Exhibit 10.12


 


SUBSCRIPTION
AGREEMENT


 


SUBSCRIPTION
AGREEMENT, dated as of [         ],
2004 (the “Agreement”), between LHP Holding Corp., a Delaware
corporation (the “Company”), and the purchaser whose name appears on the
signature page hereof (the “Purchaser”). 
Capitalized terms used in this Agreement and not defined herein shall
have the meaning ascribed to such terms in the LHP Holding Corp. 2004
Restricted Stock Plan.


 


W I T N E S S E T H:


 


WHEREAS, the Board
has adopted the Plan to provide officers and key employees of the Company and
the Subsidiaries with opportunities to purchase shares of Common Stock;


 


WHEREAS, the terms
of the offering (the “Offering”) of the shares of Common Stock to the
Purchaser and the other purchasers are set forth in a Confidential Offering
Memorandum, dated [         ],
2004 (as supplemented from time to time, the “Offering Memorandum”), a
copy of which has been furnished to the Purchaser;


 


WHEREAS, the
Purchaser desires to subscribe for and purchase from the Company pursuant to
the Plan the aggregate number of shares of Common Stock set forth on the
signature page hereof (each a “Share” and, collectively, the “Shares”)
on the terms and conditions set forth herein and in the Plan; and


 


WHEREAS, the
Company desires to sell the Shares to the Purchaser on the terms and conditions
set forth herein and in the Plan.


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 the terms and conditions of this
Agreement, the Purchaser hereby subscribes for and shall purchase, and the
Company shall sell to the Purchaser, the Shares at a purchase price of $2.37
per Share (the “Purchase Price”), at the Closing provided for in Section
2(a) hereof.  The Shares purchased
hereunder are being issued pursuant to and in accordance with the Plan and, as
such, are subject in all respects to the Plan, all of the terms of which are
made a part of and incorporated into this Agreement.  In the event of any conflict between any term
of this Agreement and the terms of the Plan, the terms of the Plan shall
control.  Notwithstanding anything to the
contrary in this Agreement, the Company shall have no obligation to sell any
Common Stock to (i) any person who is not an employee of the


 


1





















 


Company or any Subsidiary
at the time such Common Stock is to be sold, or (ii) any person who is a
resident of a jurisdiction in which the sale of Common Stock to such person
would constitute a violation of the securities, “blue sky” or other laws of
such jurisdiction.


 


(b)           Consideration.  Subject to the terms and conditions of this
Agreement, the Purchaser shall deliver to the Company at the Closing (as
defined below) immediately available funds in an amount equal to the aggregate
Purchase Price for the Shares set forth on the signature page hereof.


 


2.             Closing.


 


(a)           Time and Place.  Except as otherwise agreed by the Company and
the Purchaser in writing, the closing (the “Closing”) of the
transactions contemplated by this Agreement shall be held at the offices of
Debevoise & Plimpton, 919 Third Avenue, New York, New York at
10:00 a.m. (New York time) on or about [       ],
2004.


 


(b)           Delivery by the Company.  At the Closing, the Company shall deliver to
the Purchaser a stock certificate registered in the Purchaser’s name and
representing the Shares, which certificate shall bear the legends set forth in
Section 3(b).


 


(c)           Delivery by the Purchaser.  At the Closing, the Purchaser shall deliver
to the Company (i) the consideration referred to in Section 1(b),
and (ii) a joinder to the Stockholders Agreement, executed by the
Purchaser.


 


3.             Purchaser’s
Representations, Warranties and Covenants.


 


(a)           Investment Intention.  The Purchaser represents and warrants that
the Purchaser is acquiring the Shares solely for the Purchaser’s own account
for investment and not with a view to or for sale in connection with any distribution
thereof.  The Purchaser agrees that the
Purchaser 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 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 and foreign securities or “blue
sky” laws.  The Purchaser further
understands, acknowledges and agrees that none of the Shares may be
transferred, sold, pledged, hypothecated or otherwise disposed of (i) unless
the provisions of Section 4, and the applicable provisions of the
Agreement (including, but not limited to, the Plan as incorporated by reference
herein) and the Stockholders Agreement shall have been complied with or have
expired, (ii) unless (A) such disposition is pursuant to an
effective registration statement under the Securities Act, (B) the
Purchaser shall have delivered to the Company an opinion of counsel, which
opinion and counsel shall be


 


2





















 


reasonably satisfactory
to the Company, to the effect that such disposition is exempt from the
provisions of Section 5 of the Securities Act, or (C) a
no-action letter from the Commission, reasonably satisfactory to the Company,
shall have been obtained with respect to such disposition, and (iii) unless
such disposition is pursuant to registration under any applicable state and
foreign securities laws or an exemption therefrom.


 


(b)           Legends.  The Purchaser acknowledges that the
certificate or certificates representing the Shares shall bear an appropriate
legend, which will include, without limitation, the following language:


 


“THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A
SUBSCRIPTION AGREEMENT, DATED AS OF [          ],
2004, AS AMENDED FROM TIME TO TIME, AND A STOCKHOLDERS AGREEMENT, DATED AS OF
MAY 27, 2004, BY AND AMONG THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY,
AS AMENDED FROM TIME TO TIME, AND NEITHER THIS CERTIFICATE NOR THE SHARES
REPRESENTED BY IT ARE ASSIGNABLE OR OTHERWISE TRANSFERABLE EXCEPT IN ACCORDANCE
WITH THE PROVISIONS OF SUCH SUBSCRIPTION AGREEMENT AND SUCH STOCKHOLDERS
AGREEMENT, COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY.”


 


“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 THE COMPANY AN OPINION OF COUNSEL, WHICH
OPINION AND COUNSEL SHALL BE REASONABLY SATISFACTORY TO THE COMPANY, 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 THE COMPANY, SHALL HAVE BEEN
OBTAINED WITH RESPECT TO SUCH DISPOSITION AND (ii) SUCH DISPOSITION
IS PURSUANT TO REGISTRATION UNDER ANY APPLICABLE STATE AND FOREIGN SECURITIES
LAWS OR AN EXEMPTION THEREFROM.”


 


(c)           Securities Law Matters.  The Purchaser acknowledges receipt of advice
from the Company that (i) the Shares have not been registered under
the Securities Act or any state or foreign securities or “blue sky” laws, (ii) it
is not anticipated that there will


 


3





















 


be any public market for
the Shares, (iii) the Shares must be held indefinitely and the
Purchaser must continue to bear the economic risk of the investment in the
Shares unless the Shares are subsequently registered under the Securities Act
and such state or foreign laws or an exemption from registration is available,
(iv) Rule 144 promulgated under the Securities Act (“Rule 144”)
is not presently available with respect to sales of securities of the Company
and the Company has made no covenant to make Rule 144 available, (v) when
and if the Shares may be disposed of without registration in reliance upon Rule
144, such disposition can generally be made only in limited amounts in
accordance with the terms and conditions of such rule, (vi) the Company
does not plan to file reports with the Commission or make information
concerning the Company publicly available unless required to do so by law or by
the terms of its Financing Agreements (as defined below), (vii) if
the exemption afforded by Rule 144 is not available, sales of the Shares
may be difficult to effect because of the absence of public information
concerning the Company, (viii) a restrictive legend in the form
heretofore set forth shall be placed on the certificates representing the
Shares and (ix) a notation shall be made in the appropriate records
of the Company indicating that the Shares are subject to restrictions on
transfer set forth in this Agreement (including, but not limited to, the Plan
as incorporated by reference herein) and, if the Company should in the future
engage the services of a stock transfer agent, appropriate stop-transfer
restrictions will be issued to such transfer agent with respect to the Shares.


 


(d)           Compliance with Rule 144.  If any of the Shares are to be disposed of in
accordance with Rule 144, the Purchaser shall transmit to the Company an
executed copy of Form 144 (if required by Rule 144) no later than the time such
form is required to be transmitted to the Commission for filing and such other
documentation as the Company may reasonably require to assure compliance with
Rule 144 in connection with such disposition.


 


(e)           Ability to Bear Risk; Access to
Information.  The Purchaser
represents and warrants that (i) the financial situation of the
Purchaser is such that he can afford to bear the economic risk of the Shares
for an indefinite period, (ii) the Purchaser can afford to suffer the
complete loss of the Purchaser’s investment in the Shares, and (iii) the
Purchaser has received and carefully reviewed the Offering Memorandum, each of
the attachments to the Offering Memorandum (including, but not limited to, the
Plan and the Stockholders Agreement), each document incorporated by reference
into the Offering Memorandum, and the other materials furnished to the
Purchaser in connection with the transactions contemplated hereby.


 


(f)            Investor Status.  The Purchaser represents and warrants that,
as of the date hereof, the Purchaser (i) (A) has a pre-existing
personal or business relationship with the Company or any of its managers,
officers, controlling persons or managers, or (B) by reason of the
Purchaser’s business or financial experience or the business or financial
experience of the Purchaser’s professional advisors who are unaffiliated with
and who are


 


4





















 


not compensated, directly
or indirectly, by the Company or any Affiliate thereof, the Purchaser could be
reasonably assumed to have the capacity to evaluate the risks of an investment
in the Shares and to protect the Purchaser’s interests in connection with the
purchase of the Shares hereunder, and (ii) is an officer or employee of
the Company or any Subsidiary.  The term “preexisting
personal or business relationship” includes, but is not limited to, any
relationship consisting of personal or business contacts of a nature and
duration such as would enable a reasonably prudent purchaser to be aware of the
character, business acumen and general business and financial circumstances of
the person with whom such relationship exists


 


(g)           Restrictions on Sale upon Public
Offering.  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 (including a
sale under Rule 144) or distribution of any shares of 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.


 


(h)           Section 83(b) Election.  The Purchaser agrees that, within 20 days
after the Closing, the Purchaser shall give notice to the Company as to whether
or not the Purchaser has made or will make an election pursuant to
Section 83(b) of the Code, with respect to the Shares purchased at such
Closing, and acknowledges that the Purchaser will be solely responsible for any
and all tax liabilities payable by the Purchaser in connection with the
Purchaser’s purchase and receipt of the Shares or attributable to the Purchaser’s
making or failing to make such an election.


 


4.             Call Rights Upon and After
Termination of Employment.


 


(a)           First Call Right.  If the Purchaser’s employment with the
Company and any Subsidiary that employs the Purchaser is terminated for any
reason whatsoever, the Company shall have the right (the “First Call Right”)
to repurchase up to that number of shares equal to the number of Shares
multiplied by a fraction, the numerator of which shall equal four minus the
number of full years from [          ]
to the employment termination date (but not less than zero), and the
denominator of which shall equal four, and shall have 90 days during which to
give notice in writing to the Purchaser (or the Purchaser’s estate) of its
election to exercise or not to exercise such right, in whole or in part.  Subject to Section 6(c), the aggregate
purchase price for the Shares purchased pursuant to this Section 4(a) shall
equal the lower their aggregate Purchase Price and their aggregate Fair Market
Value as the date of such termination date. 
If the Company fails to give notice that it intends to exercise such
right within the period specified or the Company gives notice that it does not
intend to exercise such right or that it intends to exercise such right with
respect to only a portion of the Shares subject to the First Call Right, the
Purchaser (or the Purchaser’s estate) shall be entitled to retain the Shares


 


5





















 


which could have been
acquired on exercise thereof, subject to all of the provisions of the Agreement
(including, but not limited to, the Plan as incorporated by reference herein,
the Second Call Right, and the Post-Employment Call Right, the Stockholders
Agreement and any other agreement to which such Common Stock is subject.  All purchases pursuant to the First Call
Right by the Company shall be in the manner prescribed by Section 4(d)
hereof.


 


(b)           Second Call Right.  If the Purchaser’s employment with the
Company and any Subsidiary that employs the Purchaser is terminated (i)
for Cause at any time, or (ii) for any other reason during the six
year period beginning from [          ],
the Company shall have the right (the “Second Call Right”) to repurchase
up to that number of Shares which are no longer subject to the First Call
Right, and shall have 90 days during which to give notice in writing to the
Purchaser (or the Purchaser’s estate) of its election to exercise or not to
exercise such right, in whole or in part. 
Subject to Section 6(c), the aggregate purchase price of the Shares
purchased pursuant to the Second Call Right shall equal (A) if the
Purchaser’s employment is terminated due to his death, Disability or
Retirement, by the Company without Cause or by the Purchaser for Good Reason,
their aggregate Fair Market Value as of the termination date, and (B) if the
Purchaser’s employment is terminated by the Company for Cause or by the
Purchaser without Good Reason, the lower of their aggregate Purchase Price and
their aggregate Fair Market Value as of the termination date.  If the Company fails to give notice that it
intends to exercise such right within the period specified or the Company gives
notice that it does not intend to exercise such right or that it intends to
exercise such right with respect to only a portion of the Shares subject to the
Second Call Right, the Purchaser (or the Purchaser’s estate) shall be entitled
to (I) if the Purchaser’s employment is terminated for death or
Disability, then on notice from the Purchaser (or the Purchaser’s estate) in
writing and delivered to the Company within 90 days following the earlier of
the last day of the Company’s 90-day notice period and the date the Company
delivers written notice to the Purchaser indicating whether the Company will
exercise its rights under the Second Call Right, the Company shall purchase all
(and not less than all) of the Shares then held by the Purchaser (or the
Purchaser’s estate), or (II) retain the Shares which could have
been acquired on exercise thereof, subject to all of the provisions of the
Agreement (including, but not limited to, the Plan as incorporated by reference
herein and the Post-Employment Call Right, the Stockholders Agreement and any
other agreement to which such Common Stock is subject).  All purchases pursuant to the Second Call
Right by the Company shall be in the manner prescribed by Section 4(d)
hereof.


 


(c)           Post-Employment Call Right.  If, following any termination of employment,
the Purchaser commits any breach of any post-termination non-competition,
non-solicitation, confidentially, or other similar agreement or covenant with
the Company (as determined by the Board in its sole discretion), then the
Company shall have the right to repurchase all or any portion of the Shares
then held by the Participant, and shall have


 


6





















 


90 days from the date the
Company becomes aware of such breach during which to give notice in writing to
the Purchaser (or the Purchaser’s estate) of its election to exercise or not to
exercise such right, in whole or in part. 
Subject to Section 6(c), the aggregate purchase price for the Shares
purchased pursuant to the Post-Employment Call Right shall equal the lower of
their aggregate Purchase Price and their aggregate Fair Market Value as of the
first date of such breach.  If the
Company fails to give notice that it intends to exercise such right within the
period specified or the Company gives notice that it does not intend to
exercise such option or that it intends to exercise such option with respect to
only a portion of the Shares subject to, the Purchaser (or the Purchaser’s
estate) shall be entitled to retain the Shares which could have been acquired
on exercise thereof, subject to all of the provisions of the Agreement
(including, but not limited to, the Plan as incorporated by reference herein),
the Stockholders Agreement and any other agreement to which such Common Stock
is subject.  All purchases pursuant to
the Post-Employment Call Right by the Company shall be in the manner prescribed
by Section 4(d) hereof.


 


(d)           Closing of Purchase; Payment of
Purchase Price.  Subject to
Section 6, the closing of a purchase pursuant to this Section 4 shall
take place at the principal office of the Company on the tenth business day
following whichever of the following is applicable:  (i) the receipt by the Purchaser
(or the Purchaser’s estate) of the notice of the Company of its exercise of its
right to purchase any of the Shares pursuant to Section 4(a), (b) or (c),
as the case may be.  At the closing, (i)
the Company, shall pay to the Purchaser (or the Purchaser’s estate) an amount
equal to the purchase price as determined in accordance with Section 4(a), (b)
or (c), as the case may be, and (ii) the Purchaser (or the Purchaser’s
estate) shall deliver to the Company such certificates or other instruments
representing the Shares so purchased, appropriately endorsed by the Purchaser
(or the Purchaser’s estate), as the Company may reasonably require.


 


(e)           Board Discretion.  Notwithstanding anything to the contrary
contained in this Section 4, the Board may, at or after the Closing, waive the
Call Rights in respect of Shares upon termination of employment.


 


(f)            Certain Adjustments.  Notwithstanding anything to the contrary
contained in this Section 4, in the event of an Adjustment Event, the purchase
price payable pursuant to this Section 4 (including any minimum or maximum
purchase price specified herein or in effect as a result of a prior adjustment)
shall be appropriately adjusted as provided in the Plan to reflect such event.


 


5.             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


 


7





















 


the Company in accordance
with its terms, and (c) the Shares, when issued, delivered and paid
for in accordance with the terms hereof, will be duly and validly issued, fully
paid and nonassessable, and free and clear of any liens or encumbrances other
than those created pursuant to this Agreement (including, but not limited to,
the Plan as incorporated by reference herein), the Stockholders Agreement, or
otherwise in connection with the transactions contemplated hereby.


 


6.             Certain Restrictions on
Repurchases.


 


(a)           Financing Agreements, etc.  Notwithstanding any other provision of this
Agreement (including, but not limited to, the Plan as incorporated by reference
herein), the Company shall not be permitted to repurchase any Shares from the
Purchaser to the extent that (i) such repurchase (or the payment of
a dividend by any Subsidiary to fund such repurchase) would result in any
default or an event of default, or would be prohibited under, any
financing or security agreement or document entered into by the Company or any
Subsidiary prior to the date hereof, any refunding thereof, or in connection
with the operations of the Company or any Subsidiary from time to time, in each
case, as the same may be amended, modified or supplemented from time to time
(the “Financing Agreements”), (ii) such repurchase would result
in a violation of any law, statute, rule, regulation, policy, order, writ,
injunction, decree or judgment promulgated or entered by any federal, state,
local or foreign court or governmental authority applicable to the Company or
any Subsidiary or any of its or their property, (iii) such
repurchase would violate any of the terms or provisions of the Certificate of
Incorporation of the Company, or (iv) the Company has no funds
legally available therefor under the General Corporation Law of the State of
Delaware.


 


(b)           Delay of Repurchase.  In the event that a repurchase by the Company
otherwise permitted under Section 4 is prevented solely by the terms of
Section 6(a), (i) such repurchase will be postponed and will
take place without the application of further conditions or impediments (other
than as set forth in Section 4 or in this Section 6) at the first
opportunity when the Company has funds legally available therefor and when such
repurchase will not result in any default, event of default or violation under
any of the Financing Agreements or in a violation of any term or provision of the
Certificate of Incorporation of the Company and (ii) such
repurchase obligation shall rank against other similar repurchase obligations
with respect to shares of Common Stock according to priority in time of the
effective date of the termination of employment giving rise to such repurchase;
provided, that any such repurchase
obligations as to which a common date determines priority shall be of equal
priority and shall share pro rata in any repurchase payments made pursuant to
clause (i) of this Section 6(b); and provided, further, that
any repurchase commitment arising from death, Disability, or Retirement or the
comparable provisions of any other applicable subscription agreements shall
have priority over any other repurchase obligation.


 


8





















 


(c)           Purchase Price Adjustment.  In the event that a repurchase of Shares from
the Purchaser is delayed pursuant to this Section 6, the purchase price
per Share when the repurchase of such Shares eventually takes place as contemplated
by Section 6(b) shall equal the sum of (i) the purchase price
determined in accordance with Section 4 at the time that the repurchase of
such Shares would have occurred but for the operation of this Section 6,
plus (ii) an amount equal to interest on such purchase price for
the period from the date on which the completion of the repurchase would have
taken place but for the operation of this Section 6 to the date on which such
repurchase actually takes place (the “Delay Period”) at a rate equal to
the average annual cost to the Company of its and its Subsidiaries bank
indebtedness obligations outstanding during the Delay Period or, if there are
no such obligations outstanding, one percentage point greater than the average
prime rate charged during such period by any nationally recognized bank
designated by the Company.


 


7.             Miscellaneous.


 


(a)           Binding Effect; Benefits;
Assignability.  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.  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.


 


(b)           Amendment.  This Agreement may be amended, modified or
supplemented only by a written instrument executed by the Purchaser and the
Company.  The parties hereto acknowledge
that the Company’s consent to an amendment or modification of this Agreement is
subject to the terms and provisions of the Financing Agreements.


 


(c)           Delegation by the Board.  All of the powers, duties and
responsibilities of the Board specified in this Agreement may, to the full
extent per­mitted by applicable law, be exercised and performed by any duly
constituted committee thereof to the extent authorized by the Board to exercise
and perform such powers, duties and responsibilities.


 


(d)           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.


 


(e)           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


 


9





















 


shall constitute one and
the same instrument.  The parties hereto
agree to accept a signed facsimile copy of this Agreement as a fully binding
original.


— Signature
page follows —


 


10





















 


IN WITNESS
WHEREOF, the Company and the Purchaser have executed this Agreement as of the
date first above written.


 


	
   

  	
   

  
	
   

  	
  LHP HOLDING
  CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  PURCHASER

  
	
   

  	
   

  
	
   

  	
  «Name»

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  as
  Attorney-in-Fact

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
  Number of Shares

  	
   

  
	
  of Common Stock
  to be

  	
   

  
	
  Purchased:

  	
  «Shares»

  
	
   

  	
   

  
	
  Aggregate
  Purchase

  	
   

  
	
  Price for
  Shares:

  	
  $«Share_Amount»

  



 


 


11