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.
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"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.
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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
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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
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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 for
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