Exhibit 10.3
Execution
Copy
THE SECURITIES OFFERED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ SECURITIES ACT ”), OR THE
SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN
RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE SECURITIES PURCHASED HEREUNDER ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND RESALE UNDER A STOCKHOLDERS AGREEMENT
AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT AND OTHER APPLICABLE LAWS PURSUANT TO REGISTRATION
OR EXEMPTION FROM REGISTRATION REQUIREMENTS
THEREUNDER.
MCP S TOCK S UBSCRIPTION A GREEMENT
This S TOCK S UBSCRIPTION A GREEMENT (the “Agreement”) is made as of
March 31, 2005 among MCP-MSC Acquisition, Inc., a Delaware
corporation (the “Company”), and each of the investors
listed on Schedule 1 hereto (each a “Subscriber”, and
collectively, the “Subscribers”).
Recitals
On or about the date hereof, the
Company will acquire (the “Acquisition”) all of the
equity interests of MSC Acquisition, Inc., a Florida corporation
(“MSC”), pursuant to a Stock Purchase Agreement dated
as of March 7, 2005, as from time to time in effect (the
“Stock Purchase Agreement”), among the Company, MSC and
the other parties thereto.
Under the Amended and Restated
Certificate of Incorporation of the Company, dated as of the date
hereof (the “Company’s Charter”), the Company is
authorized to issue shares of Common Stock, par value $.001 per
share (the “Common Stock”).
Each Subscriber is willing to
purchase, and the Company is willing to issue and sell to such
Subscriber, the number of shares of Common Stock set forth opposite
the name of such Subscriber on Schedule 1 hereto, all on the terms
and subject to conditions set forth herein.
It is anticipated that on or about
the date hereof: (i) the Acquisition will be consummated; and
(ii) the Company, the Subscribers and certain other Persons
party thereto will enter into a Stockholders Agreement
substantially in the form attached hereto as Exhibit A (the
“Stockholders Agreement”), which shall set forth
certain agreements with respect to, among other things, the
management of the Company and transfers of its shares in various
circumstances.
Agreement
In consideration of the foregoing,
and the representations, warranties, covenants and conditions set
forth below, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Definitions . Capitalized
terms defined in the Stockholders Agreement and used but not
otherwise defined in this Agreement are used herein as so
defined.
2. Sale and Purchase of
Subscription Securities .
2.1. On the terms and subject to the
conditions hereof, the Company hereby agrees to sell to each
Subscriber, and by its acceptance hereof such Subscriber agrees to
purchase from the Company for investment, on the Closing Date (as
defined in the Merger Agreement), the number of shares of Common
Stock set forth opposite the name of such Subscriber on Schedule
1 hereto at the respective purchase prices set forth on
Schedule 1 . The shares of Common Stock being purchased
by the Subscribers hereunder are referred to herein as the
“Subscription Securities”.
2.2. The sale and purchase of the
Subscription Securities shall take place at the same time and
location as, and shall be substantially contemporaneous with, the
Closing pursuant to the Stock Purchase Agreement (and as defined
therein). If, prior to the Closing hereunder, the Stock Purchase
Agreement shall be terminated, this Agreement shall automatically
terminate and be without further force and effect; provided
, however , that no such termination of this Agreement shall
relieve any party from liability for breach prior to such
termination.
2.3. At the Closing, against payment
to the Company by wire transfer of immediately available federal
funds, the Company will deliver certificates for the Subscription
Securities, registered in the respective names of the
Subscribers.
3. Representations and Warranties
of the Company . The Company represents and warrants to each
Subscriber that:
3.1. The Company is duly organized,
validly existing and in good standing under the laws of the State
of Delaware. The Company has made available to the Subscribers true
and complete copies of the By-Laws of the Company as in effect on
the date hereof and the Company’s Charter dated as of the
date hereof. Such documents will be in effect in such form on the
Closing Date.
3.2. The Company has or prior to the
Closing Date will have taken all corporate action required to
authorize the execution and delivery of this Agreement and the
issuance of the Subscription Securities.
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3.3. The Subscription Securities,
when issued and upon payment of the purchase price therefor, will
be duly authorized, validly issued, fully paid and
non-assessable.
3.4. Each of the Stock Purchase
Agreement, the Stockholders Agreement and this Agreement is, or at
or prior to the Closing will be, a legal, valid and binding
obligation of the Company and the other parties thereto,
enforceable in accordance with its respective terms.
3.5. Upon the effective time of the
Acquisition, and after consummation of the other transactions
contemplated by the Stock Purchase Agreement, the shares of stock
and other equity interests of the Company will be owned,
beneficially and of record, by the Persons and in the amounts set
forth in Schedule 2 hereto.
4. Representations and Warranties
of the Subscribers . Each Subscriber individually (but not on
behalf of any other Subscriber) represents and warrants
that:
4.1. Such Subscriber has full legal
capacity, power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. This Agreement has been
duly executed and delivered by such Subscriber and is the legal,
valid and binding obligation of such Subscriber, enforceable
against it in accordance with the terms hereof.
4.2. Such Subscriber has been
advised that the Subscription Securities have not been registered
under the Securities Act or any state securities laws and,
therefore, cannot be resold unless they are registered under the
Securities Act and applicable state securities laws or unless an
exemption from such registration requirements is available. Such
Subscriber is aware that the Company is under no obligation to
effect any such registration with respect to the Subscription
Securities (except solely to the extent, if any, provided in the
Stockholders Agreement) or to file for or comply with any exemption
from registration. Such Subscriber is purchasing the Subscription
Securities to be acquired by such Subscriber hereunder for its own
account and not with a view to, or for resale in connection with,
the distribution thereof in violation of the Securities Act. Such
Subscriber has such knowledge and experience in financial and
business matters that such Subscriber is capable of evaluating the
merits and risks of such investment, is able to incur a complete
loss of such investment and is able to bear the economic risk of
such investment for an indefinite period of time. Such Subscriber
is an “accredited investor”, as that term is defined in
Regulation D under the Securities Act.
5. Conditions to Purchase of
Subscription Securities .
5.1. The Company’s obligation
to issue and sell the Subscription Securities shall be subject to
the satisfaction of the following conditions:
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5.1.1. All representations and
warranties of each Subscriber contained in this Agreement shall be
true and correct as of the Closing, and consummation of the
subscriptions contemplated hereby shall constitute a reaffirmation
by each Subscriber that all representations and warranties of such
Subscriber contained in this Agreement are true and correct as of
the Closing.
5.1.2. On the Closing Date,
substantially contemporaneously with the issuance and sale of the
Subscription Securities hereunder, all conditions to the
Company’s obligation to close under the Stock Purchase
Agreement shall have been satisfied or waived by the
Company.
5.1.3. On or before the Closing
Date, substantially contemporaneously with the issuance and sale of
the Subscription Securities hereunder, each Subscriber shall have
duly executed and delivered to the Company a counterpart of the
Stockholders Agreement and such other documents as the Company may
reasonably request in connection with the transactions contemplated
hereby.
5.2. Each Subscriber’s
obligation to purchase and pay for the Subscription Securities
shall be subject to the satisfaction of the following
conditions:
5.2.1. All representations and
warranties of the Company contained in this Agreement shall be true
and correct as of the Closing, and consummation of the Closing
shall constitute a reaffirmation by the Company that all the
representations and warranties of the Company contained in this
Agreement are true and correct as of th
