SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5)*
GP Strategies Corporation
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(Name of Issuer)
Common Stock, par value $0.01 per share
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(Title of Class of Securities)
36225V104
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(CUSIP Number)
Jerome I. Feldman
c/o GP Strategies Corporation
9 West 57th Street, Suite 4170
New York, New York 10019
(212) 230-9508
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
Copy to:
Robert J. Hasday, Esq.
Duane, Morris & Heckscher LLP
380 Lexington Avenue
New York, New York 10168
(212) 692-1010
February 11, 2000
-------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box: [ ]
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
CUSIP NO. 36225V104
1) Names of Reporting Persons I.R.S. Identification Nos. of Above Persons
(entities only)
Jerome I. Feldman
2) Check the Appropriate Box if a Member of a Group (See instructions) (a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions)
SC, PF, OO
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization
United States
7) Sole Voting Power
Number of
Shares 882,405 (But see Item 5)
Beneficially 8) Shared Voting Power
Owned by Each
Reporting Person With 0
9) Sole Dispositive Power
882,405 (But see Item 5)
10) Shared Dispositive Power
0
11) Aggregate Amount Beneficially Owned By Each
Reporting Person
882,405
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See instructions) [X]
13) Percent of Class Represented by Amount in Row (11)
7.0%
14) Type of Reporting Person (See Instructions)
IN
<PAGE>
Item 1. Security and Issuer
The class of equity securities to which this statement relates is the
common stock, par value $.01 per share (the "Common Stock"), of GP Strategies
Corporation, a Delaware corporation (the "Company"), which has its principal
executive offices at 9 West 57th Street, Suite 4170, New York, New York 10019.
This statement constitutes Amendment No. 5 ("Amendment No. 5") to a Schedule
13D, dated September 10, 1999 (the "Schedule 13D"). Except as amended hereby and
in the other amendments hereto, the statements in the Schedule 13D remain
unchanged. Unless otherwise indicated, capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to them in the Schedule 13D.
Item 3. Source and Amount of Funds or Other Consideration
Item 3 of the Schedule 13D is hereby amended to add the following
information:
On February 23, 2000, Mr. Feldman acquired 150,000 shares of Class B
Stock upon exercise of (i) 125,000 options with an exercise price of $8.50 per
share and (ii) 25,000 options with an exercise price of $8.69 per share. The
sources of funds for the $1,279,750 aggregate purchase price for such option
shares were a loan from the Company ($1,278,250) and personal funds ($1,500).
Such loan bears interest at the prime rate of Fleet Bank and is secured by the
purchased Class B Stock.
Item 4. Purpose of Transaction
Item 4 of the Schedule 13D is hereby amended to add the following
information:
The Company, Andersen Weinroth & Co., L.P. ("AW"), and Mr. Feldman have
entered into a Stockholders Agreement, dated February 11, 2000 (the "AW
Stockholders Agreement"), pursuant to which Mr. Feldman has (a) granted certain
tag-along rights to AW with respect to shares of Class B Stock and (b) agreed to
vote all of his shares of Class B Stock in favor of the election of G. Chris
Andersen ("Andersen") or Stephen Weinroth ("Weinroth") if either of them is
nominated by the Company to serve on the Board of Directors of the Company.
Andersen and Weinroth are the general partners of AW.
As a result of the AW Stockholders Agreement, Mr. Feldman may be deemed
a member of a "group" for purposes of Section 13(d) under the Act with AW,
Andersen, and Weinroth. The filing of this Schedule 13D shall not be deemed an
admission by Mr. Feldman that he is a member of such a group, and Mr. Feldman
does not admit that he should be deemed to be a member of such a group.
Item 5. Interest in Securities of the Issuer
Item 5 of the Schedule 13D is hereby amended to add the following
information:
<PAGE>
Mr. Feldman beneficially owns 882,405 shares of Common Stock,
representing 7.0% of the outstanding shares of Common Stock, consisting of (i)
38,655 shares of Common Stock issuable upon exercise of currently exercisable
stock options, (ii) 568,750 shares of Common Stock issuable upon conversion of
Class B Stock held directly, and (iii) 275,000 shares of Common Stock issuable
upon conversion of Class B Stock issuable upon exercise of currently exercisable
stock options. Mr. Feldman's total does not include 1,173 shares of Common Stock
held by members of his family, of which he disclaims beneficial ownership.
Except as disclosed in Item 3 of this Amendment No. 5, Mr. Feldman has
not purchased or sold any shares of Common Stock or securities exercisable for
or convertible into Common Stock during the past 60 days.
Information with respect to the beneficial ownership of shares of Class
B Stock and Common Stock by AW, Andersen, and Weinroth is contained in a
Schedule 13D (the "AW Schedule 13D") being filed by AW, Andersen, and Weinroth
on or about the date hereof, which information is hereby incorporated by
reference herein. Mr. Feldman is not responsible for the accuracy or
completeness of the information in the AW Schedule 13D.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
The AW Stockholders Agreement is described in Item 4.
Item 7. Material to be Filed as Exhibits
Item 7 of the Schedule 13D is hereby amended to add the following
exhibits:
Exhibit 16. Stockholders Agreement, dated February 11, 2000, among GP Strategies
Corporation, Andersen Weinroth & Co., L.P., and Jerome I. Feldman.
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: February 23, 2000
---------------------------------
Jerome I. Feldman
<PAGE>
Exhibit 16
SUBSCRIPTION AGREEMENT
GP Strategies Corporation
9 West 57th Street
New York, New York 10019
Attn: Chief Executive Officer
Ladies and Gentlemen:
1. Subscription for Class B Stock. The undersigned (the "Subscriber") is hereby
purchasing from GP Strategies Corporation, a Delaware corporation (the
"Company"), 200,000 shares (the "Shares") of Class B Capital Stock, par value
$.01 per share (the "Class B Stock"), of the Company at $6.00 per share for an
aggregate purchase price (the "Purchase Price") of $1,200,000.
2. Closing. Payment of the Purchase Price is being made by electronic
wire transfer in accordance with the following instructions:
Account Name: GP Strategies Corporation
Bank Name: Fleet Bank
Bank Address:
ABA#: 021-200-339
Account #: 2169-00-0273
or by delivery of a bank check or certified check made payable to "GP
Strategies Corporation" against delivery to the undersigned of a certificate
representing the Shares.
3. Transfer Restrictions.
1. The Subscriber understands and agrees that the Shares, and the shares
(the "Underlying Shares") of common stock, par value $.01 per share (the "Common
Stock"), of the Company issuable upon conversion of the Shares, have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or any foreign or state securities laws and that accordingly they will not be
transferable except as permitted under various exemptions contained in the
Securities Act, foreign or state securities laws, or upon satisfaction of the
registration and prospectus delivery requirements of the Securities Act. The
Subscriber acknowledges and agrees that it must bear the economic risk of the
Shares and the Underlying Shares for an indefinite period of time since they
have not been registered under the Securities Act and therefore cannot be
transferred unless they are subsequently registered or an exemption from
registration is available. The undersigned has been advised that the Company has
no obligation, and does not intend, to cause the Shares or the Underlying Shares
to be registered under the Securities Act or any foreign or state securities
laws.
<PAGE>
2. The Subscriber agrees with the Company that the certificates evidencing
the Shares and the Underlying Shares shall be stamped or otherwise imprinted
with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAW. THESE SECURITIES
MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR ANY EXEMPTION THEREFROM
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAW."
3. The Subscriber agrees with the Company that the certificates evidencing
the Shares shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE TRANSFER OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE IS SUBJECT TO THE TERMS
AND CONDITIONS OF A STOCKHOLDERS' AGREEMENT,
DATED AS OF FEBRUARY 11, 2000, BY AND AMONG
THE COMPANY, THE HOLDER OF RECORD OF THIS
CERTIFICATE AND CERTAIN OTHER SIGNATORIES
THERETO, AND NO TRANSFER OF SUCH SECURITIES
SHALL BE VALID OR EFFECTIVE EXCEPT IN
ACCORDANCE WITH SUCH STOCKHOLDERS' AGREEMENT
AND UNTIL SUCH TERMS AND CONDITIONS HAVE
BEEN FULFILLED. COPIES OF THE STOCKHOLDERS'
AGREEMENT MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD
OF THIS CERTIFICATE TO THE SECRETARY OF THE
COMPANY AT THE PRINCIPAL EXECUTIVE OFFICES
THEREOF."
4. The legend endorsed on the certificates pursuant to Section 3(b) hereof
shall be removed and the Company shall issue a certificate without such legend
to the holder thereof at such time as the securities evidenced thereby cease to
be restricted securities upon the earliest to occur of (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (ii) the securities shall
have been sold to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act, or (iii) such securities may be sold by the holder
without restriction or registration under Rule 144(k) under the Securities Act
(or any successor provision).
<PAGE>
4. Representations and Warranties of the Company. The Company represents
and warrants to the Subscriber that:
1. Organization of the Company and its Subsidiaries. Each of the Company
and its Subsidiaries (as defined below) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization and has
all requisite corporate, partnership or limited liability company power and
authority to carry on its business as now being conducted. Each of the Company
and its Subsidiaries is duly qualified or licensed to do business and is in good
standing in each jurisdiction in which the property owned, leased or operated by
it or the nature of the business conducted by it makes such qualification or
licensing necessary, except where the failure to be so qualified, licensed or in
good standing would not have a material adverse effect on the business,
properties, condition (financial or otherwise), prospects or results of
operations of the Company and its Subsidiaries, taken as a whole (a "Material
Adverse Effect"). The Company has delivered to the Subscriber a true and correct
copy of the Certificate of Incorporation and Bylaws of the Company, in each case
as amended to the date of this Agreement. All of the outstanding shares of the
Company's Subsidiaries are owned directly or indirectly by the Company, free and
clear of all pledges, claims, liens, charges, encumbrances and security
interests of any kind or nature whatsoever and free of any other restriction
(including any restriction on the right to use, vote, sell or otherwise dispose
of such capital stock or other ownership interests) (collectively, "Liens"). As
used in this Agreement, the word "Subsidiary" means, with respect to any party,
any corporation or other organization, whether incorporated or unincorporated,
of which (i) such party or any other Subsidiary of such party is a general
partner or (ii) at least fifty percent (50%) of the securities or other
interests having by their terms ordinary voting power to elect a majority of the
Board of Directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or controlled
by such party or by any one or more of its Subsidiaries, or by such party and
one or more of its Subsidiaries.
2. Valid Offering of Shares. Upon issuance of the Shares pursuant to this
Agreement, the Shares will be duly and validly issued, fully paid and
non-assessable, and the Subscriber will receive good title thereto, free and
clear of all Liens, except (i) as set forth in this Agreement or the
Stockholders' Agreement dated the date among the Company, the Subscriber, and
Jerome I. Feldman (the "Stockholders' Agreement"), (ii) under the provisions of
applicable federal and foreign and state securities law, and (iii) as a result
of acts of the Subscriber. The Underlying Shares have been duly and validly
authorized and reserved for issuance, and upon issuance upon conversion of the
Shares, will be duly and validly issued, fully paid and nonassessable; and the
holder of the Shares will receive good title to the Underlying Shares, free and
clear of all Liens, except (i) as set forth in this Agreement or the
Stockholders' Agreement, (ii) under the provisions of applicable federal and
foreign and state securities law, and (iii) as a result of acts of the holder of
the Shares. Neither the Company nor its Subsidiaries has taken any action that
would result in the offering and sale of the Shares or the Underlying Shares
pursuant to this Subscription Agreement being treated as a public offering and
not a valid private offering under the law.
<PAGE>
3. Capitalization. The authorized capital stock of the Company consists of
25,000,000 shares of Common Stock, 2,800,000 shares of Class B Stock, and
10,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred
Stock"). As of the date hereof, (i) 11,654,375 shares of Common Stock are issued
and outstanding, (ii) 427,187 shares of Common Stock are issued and held in the
treasury of the Company, (iii) 450,000 shares of Class B Stock are issued and
outstanding, (iv) no shares of Class B Stock are issued and held in the treasury
of the Company, (v) no shares of Preferred Stock are issued, (vi) 950,000 shares
of Common Stock are reserved for issuance upon conversion of Class B Stock
issued or issuable upon exercise of options, (vii) 3,094,767 shares of Common
Stock are reserved for issuance upon exercise of outstanding options, (viii) no
shares of Common Stock are reserved for issuance upon the exercise of options
authorized but not granted under the Company's option plan, (ix) 500,000 shares
of Class B Stock are reserved for issuance upon exercise of options, (x) 146,654
shares of Common Stock are reserved for issuance upon exercise of warrants and
(xi) 10,000 shares of Series A Junior Participating Preferred Stock are reserved
for issuance upon exercise of the rights to purchase Preferred Stock pursuant to
the Rights Agreement between the Company (then known as National Patent
Development Corporation) and Harris Trust Company of New York, as Rights Agent,
dated as of June 23, 1997, as amended. All the outstanding shares of the
Company's capital stock are, and all shares which may be issued pursuant to the
exercise of outstanding options, warrants, and rights will be, when issued in
accordance with the respective terms thereof, duly authorized, validly issued,
fully paid and non-assessable. Other than this Subscription Agreement, there are
no options, warrants, rights, or commitments obligating the Company to issue
shares of capital stock that are not reserved for as set forth above.
4. Authority; No Conflict; Required Filings and Consents.
(1) The Company has all requisite corporate power and authority
to enter into this Agreement and the Stockholders' Agreement and
to consummate the transactions contemplated by this Agreement and
the Stockholders' Agreement, including, without limitation, the
sale of the Shares. The execution and delivery of this Agreement
and the Stockholders' Agreement and the consummation of the
transactions contemplated by this Agreement and the Stockholders'
Agreement, including, without limitation, the issuance and sale
of the Shares, by the Company have been duly authorized by all
necessary and appropriate corporate action on the part of the
Company. No stockholder action is necessary to authorize the
issuance and sale of the Shares. This Agreement and the
Stockholders' Agreement have been duly executed and delivered by
the Company and constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms.
<PAGE>
(2) The execution and delivery of this Agreement and the
Stockholders' Agreement by the Company do not, and the
consummation of the transactions contemplated hereby and thereby
will not, (i) conflict with, or result in any violation or breach
of, any provision of the Certificate of Incorporation or Bylaws
of the Company or the comparable charter or organizational
documents of any of its Subsidiaries, (ii) result in any
violation or breach of, or constitute (with or without notice or
lapse of time, or both) a default (or give rise to a right of
termination, cancellation or acceleration of any obligation or
loss of any material benefit) under, or require a consent or
waiver under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, lease, contract or other
agreement, instrument or obligation to which the Company or any
of its Subsidiaries is a party or by which any of them or any of
their properties or assets may be bound, or (iii) conflict with
or violate any permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation
applicable to the Company or any of its Subsidiaries or any of
its or their properties or assets, except in the case of clauses
(ii) and (iii) for any such conflicts, violations, defaults,
terminations, cancellations or accelerations which are not,
individually or in the aggregate, reasonably likely to have a
Material Adverse Effect.
(3) No consent, approval, order or authorization of, or
registration, declaration or filing with, any court,
administrative agency, commission or other governmental authority
or instrumentality ("Governmental Entity") is required by or with
respect to the Company or any of its Subsidiaries in connection
with the execution and delivery of this Agreement or the
consummation of the transactions contemplated in this Agreement
or the Stockholders' Agreement, except for any such consents,
approvals, orders, authorizations, registrations, declarations
and filings the absence of which is not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect.
<PAGE>
5. Public Filings; Financial Statements.
(1) None of the Company's Subsidiaries is required to file forms,
reports and documents with the Securities and Exchange Commission
("SEC") as a registrant. Since January 1, 1997, the Company has
filed with the SEC all reports, schedules, forms, statements and
other documents required to be filed by it as a registrant under
the Securities Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). Except for matters otherwise
corrected by the subsequent filing with the SEC of an appropriate
amendment prior to the date of this Agreement, such reports,
forms, and documents filed by the Company with the SEC prior to
the date of this Agreement and since January 1, 1997 (the
"Company SEC Reports") (including any financial statements filed
as a part thereof or incorporated by reference therein) (i) at
the time filed, complied in all material respects with the
applicable requirements of the Securities Act and the Exchange
Act, as the case may be, and (ii) did not, at the time they were
filed (or if amended or superseded by a filing prior to the date
of this Agreement, then on the date of such filing), contain any
untrue statement of a material fact or omit to state a material
fact required to be stated in such Company SEC Reports or
necessary in order to make the statements in such Company SEC
Reports, in the light of the circumstances under which they were
made, not misleading.
(2) Each of the consolidated financial statements (including, in
each case, any related notes) of the Company contained in the
Company SEC Reports complied as to form in all material respects
with the applicable rules and regulations of the SEC with respect
thereto; was prepared in accordance with the books of account and
other financial records of the Company and in accordance with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved (except as may
be indicated in the notes to such financial statements or, in the
case of unaudited statements, as permitted by Form 10-Q under the
Exchange Act), and fairly presented the consolidated financial
position of the Company and its Subsidiaries as of the dates, and
the consolidated results of its operations and cash flows for the
periods, indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end
adjustments which are not or are not expected to be material in
amount.
<PAGE>
6. Compliance. The Company and General Physics Corporation, a subsidiary of
the Company, hold all permits, registrations, findings of suitability, licenses,
variances, exemptions, certificates of occupancy, orders and approvals (the
"Company Permits") of all Governmental Entities necessary to conduct the
business and operations of the Company and General Physics Corporation as
currently conducted (except for such Company Permits which the failure to hold
is not, individually or in the aggregate, reasonably likely to have a Material
Adverse Effect), each of which is in full force and effect in all material
respects, and no notice of revocation has been received in respect thereof.
Except as disclosed in the Company SEC Reports or as would not reasonably be
likely to have a Material Adverse Effect, (i) the businesses of the Company and
General Physics Corporation are not being conducted in violation of any law,
ordinance or regulation of any Governmental Entity and (ii) no investigation or
review by any Governmental Entity with respect to the Company or General Physics
Corporation is pending or, to the Company's best knowledge, threatened, nor has
any Governmental Entity indicated any intention to conduct the same.
7. Brokers. None of the Company, any of its Subsidiaries nor any of their
respective officers, directors or employees have employed any broker, financial
advisor or finder, or incurred any liability for any brokerage fees,
commissions, finder's or other fees or expenses in connection with the
transactions contemplated by this Agreement.
5. Representations and Warranties of the Subscriber.
- ---------------------------------------------------------
1. Organization of the Subscriber. The Subscriber is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization and has all requisite limited partnership power and authority to
carry on its business as now being conducted. The Subscriber is duly qualified
or licensed to do business and is in good standing in each jurisdiction in which
the property owned, leased or operated by it or the nature of the business
conducted by it makes such licensing necessary, except where the failure to be
so qualified, licensed or in good standing would not have a material adverse
effect on the business, properties, condition (financial or otherwise),
prospects or results of operation of the Subscriber (a "Subscriber Material
Adverse Effect").
2. Authority; No Conflict; Required Filings and Consents.
(1) The Subscriber has all requisite power and authority to enter
into this Agreement and the Stockholders' Agreement and to
consummate the transactions contemplated by this Agreement and
the Stockholders' Agreement, including, without limitation, the
purchase of the Shares. The execution and delivery of this
Agreement and the Stockholders' Agreement and the consummation of
the transactions contemplated by this Agreement and the
Stockholders' Agreement by the Subscriber, including, without
limitation, the purchase of the Shares, have been duly authorized
by all necessary action on the part of the Subscriber. This
Agreement and the Stockholders' Agreement have been duly executed
and delivered by the Subscriber and constitute the legal, valid
and binding obligations of the Subscriber, enforceable against
the Subscriber in accordance with their respective terms.
<PAGE>
(2) The execution and delivery of this Agreement and the
Stockholders' Agreement by the Subscriber does not, and the
consummation of the transactions contemplated hereby and thereby
will not, (i) conflict with, or result in any violation or breach
of, any provision of the Certificate of Limited Partnership or
the Limited Partnership Agreement of the Subscriber, (ii) result
in any violation or breach of, or constitute (with or without
notice or lapse of time, or both) a default (or give rise to a
right of termination, cancellation or acceleration of any
obligation or loss of any material benefit) under, or require a
consent or waiver under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease,
contract or other agreement, instrument or obligation to which
the Subscriber is a party, or (iii) conflict with or violate any
permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to the
Subscriber or any of its or their properties or assets, except in
the case of clauses (ii) and (iii) for any such conflicts,
violations, defaults, terminations, cancellations or
accelerations which are not, individually or in the aggregate,
reasonably likely to have a Subscriber Material Adverse Effect.
(3) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity
is required by or with respect to the Subscriber in connection
with the execution and delivery of this Agreement or the
Stockholders' Agreement or the consummation of the transactions
contemplated in this Agreement or the Stockholders' Agreement,
except for any such consents, approvals, orders, authorizations,
registrations, declarations and filings the absence of which is
not, individually or in the aggregate, reasonably likely to have
a Subscriber Material Adverse Effect.
3. The Subscriber has sufficient knowledge and experience in financial and
business matters to be capable of evaluating the merits and risks of an
unregistered, non-liquid, high-risk investment such as an investment in the
Company and has evaluated the merits and risks of such an investment. The
Subscriber understands that the offer and sale of the Shares and Underlying
Shares have not been approved or disapproved by the SEC or any other
Governmental Entity.
4. The overall commitment of the Subscriber to investments which are not
readily marketable is not disproportionate to the net worth of the Subscriber,
and the Subscriber's acquisition of the Shares will not cause such overall
commitment to become excessive. The Subscriber understands that a total loss of
capital is possible. The Subscriber acknowledges that it is capable of bearing a
complete loss of its investment in the Company.
<PAGE>
5. The Subscriber acknowledges that neither the Company nor any person or
entity acting on its behalf has offered to sell any of the Shares to the
Subscriber by means of any form of general solicitation or advertising,
including without limitation (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media, or
broadcast over television or radio, and (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
6. The Subscriber is duly authorized and qualified to become a stockholder
of, and authorized to make its capital contributions to, the Company, and the
individual or individuals signing this Subscription Agreement and giving these
representations and warranties, as the case may be, on behalf of the Subscriber
has been duly authorized by us to do so.
7. The Subscriber is an "accredited investor" within the meaning of Rule
501 of Regulation D promulgated under the Securities Act.
8. The Subscriber is acquiring the Shares solely for the account of the
undersigned, for investment purposes only, and not with a view towards their
resale or distribution.
9. The Subscriber has not employed any broker, financial advisor or finder,
or incurred any liability for any brokerage fees, commissions, finder's or other
fees or expenses in connection with the transactions contemplated by this
Agreement.
10. The Subscriber has not taken any action that would result in the
offering of the Shares and Underlying Shares pursuant to this Subscription
Agreement being treated as a public offering and not a valid private offering
under the law.
6. Indemnification.
1. Agreement to Indemnify
<PAGE>
(1) The Company agrees to indemnify, defend and hold harmless the
Subscriber (and its respective partners (and each officer and
director thereof), members, stockholders, employees, affiliates
and permitted assigns) from and against any and all losses,
claims, liabilities, damages, deficiencies, costs or expenses
(including interest, penalties and reasonable attorneys' fees,
disbursements and related charges) (collectively, "Losses") based
upon, arising out of or otherwise in respect of (i) any
inaccuracy in or breach of any representations or warranties made
by the Company contained in this Agreement or in the
Stockholder's Agreement or the failure of the Company to perform
any of the agreements or covenants contained herein or therein or
(ii) third party claims relating to the issuance and sale of
Class B Stock, except to the extent such Losses are based upon,
arise out of or are otherwise in respect of any inaccuracy in or
breach of any representations or warranties made by the
Subscriber contained in this Agreement or in the Stockholders'
Agreement or the failure of the Subscriber to perform any of the
agreements or covenants contained herein or therein.
(2) The Subscriber agrees to indemnify, defend and hold harmless
the Company (and its respective partners (and each officer and
director thereof), members, stockholders, employees, affiliates
and permitted assigns) from and against any and all Losses based
upon, arising out of or otherwise in respect of any inaccuracy in
or breach of any representations or warranties made by the
Subscriber contained in this Agreement or in the Stockholders'
Agreement or the failure of the Subscriber to perform any of the
agreements or covenants contained herein or therein. In no event
shall the Subscriber be liable for any Losses in excess of the
Purchase Price.
2. Indemnification Procedure.
(1) A party entitled to indemnification pursuant to this Section
6 (an "Indemnified Party") shall provide written notice to the
indemnifying party (the "Indemnifying Party") of any claim of
such Indemnified Party for indemnification under this Agreement
promptly after the date on which such Indemnified Party has
actual knowledge of the existence of such claim. Such notice
shall specify the nature of such claim in reasonable detail and
the Indemnifying Party shall be given reasonable access to any
documents or properties within the control of the Indemnified
Party as may be useful or necessary in the investigation of the
basis for such claim. The failure to so notify the Indemnifying
Party shall not constitute a waiver of such claim except to the
extent that the Indemnifying Party is materially prejudiced by
such failure.
<PAGE>
(2) If any Indemnified Party seeks indemnification hereunder
based upon a claim asserted by a third party, then the
Indemnifying Party shall have the right (without prejudice to the
right of any Indemnified Party to participate at its expense
through counsel of its own choosing) to defend or prosecute such
claim at its expense and through counsel of its own choosing (and
reasonably acceptable to the Indemnified Party) if it gives
written notice of its intention to do so no later than twenty
(20) days following notice thereof by an Indemnified Party or
such shorter time period as required so that the interests of the
Indemnified Party would not be materially prejudiced as a result
of its failure to have received such notice; provided, however,
that, if the Indemnified Party shall have reasonably concluded
that separate counsel is required because a conflict of interest
would otherwise exist, the Indemnified Party shall have the right
to select separate counsel to participate in the defense of such
action on its behalf, at the expense of the Indemnifying Party;
provided further, however, that the Indemnified Party shall
always have the right to select separate counsel to participate
in the defense of such action on its behalf, at its own expense.
If the Indemnifying Party does not so choose to defend or
prosecute any such claim asserted by a third party for which any
Indemnified Party would be entitled to indemnification hereunder,
then the Indemnified Party shall be entitled to recover from the
Indemnifying Party on a monthly basis all of the reasonable
attorney's fees and other costs and expenses of litigation of any
nature whatsoever incurred in the defense of such claim. It is
understood that the Indemnifying Party shall not, in connection
with any proceeding or related proceedings in the same
jurisdiction, in any case be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel)
for all Indemnified Parties. Notwithstanding the assumption of
the defense of any claim by an Indemnifying Party, the
Indemnified Party shall have the right to approve the terms of
any settlement of a claim (which approval shall not be
unreasonably withheld or delayed) if such settlement (i) does not
include as an unconditional term the giving by the claimant or
the plaintiff to the Indemnified Party a release from all
liability in respect to such claim or (ii) requires anything from
the Indemnified Party other than the payment of money damages
which the Indemnifying Party has agreed to pay in full. The
Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent (not to be
unreasonably withheld or delayed).
<PAGE>
(3) The Indemnifying Party and the Indemnified Party shall
cooperate in furnishing evidence and testimony and in any other
manner which the other may reasonably request, and shall in all
other respects have an obligation of good faith dealing, one to
the other, so as not to unreasonably expose the other to undue
risk of loss.
3. Contribution. If any Indemnified Party is entitled to be indemnified for
Losses pursuant to the terms of Article 6 but an Indemnifying Party is
prohibited under applicable law from providing such indemnification, then to
provide for just and equitable contribution in respect of such Losses, the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, will
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party, on the one hand, and of the Indemnified Party,
on the other hand, which resulted in such Losses, as well as any other relevant
equitable considerations.
4. Distribution of Payments. The amount of any payment by the Indemnifying
Party required to be made pursuant to this Article 6 shall be made in cash in
immediately available funds to the Indemnified Party, promptly after the
determination of the amount of the required payment hereunder; provided, that
amounts for legal fees shall be advanced not less frequently than on a monthly
basis subject to an undertaking from the Indemnified Party, if it ultimately is
determined that the Indemnified Party was not entitled to such payments, to
repay the Indemnifying Party.
7. General.
a. The parties hereto agree to execute such further instruments and to take
such further action as may reasonably be necessary to carry out the intent of
this Subscription Agreement.
b. All notices and other communications hereunder shall be in writing and
shall be deemed to have been given if delivered personally or sent by facsimile
transmission, overnight courier, or certified, registered or express mail,
postage prepaid. Any such notice shall be deemed given when so delivered
personally or sent by facsimile transmission (provided that a confirmation copy
is sent by overnight courier), one day after deposit with an overnight courier,
or if mailed, three (3) days after the date of deposit in the United States
mails, as follows:
If to the Company to: GP Strategies Corporation
9 West 57th Street
New York, New York 10019
Fax: (212) 230-9545
Attn.: Chief Executive Officer
If to the Subscriber to the address set forth below its signature:
c. This Subscription Agreement and Stockholders' Agreement contain the
entire agreement between the parties hereto with respect to the matters
contemplated herein and supersedes all prior agreements or understandings among
the parties related to such matters.
d. This Subscription Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
<PAGE>
5. This Subscription Agreement may be amended, modified, superseded,
canceled, renewed or extended, and the terms or covenants hereof may be waived,
only by a written instrument executed by all of the parties hereto or, in the
case of a waiver, by the party waiving compliance. Except as otherwise
specifically provided in this Subscription Agreement, no waiver by either party
hereto of any breach by the other party hereto of any condition or provision of
this Subscription Agreement to be performed by such other party shall be deemed
a waiver of a similar or dissimilar provision or condition at the same or at any
prior or subsequent time.
6. This Subscription Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of New York, without giving effect to the principles of conflicts of
laws thereof.
7. Headings to the Sections in this Subscription Agreement are intended
solely for convenience and no provision of this Subscription Agreement is to be
construed by reference to the heading, of any Section.
8. This Subscription Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same agreement.
9. The Company hereby agrees to pay the fees and expenses, including
reasonable legal fees, accounting fees and out-of-pocket costs, incurred by the
Subscriber in connection with the purchase of the Shares.
10. Any term or provision of this Subscription Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Subscription Agreement or affecting the validity or enforceability of any of the
terms and provisions of this Subscription Agreement in any other jurisdiction.
11. This Subscription Agreement is not transferable or assignable by the
Subscriber.
12. The Subscriber hereby verifies under penalties of perjury that any
Taxpayer Identification Number or Social Security Number shown on the signature
page attached hereto is true, correct and complete.
<PAGE>
IN WITNESS WHEREOF, the Subscriber has executed this Subscription Agreement
this 11th day of February, 2000.
SUBSCRIBER:
Andersen Weinroth & Co., L.P.
By:_______________________________
Name:
Address:
13-3870916
Taxpayer ID #
ACCEPTED this 11th day of February, 2000.
GP Strategies Corporation
By:____________________________
Name: Jerome I. Feldman
Title: President and Chief Executive
Officer
