & XXXXXXXX XXXXXX,
JOINT TENANTS
/s/ Xxxxx X. Xxxxxx
---------------------------------------------
XXXXX X. XXXXXX
/s/ Xxxx X. Xxxxxxx
---------------------------------------------
XXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxxxx
---------------------------------------------
XXXX X. XXXXXXXXX
/s/ Xxxx X. Xxxxxxxxx
---------------------------------------------
XXXX X. XXXXXXXXX & XXXX X. XXXXXXXXX,
JOINT TENANTS
/s/ Xxxxxx Xxxxxxx X'Xxxxxxxx
---------------------------------------------
XXXXXX XXXXXXX X'XXXXXXXX
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/s/ Xxxxxx Xxxxxxx X'Xxxxxxxx
/s/ Xxxxxxxx X'Xxxxxxxx
---------------------------------------------
XXXXXX XXXXXXX X'XXXXXXXX &
XXXXXXXX X'XXXXXXXX
/s/ Xxxxxxx Day
---------------------------------------------
XXXXXXX DAY
/s/ Xxxxxxxx Xxxx X'Xxxxxxxx Day
---------------------------------------------
XXXXXXXX XXXX X'XXXXXXXX DAY
/s/ Xxxxxxx Day /s/ Xxxxxxxx X. Day
---------------------------------------------
XXXXXXX DAY & XXXXXXXX X. DAY
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
XXXXXXX X. XXXXXX, AS CUSTODIAN FOR
XXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
---------------------------------------------
XXXXXXX X. XXXXXX & XXXXX X. XXXXXX,
JOINT TENANTS
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------------
XXXXXX X. XXXXXXXXX
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXXXX X. XXXXXXX
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XXXXXX X. XXXXX & CO., CUST. FBO
XXXXX X. XXXXXXX XXX
By: /s/
---------------------------------------------
Name:
Its:
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxxxxxx
---------------------------------------------
XXXX X. XXXXXXXXXXX
/s/ Xxxxx Xxxxxxxxxx
---------------------------------------------
XXXXX XXXXXXXXXX
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxx Xxxxxxxxxx
---------------------------------------------
XXXXX XXXXXXXXXX & XXXXXX XXXXXXXXXX,
JOINT TENANTS
/s/ Xxx X. Xxxxxx
---------------------------------------------
XXX X. XXXXXX
/s/ Xxxx X. Xxx, Xx.
---------------------------------------------
XXXX X. XXX, XX.
/s/ Xxxxx X. Edge
---------------------------------------------
XXXXX X. EDGE
/s/ Xxxxxxx X. Xxxx
---------------------------------------------
XXXXXXX X. XXXX
/s/ Xxxxxxxx X. Xxxx /s/ Xxxxxx X. Xxxx
---------------------------------------------
XXXXXXX X. XXXX & XXXXXX X. XXXX
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/s/ Xxxxxxx Xxxxxxx
---------------------------------------------
XXXXXXX XXXXXXX
/s/ Xxx X. Xxxxxxx
---------------------------------------------
XXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXXXX X. XXXXXXX
/s/ Xxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXX X. XXXXXXX & XXXXX X. XXXXXXX,
JOINT TENANTS
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxx
---------------------------------------------
XXXXXXX X. XXXX
/s/ Xxxxx X. Xxxxxx
---------------------------------------------
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------------
XXXXX X. XXXXXX & XXXXXXXXX X. XXXXXX,
JOINT TENANTS
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/s/ Xxxxxx X. X'Xxxxxxxx
---------------------------------------------
XXXXXX X. X'XXXXXXXX
Agreed and Accepted:
BRUCKMANN, XXXXXX, XXXXXXXX & CO. II, L.P.
By: BRSE, L.L.C.
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name:
Title:
