SUBSCRIPTION AGREEMENTLLC Subscription Agreement |
|
|
|
You are currently viewing: This LLC Subscription Agreement involves
Cooper Tyre & Rubber Company UK Limited | CSA Acquisition Corp | Cypress Associates II LLC | Cypress Group LLC | Cypress Merchant B II CV | Street Partners II LP. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search LLC Subscription Agreement by:
EX-10.9 Subscription Agreement EXHIBIT 10.09 EXECUTION COPY SUBSCRIPTION AGREEMENT SUBSCRIPTION AGREEMENT, dated as of December 23, 2004 (this "Agreement"), among Cypress Merchant Banking Partners II L.P., a Delaware limited partnership ("Cypress Onshore"), Cypress Merchant B II C.V., a limited partnership formed under the laws of The Netherlands ("Cypress Offshore"), 55th Street Partners II L.P., a Delaware limited partnership ("55th Street") and Cypress Side-By-Side LLC, a Delaware limited liability company ("Side-by-Side" and, together with Cypress Onshore, Cypress Offshore and 55th Street, "Cypress") and CSA Acquisition Corp., a Delaware corporation (the "Company"). WHEREAS, pursuant to that certain Stock Purchase Agreement, dated as of September 16, 2004, as amended as of December 3, 2004 (the "Purchase Agreement"), by and among Cooper Tire & Rubber Company, a Delaware corporation ("Cooper"), Cooper Tyre & Rubber Company UK Limited, a company organized under the laws of England and Wales (together with Cooper, the "Sellers") and the Company, the Company will purchase equity interests held by the Sellers in the Sold Companies (the "Transaction"); and WHEREAS, on the terms and subject to the conditions set forth below, Cypress desires to subscribe for and acquire from the Company, and the Company desires to issue and sell to Cypress, the number of shares of common stock, par value $0.01 per share (the "Common Stock"), of the Company set forth herein. NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, the adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1. Definitions. Capitalized terms used and not defined herein shall have the meaning assigned to such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the meanings set forth below: "55th Street" has the meaning assigned to such term in the preamble hereto. "Affiliate" of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. The term "control" means, with respect to any Person, the power to direct or cause the direction of the management or policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Agreement" has the meaning set forth in the preamble hereto. "Business Day" means any day other than a Saturday, Sunday or day on which commercial banks in New York, New York are authorized or required by law to remain closed. "Closing" has the meaning set forth in Section 3 below. 2 "Closing Date" has the meaning set forth in Section 3 below. "Common Stock" has the meaning set forth in the preamble hereto. "Company" has the meaning set forth in the preamble hereto. "Cooper" has the meaning assigned to such term in the preamble hereto. "Cypress" has the meaning assigned to such term in the preamble hereto. "Cypress Offshore" has the meaning assigned to such term in the preamble hereto. "Cypress Onshore" has the meaning assigned to such term in the preamble hereto. "Governmental Body" means any government or governmental or regulatory body thereof, or political subdivision thereof, of any country or subdivision thereof, whether international, supranational, national, federal, state or local, or any agency or instrumentality thereof, or any court or regulatory (including a stock exchange or other self-regulatory body) authority or agency. "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder. "Person" means any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivisions thereof or any group comprised of two or more of the foregoing. "Purchase Agreement" has the meaning set forth in the preamble hereto. "Purchase Price" has the meaning set forth in Section 2 below. "Registration Rights Agreement" means the Registration Rights Agreement, substantially in the form of Exhibit B hereto. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "Sellers" has the meaning assigned to such term in the preamble hereto. "Side-by-Side" has the meaning assigned to such term in the preamble hereto. "Stockholders Agreement" means the Stockholders Agreement substantially in the form of Exhibit A hereto. "Transaction" has the meaning set forth in the preamble hereto. 3 2. Subscription for and Purchase of the Common Stock. Pursuant to the terms and subject to the conditions set forth in this Agreement, Cypress hereby subscribes for and agrees to purchase, and the Company hereby agrees to issue and sell to Cypress, on the Closing Date 1,590,000 shares of Common Stock (the "Shares") having an aggregate purchase price equal to $159,000,000 (the "Purchase Price"). For purposes of this Agreement, the price per share of Common Stock shall be $100, subject to adjustments in respect thereof for any stock dividends, combinations, splits or the like subsequent to the date hereof and prior to the Closing. Of the total number of Shares to be so acquired by Cypress, the portion of the Shares of Common Stock to be acquired by each of Cypress Onshore, Cypress Offshore, 55th Street and Side-by-Side shall be 1,508,152.1964 shares by Cypress Onshore, 64,113.9393 shares by Cypress Offshore, 14,553.8642 shares by 55th Street and 3,180 shares by Side-by-Side. 3. The Closing. The closing (the "Closing") of the issuance and sale of the Shares shall take place on the day (the "Closing Date ") of, and simultaneously with, the consummation of the Transaction pursuant to the Purchase Agreement. The Closing shall occur at the offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York 10017, or at such other place as the parties may mutually agree. At the Closing, the following shall occur: (a) Cypress shall deliver to the Company the Purchase Price payable by delivery to the Company of such amount by a single wire transfer of immediately available funds as consideration for all of the Shares to be issued hereunder; and (b) the Company shall duly issue the Shares to be received by Cypress and shall deliver to Cypress stock certificates representing the Shares purchased by Cypress consistent with the apportionment described in Section 2. 4. Stockholders Agreement and Registration Rights Agreement. On the date of consummation of the Transaction pursuant to the Purchase Agreement, Cypress and the Company shall execute and deliver the Stockholders Agreement and the related Registration Rights Agreement. 5. Representations and Warranties of the Company. The Company represents and warrants to Cypress as follows: (a) (i) the Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and (ii) this Agreement has been duly authorized, executed and delivered by the Company and is valid, binding and enforceable against the Company in accordance with its terms; (b) the Shares to be issued to Cypress pursuant to this Agreement, when issued and delivered in accordance with the terms hereof, will be duly and validly issued and, upon receipt by the Company of the Purchase Price therefor, will be fully paid and nonassessable with no personal liability attached to the ownership thereof and will not be 4 subject to any preemptive rights and restrictions on transfer other than under applicable securities laws, the terms of this Agreement and the Stockholders Agreement; (c) the execution, delivery and performance by the Company of this Agreement will not (i) conflict with the certificate of incorporation or by-laws of the Company, (ii) result in any material breach of any terms or provisions of, or constitute a material default under, any material contract, agreement or instrument to which the Company is a party or by which the Company is bound, (ii) violate any United States federal or state law, rule or regulation applicable to the Company or (iv) require any consent, waiver, approval, order, permit or authorization of, or declaration or filing with, or notification or report to, any Governmental Body; (d) immediately after giving effect to the transactions pursuant to the Purchase Agreement, including equity issued in connection therewith on the date of the closing thereunder, the capitalization of the Company shall be substantially as set forth on Exhibit C hereto; and (e) the transactions contemplated by this Agreement do not violate any "blue sky" or other securities law of any jurisdiction or require the Company to file a registration statement with the SEC or apply to qualify any securities under the "blue sky" or other securities law of any jurisdiction. 6. Representations and Warranties of Cypress. Each of Cypress Onshore, Cypress Offshore 55th Street, and Side-by-Side represents and warrants to the Company as follows: (a) (i) each of Cypress Onshore, Cypress Offshore and 55th Street is a limited partnership duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation and has full partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder, (ii) Side-by-Side is a limited liability company duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and (iii) each of this Agreement has been duly authorized, executed and delivered by each of Cypress Onshore, Cypress Offshore, 55th Street and Side-by-Side and is valid, binding and enforceable against each of Cypress Onshore, Cypress Offshore, 55th Street and Side-by-Side in accordance with its terms; (b) the execution, delivery and performance by Cypress of this Agreement will not (i) conflict with the partnership agreement or certificate of formation of Cypress Onshore, Cypress Offshore or 55th Street, (ii) conflict with the certificate of incorporation or bylaws of Side-by-Side, (iii) result in any material breach of any terms or provisions of, or constitute a material default under, any material contract, agreement or instrument to which Cypress Onshore, Cypress Offshore, 55th Street or Side-by-Side is a party or by which Cypress Onshore, Cypress Offshore, 55th Street or Side-by-Side is bound or (iv) except for compliance with the applicable requirements of the HSR Act, require any 5 consent, waiver, approval, order, permit or authorization of, or declaration or filing with, or notification or report to, any Governmental Body; (c) Cypress is acquiring the Shares for investment and solely fo






