Exhibit 10.12
Conformed Copy
STOCK SUBSCRIPTION AGREEMENT
STOCK SUBSCRIPTION AGREEMENT, dated as of November 19, 1999, between
NA Holding Corporation, a Delaware corporation (the "Company"), and NFC plc, a
company organized under the laws of England and Wales (the "Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to an Acquisition Agreement, dated as of September
14, 1999, as amended from time to time (the "Acquisition Agreement"), between
the Company and the Purchaser, the Purchaser will acquire 174,961 shares of the
common stock, par value $0.01 per share, of the Company (the "Common Stock");
WHEREAS, the Purchaser desires to subscribe for and purchase, and
the Company desires to sell to the Purchaser, 56,338 shares of Common Stock, at
a purchase price of $142.00 per share;
WHEREAS, the Purchaser and the Company have entered into a letter
agreement, dated as of the date hereof (the "Letter Agreement"), with the
Clayton, Dubilier & Rice Fund V Limited Partnership (the "CD&R Fund"), which
sets forth certain agreements among the Company, the Purchaser and the CD&R Fund
with respect to the shares of Common Stock owned from time to time by NFC or its
Affiliates (as defined in the Letter Agreement);
NOW, THEREFORE, to implement the foregoing and in consideration of
the mutual agreements contained herein, the parties hereto hereby agree as
follows:
1. Purchase and Sale of Common Stock.
(a) Purchase of Common Stock. Subject to all of the terms and
conditions of this Agreement, the Purchaser hereby subscribes for and shall
purchase, and the Company shall sell to the Purchaser, 56,338 shares of Common
Stock (the "Shares"), at a purchase price of $142.00 per Share, at the Closing
provided for in Section 2(a) hereof.
(b) Consideration. Subject to all of the terms and conditions of
this Agreement, the Purchaser shall deliver to the Company at the Closing
referred to in Sec-
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tion 2(a) hereof immediately available funds in the amount of $7,999,996.00 by
wire transfer to an account designated by the Company.
2. Closing.
(a) Time and Place. The parties currently intend that the closing of
the transaction contemplated by this Agreement (the "Closing") shall be held at
the offices of Debevoise & Plimpton, 875 Third Avenue, New York, New York at
10:00 a.m. (New York time) on December 1, 1999, except as otherwise mutually
agreed by the Company and the Purchaser, provided that if the Closing does not
occur on December 1, 1999, the Closing shall take place no later than December
31, 1999.
(b) Delivery by the Company. At the Closing the Company shall
deliver to the Purchaser a stock certificate registered in such Purchaser's name
and representing the Shares, which certificate shall bear the legend set forth
in Section 3(b).
(c) Delivery by the Purchaser. At the Closing the Purchaser shall
deliver to the Company the consideration referred to in Section 1(b) hereof.
3. Purchaser's Representations, Warranties and Covenants.
(a) Investment Intention. The Purchaser represents and warrants that
it is acquiring the Shares solely for its own account for investment and not
with a view to or for sale in connection with any distribution thereof in any
transaction or series of transactions that would be in violation of the
securities laws of the United States or any state thereof. The Purchaser agrees
that it will not, directly or indirectly, offer, transfer, sell, pledge,
hypothecate or otherwise dispose of any of the Shares (or solicit any offers to
buy, purchase or otherwise acquire or take a pledge of any Shares), except in
compliance with the Letter Agreement and with the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations of the Securities
and Exchange Commission (the "Commission") thereunder, and in compliance with
applicable state securities or "blue sky" laws.
(b) Legend. The Purchaser acknowledges that the certificate or
certificates representing the Shares shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TRANSFER RESTRICTIONS (INCLUDING A RIGHT OF FIRST REFUSAL AND A
HOLDBACK AGREEMENT) SET FORTH IN A LETTER AGREEMENT, DATED AS OF
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NOVEMBER 19, 1999, AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO
TIME, AMONG NA HOLDING CORPORATION, NORTH AMERICAN VAN LINES, INC.,
NFC PLC AND CLAYTON, DUBILIER & RICE FUND V LIMITED PARTNERSHIP AND
NEITHER THIS CERTIFICATE NOR THE SHARES REPRESENTED BY IT ARE
ASSIGNABLE OR OTHERWISE TRANSFERABLE EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SUCH LETTER AGREEMENT, A COPY OF WHICH IS ON FILE WITH
THE SECRETARY OF NA HOLDING CORPORATION. THE SHARES REPRESENTED BY
THIS CERTIFICATE ARE ENTITLED TO CERTAIN OF THE BENEFITS OF AND ARE
BOUND BY THE OBLIGATIONS SET FORTH IN A REGISTRATION AND
PARTICIPATION AGREEMENT, DATED AS OF MARCH 30, 1998, AS AMENDED AS
OF NOVEMBER 19, 1999, AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO
TIME, AMONG NA HOLDING CORPORATION AND CERTAIN STOCKHOLDERS OF NA
HOLDING CORPORATION, A COPY OF WHICH IS ON FILE WITH THE SECRETARY
OF NA HOLDING CORPORATION.
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE OR
FOREIGN SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (i) (A) SUCH
DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, (B) THE HOLDER HEREOF SHALL
HAVE DELIVERED TO NA HOLDING CORPORATION AN OPINION OF COUNSEL,
WHICH OPINION AND COUNSEL SHALL BE REASONABLY SATISFACTORY TO NA
HOLDING CORPORATION, TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT
FROM THE PROVISIONS OF SECTION 5 OF SUCH ACT OR (C) A NO-ACTION
LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION, REASONABLY
SATISFACTORY TO COUNSEL FOR NA HOLDING CORPORATION, SHALL HAVE BEEN
OBTAINED WITH RESPECT TO SUCH DISPOSITION AND (ii) SUCH DISPOSITION
IS PURSUANT TO REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES
LAWS OR AN EXEMPTION THEREFROM."
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(c) Registration and Participation Agreement. The Purchaser
acknowledges and agrees that it shall be entitled to the rights and subject to
the obligations created under the Registration and Participation Agreement,
dated as of March 30 1998 (the "Registration and Participation Agreement"),
between the Company and the CD&R Fund, as amended as of November 19, 1999, and
as may be amended from time to time. The Purchaser agrees that, in the event
that the Company files a registration statement under the Securities Act with
respect to an underwritten public offering of any shares of its capital stock,
the Purchaser will not effect any public sale or distribution of any shares of
the Common Stock (other than as part of such underwritten public offering)
during the 20 days prior to and the 180 days after the effective date of such
registration statement.
4. Representations and Warranties of the Company. The Company
represents and warrants to the Purchaser that (a) the Company has been duly
incorporated and is an existing corporation in good standing under the laws of
the State of Delaware, (b) this Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its terms, and
(c) the Shares, when issued and delivered in accordance with the terms hereof,
will be duly authorized, validly issued, fully paid and nonassessable, and free
and clear of any liens or encumbrances other than those created pursuant to this
Agreement or otherwise in connection with the transactions contemplated hereby.
5. Miscellaneous.
(a) Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if delivered personally or sent by certified or
express mail, return receipt requested, postage prepaid, or by any recognized
international equivalent of such mail delivery, to the Company or the Purchaser,
as the case may be, at the following addresses or to such other address as the
Company or the Purchaser, as the case may be, shall specify by notice to the
others:
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(i) if to the Company, to:
NA Holding Corporation
c/o North American Van Lines, Inc.
5001 U.S. Hwy 30 West
P.O. Box 988
Fort Wayne, Indiana 46801-0988
Attention: General Counsel
(ii) if to the Purchaser, to:
NFC, plc
66 Chiltern Street
London W1N 3LT
England
Attention: Director of Legal Services
All such notices and communications shall be deemed to have been received on the
date of delivery or on the third business day after the mailing thereof. Copies
of any notice or other communication given under this Agreement shall also be
given to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Attention: Paul S. Bird, Esq.
(b) Binding Effect; Benefits. This Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and their respective
successors and assigns. Nothing in this Agreement, express or implied, is
intended or shall be construed to give any person other than the parties to this
Agreement or their respective successors or assigns any legal or equitable
right, remedy or claim under or in respect of any agreement or any provision
contained herein.
(c) Waiver; Amendment.
(i) Waiver. Either party hereto may by written notice to the other
(A) extend the time for the performance of any of the obligations or other
actions of the other under this Agreement, (B) waive compliance with any
of the conditions or covenants of the other contained in this Agreement
and (C) waive or modify performance of any of the obligations of the other
under this Agreement.
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Except as provided in the preceding sentence, no action taken pursuant to
this Agreement, including, without limitation, any investigation by or on
behalf of either party, shall be deemed to constitute a waiver by the
party taking such action of compliance with any representations,
warranties, covenants or agreements contained herein. The waiver by either
party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any preceding or succeeding breach
and no failure by either party to exercise any right or privilege
hereunder shall be deemed a waiver of such party's rights or privileges
hereunder or shall be deemed a waiver of such party's rights to exercise
the same at any subsequent time or times hereunder.
(ii) Amendment. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the Purchaser and
the Company.
(d) Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by the Company or the Purchaser without the prior written consent of
the other party.
(e) Applicable Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, regardless of the
law that might be applied under principles of conflict of laws.
(f) Section and Other Headings, etc. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(h) Entire Agreement. This Agreement, together with the Registration
and Participation Agreement and the Letter Agreement, constitutes the entire
understanding and agreement among the parties as to the matters covered herein
and supersedes and replaces any prior understanding, agreement or statement of
intent, whether written or oral, among the parties with respect to the subject
matter hereof.
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IN WITNESS WHEREOF, the Company and the Purchaser have duly executed
this Agreement by their authorized representatives as of the date first above
written.
NA HOLDING CORPORATION
By: /s/Ralph A. Ford
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Name: Ralph A. Ford
Title: Secretary
NFC PLC
By: /s/Jeremy Letchford
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Name: Jeremy Letchford
Title: Secretary