EXHIBIT 10.13
EXECUTION COPY
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of December 23, 2004
(this
"Agreement"), between the individual identified on the signature
page hereto
(the "Management 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 (as defined in the Purchase Agreement) (the
"Transaction"); and
WHEREAS, on the terms and subject to the conditions set
forth below,
the Management Investor desires to subscribe for and acquire from
the Company,
and the Company desires to issue and sell to the Management
Investor, shares of
common stock, par value $0.01 per share (the "Common Stock"), of
the Company as
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.
"Bonus Payments" means, to the extent applicable to the
Management
Investor, payments made by Cooper pursuant to the (i) Cooper
Tire & Rubber
Company Return On Assets Managed Bonus Program, (ii) Letter
agreement
regarding stay bonus, dated as of March 10, 2004, from
Cooper-Standard
Automotive Inc. to the Management Investor and (iii) Cooper
Tire & Rubber
Company Automotive Group Sale Incentive Plan and accompanying
letter
agreement, dated as of May 13, 2004, to the Management
Investor.
"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.
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"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.
"Cooper" 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.
"Management Investor" has the meaning set forth in the
preamble
hereto.
"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 Management
Investor hereby subscribes for and agrees to purchase, and the
Company hereby
agrees to issue and sell to the Management Investor, on each
Closing Date such
number of shares of Common Stock ("Shares") having an aggregate
purchase price
equal to the applicable Bonus Payment received by the Management
Investor (the
"Purchase Price") to which the Closing on such Closing Date
relates, subject to
the last sentence of this Section 2. For purposes of this
Agreement, the price
per share of Common Stock shall be $100, subject to adjustment in
respect
thereof for any stock
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dividends, combinations, splits or the like subsequent to the date
hereof and
prior to the applicable Closing. The maximum aggregate number of
Shares (subject
to adjustment contemplated by the previous sentence) to be issued
to the
Management Investor pursuant to this Agreement is the number of
Shares set forth
opposite the name of the Management Investor on Exhibit C hereto at
a Purchase
Price of $100 per share (subject to adjustment contemplated by the
previous
sentence).
3. The Closing. The closing (the "Closing") of the
issuance and sale
of Shares referred to in Section 2 shall be on the day (the
"Closing Date") that
is twenty (20) days after receipt by the Management Investor of a
Bonus Payment.
If the Management Investor receives multiple Bonus Payments at
different times,
there shall be successive Closings, on and subject to the terms
hereof until the
maximum aggregate purchase price has been paid. Each Closing shall
occur at the
main offices of the Company unless an alternative location is
mutually agreed
upon. At a Closing, the following shall occur:
(a) the Management 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 delivery of a certified check
payable to the
Company as consideration for the Shares to be issued
hereunder; and
(b) the Company shall duly issue the Shares to be
received by the
Management Investor and shall deliver to the Management
Investor stock
certificates representing the Shares purchased by the
Management Investor.
4. Stockholders Agreement and Registration Rights
Agreement. On the
date of consummation of the Transaction pursuant to the Purchase
Agreement, the
Management Investor 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 the Management 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 Management 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;
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(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 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 Management
Investor. The
Management Investor represents and warrants to the Company as
follows:
(a) (i)(x) the Management Investor is over 21 years of
age, (y) the
address set forth in Section 10(a)(2) hereof is the true and
correct
address and residence of the Management Investor, and (z) the
Management
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 Management
Investor and is
valid, binding and enforceable against the Management Investor
in
accordance with its terms;
(b) the execution, delivery and performance by the
Management 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 Management
Investor is a
party or by which the Management Investor is bound, (ii)
violate any United
States federal or state law, rule or regulation applicable to
the
Management 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 Management 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 Management Investor has been advised by the
Company that:
(i) the offer and sale of the Shares have not been
registered
under the Securities Act;
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(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 m
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