EX-10.10
Subscription Agreement
EXHIBIT 10.10
EXECUTION COPY
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of December 23, 2004
(this
"Agreement"), among GS Capital Partners 2000, L.P. ("Goldman
Onshore"), GS
Capital Partners 2000 Offshore, L.P. ("Goldman Offshore"), GS
Capital Partners
2000 GmbH & Co. Beteiligungs KG ("Goldman KG"), GS Capital
Partners 2000
Employee Fund, L.P. ("Goldman Employee") and Goldman Sachs Direct
Investment
Fund 2000, L.P. ("Goldman Direct" and, together with Goldman
Onshore, Goldman
Offshore, Goldman KG and Goldman Employee, "Goldman") 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,
Goldman desires to subscribe for and acquire from the Company, and
the Company
desires to issue and sell to Goldman, 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:
"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.
"Closing Date" has the meaning set forth in Section 3
below.
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"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.
"Goldman" has the meaning assigned to such term in the
preamble
hereto.
"Goldman Direct" has the meaning assigned to such term in
the preamble
hereto.
"Goldman Employee" has the meaning assigned to such term
in the
preamble hereto.
"Goldman KG" has the meaning assigned to such term in the
preamble
hereto.
"Goldman Offshore" has the meaning assigned to such term
in the
preamble hereto.
"Goldman 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.
"Stockholders Agreement" means the Stockholders Agreement
substantially in the form of Exhibit A hereto.
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"Transaction" has the meaning set forth in the preamble
hereto.
2. Subscription for and Purchase of the Common Stock.
Pursuant to the
terms and subject to the conditions set forth in this Agreement,
Goldman hereby
subscribes for and agrees to purchase, and the Company hereby
agrees to issue
and sell to Goldman, 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
Goldman, the portion of the Shares of Common Stock to be acquired
by each of
Goldman Onshore, Goldman Offshore, Goldman KG, Goldman Employee and
Goldman
Direct shall be 899,797 shares by Goldman Onshore, 326,952 shares
by Goldman
Offshore, 37,609 shares by Goldman KG, 285,892 shares by Goldman
Employee and
39,750 shares by Goldman Direct.
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) Goldman 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 Goldman
and shall deliver to Goldman stock certificates representing
the Shares
purchased by Goldman 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,
Goldman 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 Goldman 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 Goldman 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
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nonassessable with no personal liability attached to the
ownership thereof
and will not be 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 Goldman. Each of
Goldman Onshore,
Goldman Offshore, Goldman KG, Goldman Employee and Goldman Direct
represents and
warrants to the Company as follows:
(a) (i) each of Goldman Onshore, Goldman Offshore,
Goldman KG, Goldman
Employee and Goldman Direct is an entity duly formed, validly
existing and
in good standing under the laws of the jurisdiction of its
formation and
has full power and authority to execute and deliver this
Agreement and to
perform its obligations hereunder and (ii) each of this
Agreement has been
duly authorized, executed and delivered by each of Goldman
Onshore, Goldman
Offshore, Goldman KG, Goldman Employee and Goldman Direct and
is valid,
binding and enforceable against each of Goldman Onshore,
Goldman Offshore,
Goldman KG, Goldman Employee and Goldman Direct in accordance
with its
terms;
(b) the execution, delivery and performance by Goldman of
this
Agreement will not (i) conflict with the organizational
documents of
Goldman Onshore, Goldman Offshore, Goldman KG, Goldman
Employee or Goldman
Direct, (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 Goldman Onshore, Goldman Offshore, Goldman
KG, Goldman
Employee or Goldman Direct is a party or by which Goldman
Onshore, Goldman
Offshore, Goldman KG, Goldman Employee or Goldman Direct is
bound or (iii)
except for compliance with the applicable requirements of the
HSR Act,
require any consent, waiver, approval, order, permit or
authorization of,
or declaration or filing with, or notification or report to,
any
Governmental Body;
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(c) Goldman is acquiring the Shares for investment and
solely for its
own account and not with a present view to, or for resale in
connection
with, the distribution or other disposition thereof;
(d) Goldman has been advised by the Company that:
(i) the offer and sale of the Shares have not been
registered
under the Securities Act;
(ii) there is no established market for the Shares
and it is not
anticipated that there will be any public
market for the
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