EXHIBIT 4.6
Published on June 22, 2000
Exhibit 4.6
SUBSCRIPTION AGREEMENT (this "AGREEMENT"), dated as of July 13,
1999 (this "AGREEMENT"), by and among PACIFIC CIRCUITS, INC., a Washington
corporation (the "COMPANY") and those purchasers of the Company's common stock
listed on Schedule I attached hereto (individually a "PURCHASER" and
collectively, the "PURCHASERS").
W I T N E S S E T H:
-------------------
WHEREAS, each Purchaser wishes to subscribe for and purchase from
the Company, and the Company wishes to issue and sell to the Purchaser, such
number of shares of common stock, no par value per share, of the Company
("COMMON STOCK") set forth opposite such Purchaser's name on Schedule I attached
hereto, upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
PURCHASE AND SALE OF COMMON STOCK
SECTION 1.01. SUBSCRIPTION FOR SHARES. Upon the terms and subject
to the conditions of this Agreement, the Purchasers, in respective amounts set
forth on Schedule I hereto, agree to purchase at the Closing (as defined below)
and the Company agrees to sell and issue to the Purchasers, in respective
amounts set forth on Schedule I hereto, at the Closing an aggregate of 5,625
shares of Common Stock, at a purchase price of $1,000 per share (the "PER SHARE
PURCHASE PRICE") for an aggregate purchase price of $5,625,000. The shares of
Common Stock issued to the Purchasers pursuant to this Agreement shall be
hereinafter referred to as the "SHARES."
SECTION 1.02. CLOSING. The purchase and sale of the Shares shall
take place at the closing (the "Closing") at the offices of Gibson Dunn &
Crutcher LLP, 333 South Grand Avenue, Los Angeles, California. The Closing
shall take place at 9:00 a.m. on July 13, 1999 or at such other time and place
as the Company and a majority in interest of the Purchasers shall agree upon,
orally or in writing. The date of the Closing is hereafter referred to as the
"Closing Date." At the Closing, the Company shall deliver to the Purchasers
certificates representing the Shares against payment of the purchase price
therefor, by wire transfer to the Company's bank account.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS
As an inducement to the Company to enter into this Agreement, each
Purchaser, severally as to himself or itself, and not jointly, hereby represents
and warrants to the Company as follows:
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SECTION 2.01 CAPACITY. Such Purchaser has the legal capacity to
enter into this Agreement and to consummate the transactions contemplated
hereby.
SECTION 2.02. ENFORCEABILITY OF AGREEMENT. This Agreement has been
duly authorized, executed and delivered by such Purchaser, and (assuming due
authorization, execution and delivery by the Company) this Agreement constitutes
a legal, valid and binding obligation of such Purchaser enforceable against such
Purchaser in accordance with its terms, except for (a) the effect thereon of
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting to or affecting the rights of creditors generally and
(b) limitations imposed by equitable principles upon the specific enforceability
of any of the remedies, covenants or other provisions thereof and upon the
availability of injunctive relief or other equitable remedies.
SECTION 2.03. PRIVATE PLACEMENT. Such Purchaser understands and
acknowledges that:
(a) The Shares to be issued to such Purchaser pursuant to this
Agreement have not been, and will not be, registered under the U.S.
Securities Act of 1933, as amended (the "SECURITIES ACT"), and that the
Shares will be issued to such Purchaser in a transaction that is exempt
from the registration requirements of the Securities Act. Such Purchaser
understands and acknowledges that such Shares cannot be offered or resold
except pursuant to registration under the Securities Act or an available
exemption from registration and such Purchaser agrees that such Purchaser
shall not resell such Shares except in compliance with applicable
securities laws. Such Purchaser acknowledges and agrees that the Shares
are "restricted securities" as defined in the Securities Act and must be
held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available.
(b) Such Purchaser is purchasing the Shares for such
Purchaser's own account for investment and not with a view to, or for
resale in connection with, the distribution hereof, and Purchaser has no
present intention of distributing any thereof, except in accordance with
the terms of this Agreement. Purchaser understands that the Shares have
not been registered under the Securities Act by reason of a specific
exemption from the registration provisions of the Securities Act which
may depend upon, among other things, the bona fide nature of Purchaser's
investment intent as expressed herein.
(c) Such Purchaser has such knowledge and experience in
financial and business matters that he or it is capable of evaluating the
merits and risks of his or its investment in the Shares pursuant to this
Agreement and protecting Purchaser's own interests in connection with
this transaction.
(d) Such Purchaser has the financial ability to bear the
economic risk of Purchaser's investment in the Shares pursuant to this
Agreement, Purchaser is aware that Purchaser may be required to bear the
economic risk of his or its investment in the Shares for an indefinite
period of time, Purchaser has no need for liquidity with respect to
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Purchaser's investment therein at this time, and Purchaser has adequate
means of providing for his or its current needs and personal
contingencies.
(e) Such Purchaser has had an opportunity to discuss the
Company's business, management and financial affairs with the Company's
management and, subject to the representations and warranties in Section
3.07, has had the opportunity to review financial and other information
related to the Company.
(f) Such Purchaser understands and acknowledges that all
certificates representing the Shares shall bear, in addition to any other
legends required under applicable securities laws, the following legends:
"The securities represented by this certificate have not
been registered under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and may not be transferred
except pursuant to registration under the Securities Act or
pursuant to an available exemption from registration."
(g) Such Purchaser is an "accredited investor", as such term is
defined in Rule 501(a) of Regulation D under the Securities Act.
(h) Such Purchaser understands and agrees that, simultaneously
upon execution of this Agreement, such Purchaser will become party to (i)
the Amended and Restated Shareholders' Agreement dated July 13, 1999
among the Company, Circuit Holdings, LLC, Lewis O. Coley, III and the
Purchasers (the "AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT") and (ii)
that certain Registration Rights Agreement dated July 13, 1999, among the
Company and such Purchasers.
(i) Such Purchaser understands and agrees that he, she or it
may not sell or dispose of any of the Shares other than (i) pursuant to
an effective registration statement, unless the sale or other disposition
is exempt from the registration requirements of the Securities Act and
applicable state securities laws, and (ii) in compliance with the Amended
and Restated Shareholders' Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
As an inducement to the Purchasers to enter into this Agreement,
the Company hereby represents and warrants to the Purchasers as follows:
SECTION 3.01 ORGANIZATION AND AUTHORITY OF THE COMPANY. The
Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Washington and has all necessary
corporate power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Company, the performance
by the Company of its obligations hereunder and the consummation by the
Company of the transactions
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contemplated hereby have been duly authorized by all requisite action on the
part of the Company.
SECTION 3.02. ENFORCEABILITY OF AGREEMENT. This Agreement has been
duly executed and delivered by the Company, and (assuming due authorization,
execution and delivery by the Purchaser) this Agreement constitutes a legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except for (a) the effect thereon of bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting to or affecting the rights of creditors generally and (b) limitations
imposed by equitable principles upon the specific enforceability of any of the
remedies, covenants or other provisions thereof and upon the availability of
injunctive relief or other equitable remedies.
SECTION 3.03. CAPITAL STOCK OF THE COMPANY. (a) The authorized
capital stock of the Company consists of, immediately prior to the Closing,
10,000,000 shares of Common Stock, no par value per share, 73,125 shares of
which are issued and outstanding. Warrants to purchase 2,019 shares of Common
Stock, at an exercise price of $.01 per share, will be issued and outstanding as
of July 13, 1999 (the "Warrants").
(b) The Company has reserved 4,125 shares of Common Stock for
issuance to directors, employees or consultants under the Company's Management
Stock Option Plan, as may be amended from time to time and 3,836.25 shares of
Common Stock are subject to outstanding stock options as of the date hereof (the
"Outstanding Options").
(c) Except for the Warrants and the Outstanding Options, there
are no options, warrants, rights (including conversion or preemptive rights) or
agreements, orally or in writing, for the purchase or acquisition from the
Company of any shares of its capital stock.
SECTION 3.04. SHARES. The Shares being issued to the Purchasers
hereunder, when issued, sold and delivered in accordance with the terms hereof
for the consideration expressed herein, will be duly authorized, validly issued,
fully paid and nonassessable. The Shares are not subject to any preemptive
rights, rights of first refusal, rights of first offer or other similar rights
that have not been properly waived or complied with.
SECTION 3.05. NO SOLICITATION. No form of general solicitation or
general advertising was used by the Company, or, to the knowledge of the
Company, any other person acting on its behalf, in respect of the Shares or in
connection with the offer and sale of the Shares.
SECTION 3.06. PER SHARE PURCHASE PRICE. The Per Share Purchase
Price to be paid by the Purchasers is equal to the lowest price per share paid
by Circuit Holdings, LLC, Thayer Equity Investors IV, L.P. ("THAYER IV"),
Brockway Moran & Partners Fund, L.P. ("BMP FUND") or their respective affiliates
(exclusive of borrowings to fund the purchase price for which assets of the
Company, Power Holdings, L.L.C. ("HOLDINGCO."), Power Acquisition Sub., Inc. or
Power Circuits, Inc. ("POWER") are pledged or which are guaranteed by any of
them) for shares of Common Stock each such entity holds as of the date hereof.
For the purpose of computing equity price per share, the amount paid by Thayer
IV and BMP Fund in connection
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with the acquisition by HoldingCo. of Power is deemed to be equity investment
of Thayer IV and BMP Fund in HoldingCo.
SECTION 3.07. FINANCIAL STATEMENTS. The audited financial
statements listed on Exhibit A hereof (the "FINANCIAL STATEMENTS"), copies which
have been provided to Purchasers, are complete and correct in all material
respects and have been prepared in accordance with generally accepted accounting
principles consistently applied. The Financial Statements fairly present the
consolidated financial condition, operating results and cash flows of the
Company as of the respective dates and for the respective periods indicated.
The Company does not have any other audited financial statements for any period
commencing on or before December 31, 1995.
SECTION 3.08. NO UNDISCLOSED LIABILITIES. Except as set forth
on Schedule 3.08 attached hereto, there are no debts, liabilities or
obligations, whether accrued or fixed ("LIABILITIES") of the Company, other than
Liabilities (a) reflected or reserved against on the Financial Statements and
(b) incurred since December 31, 1998 in the ordinary course of the business,
consistent with the past practice of the Company and which are not, individually
or in the aggregate, materially adverse to the Company.
SECTION 3.09. ABSENCE OF CERTAIN CHANGES, EVENTS AND CONDITIONS.
Except as set forth on Schedule 3.09 attached hereto, since December 31, 1998,
there have not been any changes, occurrences, series of events or circumstances
with respect to the Company which individually or in the aggregate had or could
reasonably be expected to have a Material Adverse Effect. For purposes of this
Agreement, "MATERIAL ADVERSE EFFECT" shall mean any circumstance, change, event
or series of events, transactions, loss, failure, effect or other occurrence
which is or could reasonably be expected to be materially adverse to the
business, operations, employee relationships, customer or supplier
relationships, properties (including intangible properties), condition
(financial or otherwise), assets, liabilities or earnings or results of
operations of the Company.
SECTION 3.10. HOLDINGCO. On July 13, 1999, after HoldingCo.
acquired Power, HoldingCo. was contributed by its owners to the Company in
exchange for [31,875] shares of the Common Stock of the Company. The Company
directly or indirectly owns 100 percent of the equity securities of Power.
SECTION 3.11. CONFIDENTIAL INFORMATION MEMORANDUM. The Company
has provided to the Purchasers (other than TCW/Crescent Mezzanine Partners II,
L.P. and affiliates thereof) a copy of a Confidential Information Memorandum
prepared and distributed by First Union in connection with First Union's
syndication efforts for $127,500,000 of Senior Secured Credit Facilities, dated
July 1999 (other than Sections I and X thereof, which contain administrative
documents and financial projections and assumptions).
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01. EXPENSES. All costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection
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with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such costs and expenses.
SECTION 4.02. NOTICES. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon receipt) upon
the Purchasers by delivery in person, by courier service, by cable, by
facsimile, by telegram, by telex or by registered or certified mail (postage
prepaid, return receipt requested) at the address set forth on the signature
page hereto, or, if to the Company, to Pacific Circuits, Inc., 17550 N.E.
67th Court, Redmond, WA 98052, Attention: Lindsay Burton, Chief Financial
Officer, with a copy to Shearman & Sterling, 555 California Street, San
Francisco, California 94104-1522, Attention: Christopher D. Dillon, Esq.
SECTION 4.03. HEADINGS. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 4.04. SEVERABILITY. If any term or other provision of
this Agreement is held to be unenforceable under applicable law, such provision
shall be excluded form this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
SECTION 4.05. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and undertakings, both written and oral,
between the Purchaser and the Company with respect to the subject matter hereof,
provided that the application of otherwise applicable laws relating to the
issuance and sale of securities is not affected by this Agreement.
SECTION 4.06. ASSIGNMENT. This Agreement may not be assigned by
operation of law or otherwise without the express written consent of the other
party hereto (which consent may be granted or withheld in the sole discretion of
such other party).
SECTION 4.07. NO THIRD PARTY BENEFICIARIES. This Agreement shall
be binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other Person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement. .
SECTION 4.08 AMENDMENT. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, the
Purchasers and the Company.
SECTION 4.09. GOVERNING LAW. Except to the extent federal law is
applicable, this Agreement shall be governed by, and construed in accordance
with, the laws of the State of Washington, applicable to contracts executed in
and to be performed entirely within that state.
SECTION 4.10. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed, by facsimile or otherwise, shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
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IN WITNESS WHEREOF, the undersigned or each of their duly
authorized officers or representatives have executed this Agreement as of the
date first written above.
"COMPANY"
PACIFIC CIRCUITS, INC.,
a Washington Corporation
By: /s/ Jeffrey W. Goettman
-----------------------------
Name: Jeffrey W. Goettman
Title: Vice President
"PURCHASER"
By: /s/ F.G. Lindsay Burton
-----------------------------
Name: F.G. Lindsay Burton
-----------------------------
Title: Chief Financial Officer
-----------------------------
Address: c/o Pacific Circuits, Inc.
17550 N.E. 67th Court
Redmond, WA 98052
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IN WITNESS WHEREOF, the undersigned or each of their duly
authorized officers or representatives have executed this Agreement as of the
date first written above.
"COMPANY"
PACIFIC CIRCUITS, INC.,
a Washington Corporation
By: /s/ Jeffrey W. Goettman
-----------------------------
Name: Jeffrey W. Goettman
Title: Vice President
"PURCHASER"
By: /s/ Michael S. Lambrakis
-----------------------------
Name: Michael S. Lambrakis
-----------------------------
Title:
-----------------------------
Address: 3201 Marna Avenue
Long Beach, CA 90808
8
IN WITNESS WHEREOF, the undersigned or each of their duly
authorized officers or representatives have executed this Agreement as of the
date first written above.
"COMPANY"
PACIFIC CIRCUITS, INC.,
a Washington Corporation
By: /s/ Jeffrey W. Goettman
-----------------------------
Name: Jeffrey W. Goettman
Title: Vice President
"PURCHASER"
By: /s/ Dr. Edward D. Woerz
-----------------------------
Name: Edward D. Woerz MD
-----------------------------
Title: Family Trust
-----------------------------
Address: 8 Possum Ridge Road
Rolling Hilles, CA 90274
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IN WITNESS WHEREOF, the undersigned or each of their duly
authorized officers or representatives have executed this Agreement as of the
date first written above.
"COMPANY"
PACIFIC CIRCUITS, INC.,
a Washington Corporation
By: /s/ Jeffrey W. Goettman
-----------------------------
Name: Jeffrey W. Goettman
Title: Vice President
"PURCHASER"
By: /s/ Dale Anderson
-----------------------------
Name: Dale Anderson
-----------------------------
Title:
-----------------------------
Address: 1736 Marlin Way
Newport Beach, CA 92660
10
IN WITNESS WHEREOF, the undersigned or each of their duly
authorized officers or representatives have executed this Agreement as of the
date first written above.
"COMPANY"
PACIFIC CIRCUITS, INC.,
a Washington Corporation
By: /s/ Jeffrey W. Goettman
-----------------------------
Name: Jeffrey W. Goettman
Title: Vice President
"PURCHASER"
By: /s/ James M. Eisenberg
-----------------------------
Name: James M. Eisenberg
-----------------------------
Title:
-----------------------------
Address: 1350 Galaxy Drive
Newport Beach CA 92660
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IN WITNESS WHEREOF, the undersigned or each of their duly
authorized officers or representatives have executed this Agreement as of the
date first written above.
"COMPANY"
PACIFIC CIRCUITS, INC.,
a Washington Corporation
By: /s/ Jeffrey W. Goettman
-----------------------------
Name: Jeffrey W. Goettman
Title: Vice President
"PURCHASER"
By: /s/ Kent Alder
--------------------------------------
Name: Kent Alder
--------------------------------------
Title: President and Chief Executive Officer
--------------------------------------
Address: c/o Pacific Circuits, Inc.
17550 N.E. 67th Court
Redmond, WA 98052
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IN WITNESS WHEREOF, the undersigned or each of their duly
authorized officers or representatives have executed this Agreement as of the
date first written above.
"COMPANY"
PACIFIC CIRCUITS, INC.,
a Washington Corporation
By: /s/ Jeffrey W. Goettman
----------------------------
Name: Jeffrey W. Goettman
Title: Vice President
"PURCHASER"
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.
TCW/CRESCENT MEZZANINE TRUST II
By: TCW/Crescent Mezzanine II, L.P.,
as general partner or managing owner
By: TCW/Crescent Mezzanine, L.L.C.,
its general partner
By: /s/ Jean-Marc Chapus
------------------------------
Name: Jean-Marc Chapus
Title: President
Address:
c/o TCW/Crescent Mezzanine, L.L.C.
200 Crescent Court, Suite 1600
Dallas, TX 75201
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IN WITNESS WHEREOF, the undersigned or each of their duly
authorized officers or representatives have executed this Agreement as of the
date first written above.
"COMPANY"
PACIFIC CIRCUITS, INC.,
a Washington Corporation
By: /s/ Jeffrey W. Goettman
--------------------------------
Name: Jeffrey W. Goettman
Title: Vice President
"PURCHASER"
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisors (Bermuda), Limited,
as general partner
By: /s/ Thomas K. Smith, Jr.
-----------------------------------
Name: Thomas K,. Smith, Jr.
Title: Senior Vice President
By: TCW Investment Management Company,
as Investment Advisor
By: /s/ Melissa V. Weiler
--------------------------------------
Name: Melissa V. Weiler
Title: Managing Director
Address:
c/o TCW/Crescent Mezzanine, L.L.C.
200 Crescent Court, Suite 1600
Dallas, TX 75201
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IN WITNESS WHEREOF, the undersigned or each of their duly
authorized officers or representatives have executed this Agreement as of the
date first written above.
"COMPANY"
PACIFIC CIRCUITS, INC.,
a Washington Corporation
By: /s/ Jeffrey W. Goettman
--------------------------------------
Name: Jeffrey W. Goettman
Title: Vice President
"PURCHASER"
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW (LINC II), L.P.
as general partner
By: TCW Advisors (Bermuda), Ltd.,
as general partner
By: /s/ Thomas K. Smith, Jr.
--------------------------------------
Name: Thomas K,. Smith, Jr.
Title: Senior Vice President
By: TCW Investment Management Company,
as Investment Advisor
By: /s/ Melissa V. Weiler
--------------------------------------
Name: Melissa V. Weiler
Title: Managing Director
Address:
c/o TCW/Crescent Mezzanine, L.L.C.
200 Crescent Court, Suite 1600
Dallas, TX 75201
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SCHEDULE I
NUMBER OF SHARES
PURCHASER PURCHASED CONSIDERATION PAID
--------- ---------------- ------------------
James Eisenberg 2,000 $2,000,000
Dale Anderson 2,000 $2,000,000
TCW/ Crescent Mezzanine Partners II, L.P. 724.4 $724,400
TCW/Crescent Mezzanine Trust II 175.6 $175,600
TCW/Leveraged Income Trust, L.P. 50 $50,000
TCW/Leveraged Income Trust II, L.P. 50 $50,000
F.G. Lindsay Burton 25 $25,000
Kent Alder 300 $300,000
Michael Lambrakis 200 $200,000
Dr. Edward Woerz 100 $100,000
TOTAL 5,625 $5,625,000
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