EXHIBIT 10.19
EXECUTION COPY
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of December 23, 2004
(this
"Agreement"), between S.A. Johnson (the "Director Investor") 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,
the Director Investor desires to subscribe for and acquire from the
Company, and
the Company desires to issue and sell to the Director Investor, 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.
"Common Stock" has the meaning set forth in the preamble
hereto.
"Company" has the meaning set forth in the preamble
hereto.
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"Cooper" has the meaning assigned to such term in the
preamble hereto.
"Director Investor" 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.
"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.
"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,
the Director
Investor hereby subscribes for and agrees to purchase, and the
Company hereby
agrees to issue and sell to the Director Investor, (a) on the date
of
consummation of the Transaction, 2,000 shares of Common Stock and
(b) at the
Director Investor's option, within 90 days following the date of
consummation of
the Transaction, up to an additional 3,000 shares of Common Stock
(the
"Shares"), in each case at a purchase price per share equal to $100
per share
(the "Purchase Price"). For purposes of this Agreement, the
purchase price per
share shall be subject to adjustment for any stock dividends,
combinations,
splits or the like subsequent to the date hereof and prior to the
Closing.
3. The Closing. The closing (the "Closing") of the
issuance and sale
of the Shares referred to in (i) clause 2(a) shall be the date of
consummation
of the Transaction and (ii) clause 2(b) shall take place on a
mutually agreed
upon date (the "Closing Date ") within 90 days following the date
of
consummation of the Transaction pursuant to the Purchase Agreement.
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The Closing shall occur at the main offices of the Company unless
an alternative
location is mutually agreed upon. At the Closing, the following
shall occur:
(a) the Director Investor shall deliver to the Company
the Purchase
Price payable by delivery to the Company of such amount by
wire transfer of
immediately available funds or a certified check payable to
the Company as
consideration for the Shares to be issued hereunder; provided,
that in the
case of Shares referred to in clause 2(a), the Director
Investor may elect
to receive such Shares in lieu of payment in cash of the
$200,000 fee
payable to the Director Investor in connection with the
Transaction; and
(b) the Company shall duly issue the Shares to be
received by the
Director Investor and shall deliver to the Director Investor
stock
certificates representing the Shares purchased by the Director
Investor.
4. Stockholders Agreement and Registration Rights
Agreement. On the
first Closing Date, the Director Investor shall execute and deliver
the
Stockholders Agreement and the related Registration Rights
Agreement. The Shares
will be issued subject to the rights and restrictions set forth in
such
agreements.
5. Representations and Warranties of the Company. The
Company
represents and warrants to the Director Investor 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 the Director Investor
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
subject to any preemptive rights and restrictions on transfer
other than
under applicable securities laws, the terms of this Agreement
or 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, (iii) 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
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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 the Director
Investor. The
Director Investor represents and warrants to the Company as
follows:
(a) (i)(x) the Director Investor is over 21 years of age,
(y) the
address set forth in Section 9(a)(2) hereof is the true and
correct address
and residence of the Director Investor, and (z) the Director
Investor has
no current intention of becoming a resident of any other state
or
jurisdiction in the foreseeable future and (ii) this Agreement
has been,
duly authorized, executed and delivered by the Director
Investor and is
valid, binding and enforceable against the Director Investor
in accordance
with its terms;
(b) the execution, delivery and performance by the
Director Investor
of this Agreement will not (i) 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 Director
Investor is a party
or by which the Director Investor is bound, (ii) violate any
United States
federal or state law, rule or regulation applicable to the
Director
Investor or (iii) except as set forth on Schedule 6(b),
require any
consent, waiver, approval, order, permit or authorization of,
or
declaration or filing with, or notification or report to, any
Governmental
Body;
(c) the Director Investor is acquiring the Shares for
investment
solely for investment for its own account and not with a view
to, or for
sale in connection with, the distribution or other disposition
thereof;
(d) the Director Investor 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
Shares in the foreseeable future;
(iii) Rule 144 promulgated under the Securities Act
is not
presently available with respect to the sale of
any
securities of the Company;
(iv) when and if shares of the Shares may be
disposed of without
registration under the Securities Act in
reliance on Rule
144, such disposition can be made only in
limited amounts in
accordance with the terms and conditions of
Rule 144;
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