EXHIBIT 10.8
STOCK SUBSCRIPTION AGREEMENT
THIS STOCK SUBSCRIPTION AGREEMENT (the "Subscription Agreement") is made as
of this 7th day of April 1998 by and among:
RIVER ACQUISITION CORP., a corporation organized and existing under
the laws of the State of California (the "Company"); and
RIVER HOLDING CORP., a corporation organized and existing under the
laws of the State of Delaware ("Investor"), which is subscribing for
and purchasing 5,500,000 shares of common stock of the Company par
value $ .01 per share (the "Shares").
1. Subscription of Shares.
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1.1 Subscriptions. Upon the terms and subject to the conditions of this
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Subscription Agreement, Investor hereby subscribes for the Shares, for a
purchase price of $10.00 per Share, for an aggregate purchase price of
$55,000,000.
1.2 Closing. Upon the terms and subject to the conditions of this
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Agreement, the closing (the "Closing") of the transactions contemplated by this
Subscription Agreement shall take place at the same time and place and
substantially concurrently with the closing under the Amended and Restated
Merger Agreement dated as of March 15, 1998, by and among the Company,
Investor, Hudson Respiratory Care Inc., a California corporation ("Hudson RCI")
and the Shareholders of Hudson RCI (the "Merger Agreement"). The only
conditions to the Closing under this Subscription Agreement shall be the
substantially concurrent satisfaction or waiver of the conditions to closing of
the transactions contemplated by the Merger Agreement. At the Closing, the
Company shall deliver to Investor a certificate for the Shares duly registered
in the name of Investor. Investor shall thereupon immediately endorse and
surrender such certificate for transfer in connection with the Merger.
1.3 Payment by Investor. At the Closing, Investor shall pay the purchase
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price by wire transfer to an account designated by the Company.
2. Representations and Warranties of Investor.
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2.1 Investment Representation. Investor hereby represents and warrants to
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the Company with respect to itself as follows: (a) Investor is acquiring the
Shares for its own account and not with a view to or for sale in connection with
any distribution of the Shares; (b) Investor (i) is familiar with the business
of the Company and Hudson RCI, (ii) has had an opportunity to discuss with
representatives of the Company and Hudson RCI the condition of any prospects for
the continued operation and financing of the Company and Hudson RCI and such
other matters as Investor has deemed appropriate in considering whether to
invest in the Shares, and (iii) has been provided access to all available
information about the Company and Hudson RCI requested by Investor; and (c)
Investor understands that the Shares have not been registered under the
Securities Act of 1933, as amended (the "Act"), or registered or qualified under
the securities laws of any state and that Investor may not sell or otherwise
transfer the Shares unless they are subsequently registered under the Act and
registered or qualified under applicable state securities laws, or unless an
exemption is available which permits sale or other transfer without such
registration and qualification.
2.2 Indemnification of the Company. Investor hereby agrees to indemnify,
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defend and hold harmless the Company (including its officers, directors, assigns
and successors) from and against any and all claims, actions, deficiencies,
assessments, liabilities, losses, damages, costs, expenses, judgments and
settlements, including reasonable legal fees, of any kind (collectively,
"Claims") relating to or arising out of or in connection with or incidental to
any breach of any representation or warranty of Investor under this Subscription
Agreement.
3. Representations and Warranties of the Company.
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3.1 The Company represents and warrants as follows:
(a) Organization and Corporate Authority; Binding Obligation. The
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Company is a corporation duly organized, validly existing and in good standing
under the laws of Delaware, and has full corporate power and authority to
execute, deliver and perform this Agreement. The Company has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly authorized by
all necessary corporate action and constitutes (or upon execution and delivery
will constitute) a legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as enforcement may
be limited by equitable principles or by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to creditors' rights generally.
(b) Agreement not a Breach. The execution of this Agreement by the
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Company and the fulfillment, performance and compliance with the terms and
provisions of this Agreement by the Company will not (i) conflict with or result
in a breach of any provision of the Company's Articles of Incorporation or
Bylaws; (ii) conflict with, violate or result in a breach of the terms,
conditions or provisions of, or constitute a default or result in the
acceleration of any obligation under, or result in the cancelation or
modification of, or permit termination of, any material agreement or instrument
to which the Company is a party or by which the Company is bound; or (iii)
conflict with or violate the provisions of any law or any judgment, decree,
order, regulation, arbitration award or rule of any court or governmental
authority or any covenant or restriction binding upon the Company, including,
without limitation, the Articles of Incorporation.
3.2 Indemnification. The Company hereby agrees to indemnify, defend and
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hold harmless the Investor (including its officers, directors, shareholders,
employees, assigns and
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successors and affiliates) from and against any and all claims, actions,
deficiencies, assessments, liabilities, losses, damages, costs, expenses,
judgments and settlements, including reasonable legal fees, of any kind
(collectively, "Claims") relating to or arising out of or in connection with or
incidental to (i) any breach of any representation or warranty of the Company
under this Subscription Agreement, and (ii) any liability that Investor may
incur, or litigation or Claims relating to, Investor's status as a shareholder
of the Company or its successors or assigns (including litigation that Investor
may be made party to as a result of their ownership of Common Stock or other
securities of the Company, or its successors and assigns).
4. Miscellaneous.
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4.1 Legends on Certificates. Any and all certificates now or hereafter
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issued evidencing the Shares shall have endorsed upon them a legend such legends
and shall be subject to such restrictions on transfer as may be necessary to
comply with all applicable federal and state securities laws and regulations.
4.2 Further Assurances. Each party hereto agrees to perform any further
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acts and execute and deliver any document which may be reasonably necessary to
carry out the intent of this Agreement.
4.3 Binding Agreement. This Agreement shall bind and inure to the benefit
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of the successors and assigns of the Company, including Hudson Respiratory Care
Inc. upon consummation of the Merger, and the successors and assigns of
Investor.
4.4 Notices. Any notice required or permitted to be given pursuant to
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this Agreement shall be in writing and shall be deemed given upon personal
delivery or, if mailed, upon the expiration of 48 hours after mailing by any
form of United States mail requiring a return receipt, addressed (i) to Investor
at the address set forth on the signature page hereof, (ii) to the Company at
11100 Santa Monica Boulevard, Los Angeles, California 90025. A party may change
its address by giving written notice to the other parties setting forth the new
address for the giving of notices pursuant to this Agreement.
4.5 Amendments. This Agreement may be amended at any time by the written
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agreement and consent of the parties hereof.
4.6 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of California.
4.7 Disputes. In the event of any dispute among the parties arising out
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of this Agreement, the prevailing party shall be entitled to recover from the
nonprevailing party the reasonable expenses of the prevailing party, including,
without limitation, reasonable attorneys' fees.
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4.8 Entire Agreement. This Agreement, including the agreements referred
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to herein, constitutes the entire agreement and understanding among the parties
pertaining to the subject matter hereof and supersedes any and all prior
agreements, whether written or oral, relating thereto.
4.9 Headings. Introductory headings at the beginning of each section of
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this Agreement are solely for the convenience of the parties and shall not be
deemed to be a limitation upon or description of the contents of any such
section.
4.10 Counterparts. This Agreement may be executed in two or more
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counterparts, all of which, when taken together, shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
RIVER ACQUISITION CORP.
By: /s/ Charles P. Rullman
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Its: President
RIVER HOLDING CORP.
By: /s/ Charles P. Rullman
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Charles P. Rullman
Its: President
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