▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
This Investors Subscription Agreement (the "Agreement") is entered into
as of February 5, 1999, by and between ▇▇▇▇▇▇ PRODUCTS CORP., a Massachusetts
corporation (the "Company") and each of the investors listed on Exhibit A
attached hereto (individually, an "Investor" and collectively, the "Investors").
WHEREAS, the Investors wish to purchase from the Company and the
Company wishes to issue and sell to such Investors, shares of the Company's
capital stock, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the parties to this Agreement, intending to be legally bound,
mutually agree as follows:
ARTICLE I
Purchase and Sale of Shares
1.1 Sale and Issuance of Shares. Subject to the terms and conditions of
this Agreement, each Investor hereby subscribes for and agrees to purchase at
the Closing (as herein defined), and the Company does hereby agree to sell to
each Investor at the Closing, the aggregate number of shares of the Company's
Common Stock ("Common Stock") set forth opposite each Investor's name on Exhibit
A (the "Shares") at a purchase price of $5.03918 per share of Common Stock for
the total consideration set forth opposite its name in Exhibit A. Each Investor
hereby acknowledges that the number of Shares set forth opposite its name on
Exhibit A constitutes the full, entire and correct number of Shares to be
purchased by it pursuant to this Agreement for the amount of consideration set
forth next to the name of such Investor in Exhibit A.
1.2 Delivery of Purchase Price. In consideration of and in exchange for
the Shares to be purchased hereunder, each Investor shall deliver to the
Company, on the Closing Date (as hereinafter defined), the aggregate purchase
price set forth opposite its name on Exhibit A (the "Purchase Price"), payable
by wire transfer of immediately available funds.
1.3 Closing. The closing of the purchase and sale of the Shares (the
"Closing") shall occur at 9:00 A.M., Boston time, on February 5, 1999, at the
offices of Posternak, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P., Boston, Massachusetts, or at
such other time and place as the Company and the
1
Investors may agree (the "Closing Date"). In consideration of the purchase by
each Investor of the Shares and the payment of the Purchase Price therefor, the
Company shall deliver to each Investor at the Closing a certificate or
certificates evidencing the number of Shares purchased by each Investor, as set
forth on Exhibit A.
ARTICLE II
Representations and Warranties of the Company
The Company represents and warrants to each Investor that:
2.1 Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and has all requisite corporate power and
authority to carry on its business as now conducted and as proposed to be
conducted.
2.2 Capitalization. The authorized capital of the Company consists of
(or will consist of at the Closing) 25,000,000 shares of Common Stock, $.001 par
value per share, of which 20,747,663 shares will be outstanding after giving
effect to the transactions contemplated hereby. There are no commitments for the
purchase or sale of, and no options, warrants or other rights to subscribe for
or purchase, any shares of capital stock of the Company, except as set forth on
Schedule 2.2. All of such outstanding shares of Common Stock have been duly
authorized and are or at the Closing shall be validly issued and outstanding,
and fully-paid and non-assessable.
2.3 Authorization. All corporate action on the part of the Company
necessary for the authorization, execution, delivery and performance of this
Agreement by the Company and for the authorization, issuance and delivery of the
Shares being sold under this Agreement, has been taken. This Agreement, when
executed and delivered by all parties hereto, shall constitute the valid and
legally binding obligation of the Company and shall be enforceable against the
Company in accordance with its terms, except to the extent enforceability may be
limited by bankruptcy laws, insolvency laws, reorganization laws, moratorium
laws or other laws affecting creditors' rights generally and except to the
extent enforceability may be limited by general equitable principles.
2.4 Validity of Shares. The Shares, when issued, sold and delivered in
accordance with the terms of this Agreement, shall be duly and validly issued,
fully paid and non-assessable and will not be subject to any pre-emptive or
similar rights, voting agreements or any rights of first refusal or other
similar rights in favor of any person or entity, except such rights as will have
been waived or terminated at or prior to the Closing.
2.5 Securities Act. The sale of Shares in accordance with the terms of
this Agreement (assuming the accuracy of the representations and warranties of
the Investors contained in Article III hereof) is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "1933 Act") and
applicable state securities laws.
2
2.6 Private Placement Memorandum. The Confidential Offering Memorandum
dated as of January 29, 1999, prepared by the Company in connection with the
sale of 9 7/8% Senior Subordinated Notes of the Company does not contain any
untrue statement of a material fact, or omit to state any material facts,
necessary to make the statements contained therein not misleading.
ARTICLE III
Representations, Warranties and
Agreements of the Investors
Each Investor represents and warrants, in each instance as to itself
only and not as to any other Investor, to the Company that:
3.1 Authorization. The execution and delivery by such Investor and the
consummation by such Investor of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of such Investor.
3.2 Enforceability. This Agreement, when executed and delivered by all
parties hereto, will constitute the valid and legally binding obligation of such
Investor, enforceable against such Investor in accordance with its terms, except
to the extent enforceability may be limited by bankruptcy laws, insolvency laws,
reorganization laws, moratorium laws or other laws affecting creditors' rights
generally and except to the extent enforceability may be limited by general
equitable principles.
3.3 Investment Representations.
(a) This Agreement is made in reliance upon such Investor's
representations to the Company, which by execution hereof each Investor hereby
confirms, that: (i) the Shares will be acquired by such Investor for investment
only, for its own account and not as a nominee or agent and not with a view to
the sale or distribution of any part thereof in violation of applicable federal
and state securities laws; and (ii) such Investor has no current intention of
selling, granting participation in or otherwise distributing the Shares in
violation of applicable federal and state securities laws. By executing this
Agreement, such Investor further represents that it does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person, or to any third person, with respect to any of the
Shares in violation of applicable federal and state securities laws.
(b) Such Investor understands that the Shares have not been
registered under the 1933 Act on the basis that the sale provided for in this
Agreement and the issuance of securities hereunder are exempt from registration
under the 1933 Act pursuant to Section 4(2) thereof and regulations issued
thereunder, and that the Company's reliance on such exemption is predicated on
the representations and warranties of each Investor set forth herein.
3
(c) Such Investor represents that it has, either alone or
together with the assistance of a "purchaser representative" (as that term is
defined in Regulation D promulgated under the 1933 Act), such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Company. Such Investor further
represents that it is familiar with the business and financial condition,
properties, operations and prospects of the Company and that it has had access,
during the course of the transactions contemplated hereby and prior to its
purchase of Shares, to the same kind of information that is specified in Part I
of a registration statement under the 1933 Act, and that it has had the
opportunity to ask questions of, and receive answers from, the Company
concerning the terms and conditions of the investment and to obtain additional
information (to the extent the Company possessed such information or could
acquire it without unreasonable effort or expense) necessary to verify the
accuracy of any information furnished to such Investor or to which such Investor
has had access. Such Investor has made, either alone or together with its
advisors, such independent investigation of the Company as each Investor deems
to be, or its advisors deem to be, necessary or advisable in connection with
this investment. Such Investor understands that no federal or state agency has
passed upon this investment or upon the Company, nor has any such agency made
any finding or determination as to the fairness of this investment.
(d) Such Investor represents that it will not sell, transfer
or otherwise dispose of the Shares without registration under the 1933 Act and
applicable state securities laws, or an exemption therefrom. Such Investor
understands that, in the absence of an effective registration statement covering
the Shares or an available exemption from registration under the 1933 Act and
applicable state securities laws, the Shares must be held indefinitely. In
particular, such Investor acknowledges that it is aware that the Shares may not
be sold pursuant to Rule 144 promulgated under the 1933 Act unless all of the
conditions of such rule are met. Among the current conditions for use of Rule
144 by certain holders is the availability to the public of current information
about the Company. In the event that at some time in the future the Company
shall cease to be subject to the informational and reporting requirements of the
Securities Exchange Act of 1934, as amended, such Investor acknowledges that
such information will not be available. Such Investor represents that, in the
absence of an effective registration statement covering the Shares, it will
sell, transfer or otherwise dispose of the Shares only in a manner consistent
with its representations set forth herein and then only in accordance with the
Shareholders' Agreement referred to in Section 6.1.
(e) Such Investor represents that it (i) is capable of bearing
the economic risk of holding the unregistered Shares for an indefinite period of
time and has adequate means for providing for its current needs and
contingencies, (ii) can afford to suffer a complete loss of this investment and
(iii) understands all risk factors related to the purchase of the Shares.
(f) Such Investor understands that the purchase of the Shares
involves a high degree of risk, that there is no established market for the
Shares and that it is not likely that any public market for the Shares will
develop in the near future.
4
(g) Such Investor represents that neither it nor anyone acting
on its behalf has paid any commission or other remuneration to any person in
connection with the purchase of the Shares.
(h) Independent of the additional restrictions on the transfer
of the shares of Common Stock contained in the Shareholders' Agreement referred
to in Section 6.1, such Investor agrees that it will not transfer, dispose of or
pledge any of the Shares other than pursuant to an effective registration
statement under the 1933 Act and applicable state securities laws, unless and
until (i) such Investor shall have notified the Company of the proposed
transfer, disposition or pledge and shall have furnished the Company with a
statement of the circumstances surrounding the proposed transfer, disposition or
pledge and (ii) if requested by the Company and at the expense of each Investor
or its transferee, such Investor shall have furnished to the Company an opinion
of counsel reasonably satisfactory (as to counsel and as to substance) to the
Company and its counsel that such proposed transfer, disposition or pledge may
be made without registration of such Shares under the 1933 Act and applicable
state securities laws.
3.4 Legends; Stop Transfer.
(a) Each Investor acknowledges that all certificates
evidencing the Shares shall bear the following legend:
"TRANSFER RESTRICTED
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be sold, offered for sale, pledged or hypothecated in
the absence of an effective registration statement as to the
securities under said Act, or unless and until (i) the
transferor shall have notified the Company of the proposed
transfer, disposition or pledge and shall have furnished the
Company with a statement of the circumstances surrounding the
proposed transfer, disposition or pledge and (ii) if requested
by the Company and at the expense of each transferor or its
transferee, such transferor shall have furnished to the
Company an opinion of counsel reasonably satisfactory (as to
counsel and as to substance) to the Company and its counsel
that such proposed transfer, disposition or pledge may be made
without registration of such Shares under the 1933 Act and
applicable state securities laws.
The securities represented by this certificate are subject to
the terms and conditions, including certain restrictions on
transfer, of a Shareholders' Agreement, dated as of November
26, 1997, as amended from time to time, and none of such
securities, or any interest therein, shall be transferred,
pledged, encumbered or otherwise disposed of except as
provided in that Agreement. A copy of the Shareholders'
Agreement, as amended, is on file with the Clerk of the
Company and will be mailed to any properly interested person
without charge within five (5) days after receipt of a written
request."
5
(b) The certificates evidencing the Shares shall also bear any
legend required by any applicable state securities law.
(c) In addition, the Company shall make a notation regarding
the restrictions on transfer of the Shares in its stock books, and the
Shares shall be transferred on the books of the Company only if
transferred or sold pursuant to an effective registration statement
under the 1933 Act and applicable state securities laws covering such
Shares or pursuant to and in compliance with the provisions of Section
3.3(i) hereof. A copy of this Agreement, together with any amendments
thereto, shall remain on file with the Clerk of the Company and shall
be available for inspection to any properly interested person without
charge within five (5) days after the Company's receipt of a written
request therefor.
3.5 Brokers. No broker, investment banker, financial advisor or other
person or entity is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of any Investor
or any of its affiliates.
ARTICLE IV
Conditions to Obligations of the Investors at Closing
The obligations of each Investor under Article I of this Agreement are
subject to the fulfillment on or before the Closing Date of each of the
following conditions:
4.1 Representations and Warranties. The representations, warranties and
agreements of the Company contained in Article II hereof shall be true on and as
of the Closing Date with the same force and effect as if they had been made on
the Closing Date.
4.2 Performance by the Company. The Company shall have performed in all
material respects all of its obligations and shall have materially complied with
each and all of its covenants required to be performed or complied with by it on
or before the Closing Date.
4.3 Qualifications. All authorizations, approvals or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall have been duly obtained and shall be
effective on and as of the Closing Date.
6
4.4 Legal Opinion. Each Investor shall have received a legal opinion
from Posternak, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P, the Company's counsel in form and
substance satisfactory to counsel for the Investors.
ARTICLE V
Conditions to the Obligations of the Company at Closing
The obligations of the Company under Article I of this Agreement are
subject to the fulfillment on or before the Closing Date of each of the
following conditions:
5.1 Representations. The representations, warranties and agreements of
the Investors contained in Article III hereof shall be true on and as of the
Closing Date with the same force and effect as if they had been made on the
Closing Date.
5.2. Performance. Each Investor shall have performed in all material
respects all of its obligations and shall have materially complied with each and
all of its covenants required to be performed or complied with by it on or
before the Closing Date, including without limitation the execution and delivery
of any agreements and undertakings provided for in this Agreement.
5.3 Qualifications. All authorizations, approvals or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall have been duly obtained and shall be
effective on and as of the Closing Date.
ARTICLE VI
Mutual Conditions Precedent
The obligations of the Company and of each Investor under Article I of
this Agreement are subject to the fulfillment on or before the Closing Date of
the following conditions:
6.1 Shareholders' Agreement. The Company and each of the Investors
identified in Exhibit A shall, unless already a party thereto, have executed and
delivered a counterpart signature page to the Shareholders' Agreement, dated as
of November 26, 1997, by and among the Company and the Shareholders (as defined
therein), as amended to date and by Amendment No. 1 thereto substantially in the
form attached as Exhibit B hereto (the "Shareholders' Agreement").
7
6.2 Simultaneous Purchase. Each Investor listed on Exhibit A hereto
shall have simultaneously purchased at the Closing the number of Shares set
forth opposite each Investor's name for the consideration specified.
6.3 Simultaneous Close. The Company shall have consummated its offer to
purchase shares of common stock of The Rival Company ("Rival") pursuant to the
terms of the Offer to Purchase, dated as of December 23, 1998, as amended in
accordance with its terms (the "Offer"), substantially simultaneously with the
Closing contemplated hereby.
ARTICLE VII
Other Agreements of the Parties
7.1 Berkshire Partners. The parties hereto acknowledge and agree that,
as compensation for consulting and advisory services in connection with the
Company's acquisition of Rival, the Company shall pay to Berkshire Partners, LLC
("Berkshire") a structuring fee of $2,000,000 on the Closing Date, and the
annual management fee payable to Berkshire shall be increased from $400,000 to
$500,000.
7.2 Costs, Expenses and Taxes. The Company shall pay the Company's and
each Investor's reasonable legal expenses incurred in connection with this
Agreement, any amendment or supplement to or modification hereto, and any and
all other documents furnished pursuant hereto or thereto or in connection
herewith. The Company shall pay any and all stamp, transfer and other similar
taxes payable or determined to be payable in connection with the execution and
delivery of this Agreement or the original issuance of the Shares but excluding
all federal, state and local income or similar taxes and shall save and hold
each Investor harmless from and against any and all liabilities with respect to
or resulting from any delay in paying, or omission to pay, such taxes. The
Company shall bear all expenses of shipping certificates evidencing the Shares
(including, without limitation, insurance expenses) from the location of the
Closing to such other places within the United States of America as the Investor
shall specify.
ARTICLE VIII
Miscellaneous
8.1 Termination. This Agreement may be terminated (as to the party
electing so to terminate it) at any time prior to the Closing Date:
(a) by an Investor if any of the conditions specified in
Article IV or VI of this Agreement have not been met or waived by it
pursuant to the terms of this Agreement by the Closing Date, or at such
earlier date that it becomes apparent that any such condition can no
longer be satisfied; or
8
(b) by the Company if any of the conditions specified in
Article V or VI of this Agreement have not been met or waived by it
pursuant to the terms of this Agreement by the Closing Date or at such
earlier date that it becomes apparent that any such condition can no
longer be satisfied.
8.2 No Waiver; Modifications in Writing. No failure or delay on the
part of the Company or the Investors in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Company or each Investor at law or in
equity or otherwise. No waiver of or consent to any departure by the Company
from any provision of this Agreement shall be effective unless signed in writing
by the party entitled to the benefit thereof, provided that notice of any such
waiver shall be given to each party hereto as set forth below. This Agreement,
together with the Exhibits hereto, sets forth the entire understanding of the
parties and supersedes all prior agreements, arrangements and communications,
whether oral or written, with respect to the subject matter hereof. Except as
otherwise provided herein, no amendment, modification or termination of any
provision of this Agreement shall be effective unless signed in writing by or on
behalf of the Company and each Investor. Any amendment, supplement or
modification of or to any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any departure by the Company
from the terms of any provision of this Agreement, shall be effective only in
the specific instance and for the specific purpose for which made or given.
Except where notice is specifically required by this Agreement, no notice to or
by or demand to or on the Company in any case shall entitle or obligate the
Company to any other or further notice or demand in similar or other
circumstances.
8.3 Notices. All notices and other communications necessary or
contemplated under this Agreement shall be in writing and shall be delivered in
the manner specified herein. All notices shall be deemed to have been duly given
upon confirmation by telecopy if delivered by telecopy or by hand, or one day
after sending by overnight delivery service, or five days after sending by
certified mail, postage prepaid, return receipt requested to the respective
addresses of the parties set forth below:
(a) for notices and communications to the Company:
▇▇▇▇▇▇ Products Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
9
with a copy to:
Posternak, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
(b) for notices and communications to each Investor, to its
address as set forth under each Investor's name in Exhibit A.
By notice complying with the foregoing provisions of this Section 7.3, each
party shall have the right to change the notice address for future notices and
communications to such party.
8.4 Execution of Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which, taken together, shall constitute but one and the same
Agreement.
8.5 Binding Effect; Assignment. The rights and obligations of any or
all of the Investors under this Agreement may not be assigned to any other
person. Except as expressly provided in this Agreement, this Agreement shall not
be construed so as to confer any right or benefit upon any person other than the
parties to this Agreement, and their respective successors and assigns. This
Agreement shall be binding upon the Company and each of the Investors, and their
respective successors and assigns.
8.6 WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND THE INVESTORS HEREBY
EXPRESSLY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SHARES OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE COMPANY AND
THE INVESTORS ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH
MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF ANY PARTY. THE SCOPE OF THIS WAIVER
IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS. THE COMPANY AND THE INVESTORS FURTHER
WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL,
AND THAT EACH VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL. THIS WAVIER IS IRREVOCABLE AND MAY ONLY BE MODIFIED EITHER
ORALLY OR IN AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT, ANY OTHER PURCHASE DOCUMENT OR THE SHARES. IN THE EVENT
10
OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
(WITHOUT A JURY) BY THE COURT.
8.7 GOVERNING LAW. THIS AGREEMENT, INCLUDING THE VALIDITY HEREOF AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN SUCH STATE (WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF). EACH OF THE PARTIES
HERETO AGREES THAT ANY ACTION OR PROCEEDING BROUGHT TO ENFORCE THE RIGHTS OR
OBLIGATIONS OF ANY PARTY HERETO UNDER THIS AGREEMENT MAY BE COMMENCED AND
MAINTAINED IN ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE COMMONWEALTH OF
MASSACHUSETTS. EACH OF THE PARTIES HERETO FURTHER AGREES THAT PROCESS MAY BE
SERVED UPON IT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED AS MORE
GENERALLY PROVIDED IN SECTION 8.3 HEREOF, AND CONSENTS TO THE EXERCISE OF
JURISDICTION OVER IT AND ITS PROPERTIES WITH RESPECT TO ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THE ENFORCEMENT OF ANY RIGHTS UNDER THIS
AGREEMENT.
8.8 Severability of Provisions. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
8.9 Exhibits and Headings. The Exhibit(s) to this Agreement shall be
deemed to be a part of this Agreement. The Article and Section headings used or
contained in this Agreement are for convenience of reference only and shall not
affect the construction of this Agreement.
8.10 Injunctive Relief. Each of the parties to this Agreement hereby
acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that, in the event of a
breach of any material provision of this Agreement, the aggrieved party may
elect to institute and prosecute proceedings to enforce specific performance or
to enjoin the continuing breach of such provision, as well as to obtain damages
for breach of this Agreement. By seeking or obtaining any such relief, the
aggrieved party will not be precluded from seeking or obtaining any other relief
to which it may be entitled.
8.11 Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
11
8.12 Survival of Agreements, Representations and Warranties. All
agreements, representations and warranties contained herein or made in writing
by or on behalf of the Company or each Investor, as the case may be, in
connection with the transactions contemplated by this Agreement shall survive
the execution and delivery of this Agreement and the sale and purchase of the
Shares of payment therefor.
* * * * * *
12
▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
▇▇▇▇▇▇ PRODUCTS CORP.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President-Finance
S-1
▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
INVESTORS:
Berkshire Fund IV Investment Corp.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
S-2
▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
INVESTORS:
Berkshire Fund V Investment Corp.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
S-3
▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
INVESTORS:
Berkshire Investors, LLC
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Managing Member
S-4
▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
INVESTORS:
/s/ Jordan ▇. ▇▇▇▇
--------------------------------
Jordan ▇. ▇▇▇▇
S-5
▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
INVESTORS:
/s/ ▇▇▇▇▇ ▇▇▇
--------------------------------
Woon Fai (▇▇▇▇▇) ▇▇▇
S-6
▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
INVESTORS:
Sunapee Securities, Inc.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Treasurer
S-7
▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
INVESTORS:
Squam Lake Investors, II, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Treasurer of
GPI, Inc., Its General Partner
S-8
▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
INVESTORS:
Squam Lake Investors, III, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Treasurer of
GPI, Inc. its General Partner
S-9
▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
INVESTORS:
FSC Corp.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
S-10
▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
INVESTORS:
The Pangea Group, Inc.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Vice President
S-11
▇▇▇▇▇▇ PRODUCTS CORP.
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
INVESTORS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
S-12
EXHIBIT A -- INVESTORS STOCK SUBSCRIPTION AGREEMENT
Number of Shares Purchased By Each Investor
-------------------------------------------
Number of Shares of Aggregate
Investor: Name and Address Common Stock Purchase Price
-------------------------- ------------ --------------
Berkshire Fund IV Investment Corp. 4,021,470 $20,264,925
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Berkshire Fund V Investment Corp. 4,021,470 20,264,925
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Berkshire Investors LLC 804,294 4,052,980
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Jordan ▇. ▇▇▇▇ 396,890 2,000,000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Woon Fai (▇▇▇▇▇) ▇▇▇ 19,844 100,000
c/o Holmes Products (Far East) Limited
▇▇. ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Sunapee Investors LLC 81,362 410,000
c/o Bain & Company, Inc.
Two ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Squam Lake Investors II LP 137,919 695,000
c/o Bain & Company, Inc.
Two ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Squam Lake Investors III LP 137,919 695,000
c/o Bain & Company, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FSC Corp. 198,445 1,000,000
BancBoston Capital Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Att: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Pangea Group, Inc. 2,630 13,252
International Trade and Consulting
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 100,000 503,918
c/o The Rival Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇
TOTALS: 9,922,243 $50,000,000
EXHIBIT B -- AMENDMENT TO SHAREHOLDERS AGREEMENT
Schedule 2.2
As of February 1, 1999, the following warrants, options, etc. were
outstanding:
(1) Asco Investments, Ltd. -- Warrant to purchase up to 500,317
shares of Common Stock.
(2) Employees of the Company -- Options or rights to purchase up
to 1,502,723 shares of Common Stock, 114,671 shares of which
are vested and exercisable.
(3) Commitments from the Investors to purchase the shares of
Common Stock set forth on Exhibit A above.