EXHIBIT 99.1
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September , 1995
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Board of Directors
▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Subscription to Purchase Shares of ▇▇▇▇, Inc. Common Stock,
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$.01 par value per share
Gentlemen:
(1) Subscription:
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The Purchaser hereby subscribes to purchase shares of the
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$.01 par value common stock of ▇▇▇▇, Inc. ("Shares") at $11.00 per Share and
hereby tenders payment for the subscribed for number of Shares by certified
check, bank draft or Federal Funds wire transfer made payable to ▇▇▇▇, Inc. (the
"Company") in the amount of $ . In connection with this subscription, the
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Purchaser hereby executes this Subscription Agreement and hereby acknowledges
that the Purchaser and/or the Purchaser's authorized representatives have
received, read, reviewed, understand and are familiar with:
(i) the Company's Annual Report (Form 10-K) filed with the Securities
and Exchange Commission for the fiscal year ended March 31, 1995;
(ii) the Company's Annual Report and Definitive Proxy Statement
distributed to shareholders in connection with the annual meeting
of shareholders held August 9, 1995;
(iii) Quarterly Report (Form 10-Q) filed with the Securities and
Exchange Commission for the quarter ended June 30, 1995;
The Purchaser further acknowledges that, except as set forth in such
reports, proxy statement, documents and other information made available by the
Company as described above, no representations or warranties have been made to
the Purchaser, or to the Purchaser's authorized representatives by the Company,
or by any person acting on behalf of the Company, with respect to the offer or
sale of the Shares and/or the economic, tax, or any other aspects or
consequences of a purchase of the Shares and/or the investment made thereby.
Further, the Purchaser has not relied upon any information concerning the
Company, written or oral, other than that contained in the aforementioned
reports, proxy statements, documents, or other information.
The Purchaser hereby acknowledges that the Purchaser and/or the
Purchaser's authorized representatives have had an opportunity to ask questions
of, and receive answers from persons acting on behalf of the Company to verify
the accuracy and completeness of the information set forth in such reports,
proxy statement, documents, and other information prior to sale and the
Purchaser hereby acknowledges that the Purchaser and/or the Purchaser's
authorized representatives have not requested the Company to provide any
additional information which the Company possesses or can acquire without
unreasonable effort or expense that is necessary to verify the accuracy and
completeness of the information made available.
(2) Purchaser's Representations and Warranties:
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The Purchaser further represents and warrants to the Company:
(a) The Shares are being issued to the Purchaser by the Company for
investment only, for the Purchaser's own account, and are not
being purchased by the Purchaser with a view to distribution of
such Shares, or for the offer and/or sale in connection with any
distribution thereof. The Purchaser is not participating,
directly or indirectly, in an underwriting of the Shares or in
any similar undertaking. The Purchaser has no present plans to
enter into any contract, undertaking, agreement or arrangement
which would entail an underwriting of such Shares or any similar
distribution thereof;
(b) The Purchaser is an "accredited investor" as that term is defined
in Rule 501 of Regulation D promulgated by the Securities and
Exchange Commission, in that
(i) the undersigned is a natural person whose net worth or
joint net worth, taking the Purchaser's spouse into consideration, at the time
of the Purchaser's purchase of these Shares herein, exceeds One Million Dollars
($1,000,000), or
(ii) the undersigned is a natural person whose income in each of
the last two years exceeded Two Hundred Thousand Dollars ($200,000) (Three
Hundred Thousand Dollars [$300,000] joint income taking the Purchaser's spouse
into consideration) and the undersigned has a reasonable expectation of reaching
the same income level in this current year; or
(iii) as otherwise defined in Regulation D.
(c) The Purchaser understands that there is no guarantee of profits
or against loss as a result of purchasing the Shares and the
Purchaser hereby states that the Purchaser can afford a complete
loss of the investment in such Shares. The Purchaser further
warrants that the Purchaser's present financial condition is such
that the Purchaser has no present or perceived future need to
dispose of any portion of the Shares to satisfy any existing or
contemplated undertaking, obligation, need or indebtedness.
Consequently, the Purchaser represents that the Purchaser has
sufficient liquid assets to pay the full purchase price of the
Shares, has adequate means for providing for the Purchaser's
current needs and possible contingencies and has no current need
to liquidate any of the Purchaser's investment in the Company.
(d) The Purchaser has been represented by such legal counsel and
other advisors, each of whom has been personally selected by the
Purchaser, as the Purchaser has found necessary to consult,
concerning the purchase of the Shares, and such representation
has included an examination of applicable documents and an
analysis of all relevant tax, financial, recording and securities
law aspects of an investment in the Shares. The Purchaser, the
Purchaser's counsel, advisors, and such other persons with whom
the Purchaser has found it necessary or advisable to consult,
have represented to the Purchaser that they have knowledge or
experience in business and financial matters to evaluate the
information set forth in the aforementioned reports, proxy
statement, documents and other information made available by the
Company, the risks associated with this investment, and to make
an informed investment decision with respect hereto. To the
extent that the Purchaser has found it necessary to consult with
any such counsel and/or advisors concerning the purchase of the
Shares, the Purchaser has relied upon their advice and counsel in
making such investment decision.
(e) The Purchaser is a resident of the jurisdiction set forth below
the Purchaser's name on the signature page of this Subscription
Agreement.
(3) Company's Representations and Warranties
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The Company represents and warrants to the Purchaser:
(a) the information contained in the reports, proxy statement,
documents and other information made available by the Company as
described in paragraph (1) of this Subscription Agreement contain
no untrue statements of material fact or omit to state a material
fact necessary in order to make the statements made therein, in
the light of the circumstances under which they were made, not
misleading;
(b) as of the date of the execution of this Subscription Agreement
and closing of the Subscription, there have been no material,
adverse changes in the Company's operations or financial
condition since the applicable dates of the aforementioned
reports, proxy statement, documents, and other information
distributed by the Company.
(4) Securities Law Restrictions on Transfers
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The Purchaser understands that the offer and/or sale of the Shares to the
Purchaser is not required to be registered under the Securities Act of 1933 (the
"1933 Act") by reason of a specific exemption for the offer and sale of the
Shares under the provisions of Regulation D promulgated by the Securities and
Exchange Commission. The Purchaser further understands that, except as provided
in paragraph (5) below, the Company has not agreed to register the Shares for
distribution and/or resale in accordance with the provisions of the 1933 Act or
the Securities Exchange Act of 1934 (the "1934 Act"), or to register the Shares
for distribution and/or resale under any applicable state securities laws.
Hence, it is the Purchaser's understanding that by virtue of the provisions of
certain rules respecting "restricted securities" promulgated under such federal
and/or state laws, unless such secondary distribution and/or resale is
registered as provided in paragraph (5) below, the Shares which the Purchaser is
purchasing by virtue of this Subscription Agreement must be held indefinitely
and may not be sold, transferred, pledged, hypothecated or otherwise encumbered
for value, unless and until such secondary distribution and/or resale is
subsequently registered under such federal and/or state securities laws or
unless an exemption from registration is available, in which case the Purchaser
still may be limited as to the amount of the Shares that may be sold,
transferred, pledged and/or encumbered for value.
The Purchaser, therefore, agrees that any certificates evidencing the
Shares received by the Purchaser by virtue of this Subscription Agreement shall
be stamped or otherwise imprinted with a conspicuous legend to give notice of
the securities law transfer restrictions set forth herein and the Purchaser
acknowledges that the Company may cause stop transfer orders to be placed on the
Purchaser's account. The legend shall be in substantially the following form:
NO SALE, OFFER TO SELL, OR TRANSFER OF THE COMMON SHARES REPRESENTED BY
THIS CERTIFICATE SHALL BE MADE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND IN COMPLIANCE
WITH ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT THE PROPOSED TRANSFER IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT AND IS IN COMPLIANCE WITH APPLICABLE
STATE SECURITIES LAWS.
(5) Registration Rights
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(a) Registration Rights; Requests for Registration.
(1) The Purchaser understands that the Company is offering,
concurrently with its sale to the Purchaser, up to Five Hundred Thousand
(500,000) Shares of its $.01 par value common stock (including the Shares
subscribed for by the Purchaser) to other "accredited investors" in a private
placement of such stock who shall be granted registration rights which are, in
substance, identical to those granted to Purchaser by this Section (5). The
holders of a majority of the aggregate number of shares actually sold in such
offering ("Registerable Shares") shall be entitled at any time after the
expiration of the six month period immediately following September 30, 1995 to
make a written request that the Company register for resale under the 1933 Act,
all or any number of the Registerable Shares, provided that with respect to any
such request, the Company shall not be required by the registration rights
granted under this section (5) to file a Registration Statement or cause a filed
Registration Statement to become effective if such filing, in compliance with
and pursuant to the regulations and rules contained in Regulation S-X dealing
with the age of financial statements at the effective date of a registration
statement, would require the Company to include in such Registration Statement
audited financial statements of the Company which, but for such request, would
not otherwise have been required, in compliance with such applicable rules and
regulations, to have been furnished by the Company in the normal course of its
business and operations.
Within 30 days after receipt of any such request, the Company
will give written notice of such request to all other holders of Registerable
Shares and will include in such registration all Registerable Shares with
respect to which the Company has received written requests for inclusion therein
within 15 days after the Company's notice is mailed. The registration requested
pursuant to this paragraph (5)(a)(1) is referred to herein as the "Demand
Registration".
For purposes of this right to demand registration, a registration
will not count as the Demand Registration until (i) it has become effective and
(ii) the holders of the Registerable Shares are able to sell the Registerable
Shares requested to be included in such registration. The Demand Registration
shall be made on a short registration form (on Form S-3 or any similar short
registration form) whenever the Company is permitted under applicable rules
promulgated by the Securities and Exchange Commission to use such short form.
(2) Whenever the Company proposes to register (either on its
own behalf or on behalf of holders of its equity securities other than the
holders of Registerable Shares in their capacity as holders of the Registerable
Shares) any of its equity securities under the 1933 Act (other than pursuant to
the Demand Registration or registration of equity securities to be sold under
one or more of the Company's employee benefit plans on Form S-8), and the
registration form to be used may be used for a registration of the Registerable
Shares, the Company will give prompt written notice to all holders of the
Registerable Shares of its intention to effect such a registration and will
include in such registration all Registerable Shares with respect to which the
Company has received written request by the holders thereof for inclusion
therein within 15 days after the mailing of the Company's notice. Any
registrations requested pursuant to this paragraph (5)(a)(2) are referred to
herein as "Piggyback Registrations".
(b) The Demand Registration
(1) Priority of Demand Registration
The Company will not include in the Demand Registration any other
of its equity securities without the written consent of the holders of a
majority of the Registerable Shares requesting such registration. If a Demand
Registration is an underwritten offering, and the managing underwriters of such
offering advise the Company in writing that, in their opinion, the number of
Registerable Shares and other equity securities to be included exceeds the
number of Registerable Shares and other equity securities which can be sold in
such offering, the Company will include in such registration prior to the
inclusion of any other of the Company's equity securities, the number of
Registerable Shares requested to be included which in the opinion of such
underwriters can be sold, pro rata among the respective holders based on a
fraction, with respect to each holder, the numerator of which is the number of
Registerable Shares requested to be sold by such holder, and the denominator of
which is the number of Registerable Shares requested to be included in such
Demand Registration by all holders of the Registerable Shares.
(2) Restrictions on Demand Registration.
The Company will not be obligated to effect more than two Demand
Registrations and shall be so obligated only if the holders of the majority of
the Registerable Shares so request such registration. Further, the Company will
not be obligated to effect the Demand Registration within three months after the
effective date of a registration in which the holders of the Registerable Shares
exercised their "piggyback registration" rights pursuant to paragraph (5)(a)(2)
hereof.
(3) Selection of Underwriters
The Company shall have the exclusive right to select the
underwriter(s), including the exclusive right to designate the managing
underwriter(s), with respect to the Demand Registration offering. Nothing
herein shall prevent the holders of the Registerable Shares who have requested
the Demand Registration from submitting a recommendation(s) with respect to any
underwriters and/or managing underwriters.
(4) Expenses of the Demand Registration
The Company shall pay all expenses incident to the Demand
Registration, including, without limitation, all registration and filing fees,
fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, and fees and disbursements of counsel
for the Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other persons retained by the Company
in connection with the Demand Registration. The holders of the Registerable
Shares requesting the Demand Registration will be required to pay their pro rata
share of any underwriter and/or brokerage commissions, attributable to the
inclusion of the Registerable Shares in the Demand Registration.
(c) Piggyback Registration.
(1) Priority on Primary Registrations.
If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, and the managing underwriters advise the
Company in writing that, in their opinion, the number of equity securities
requested to be included in such registration exceeds the number which can be
sold in such offering, the Company will include in such registration (i) the
equity securities the Company proposes to sell, (ii) the Registerable Shares
requested to be included in such Piggyback Registration, pro rata among the
holders of such Registerable Shares based upon a fraction, with respect to each
holder, the numerator of which is the number of Registerable Shares requested to
be sold by such holder, and the denominator of which is the total number of
Registerable Shares requested to be included in such Piggyback Registration by
all holders of the Registerable Shares and (iii) any other equity securities
requested to be included in such registration.
(2) Priority on Secondary Registrations.
If a Piggyback Registration is an underwritten secondary
registration on behalf of holders of the Company's equity securities (other than
holders of the Registerable Shares in their capacity as holders of the
Registerable Shares), and the managing underwriters advise the Company in
writing that, in their opinion, the number of equity securities requested to be
included in such registration exceeds the number which can be sold in such
offering, the Company will include in such registration (i) the equity
securities to be sold in the secondary offering by the holders of the Company's
equity securities, (ii) the Registerable Shares requested to be included in such
Piggyback Registration, pro rata among the holders thereof based upon a
fraction, with respect to each holder, the numerator of which is the number of
Registerable Shares requested to be sold by such holder, and the denominator of
which is the number of Registerable Shares requested to be included in such
Piggyback Registration by all holders of Registerable Shares, and (iii) any
other equity securities requested to be included in such registration.
(3) Expenses of Piggyback Registrations
The Company shall pay all expenses incident to the Piggyback
Registration, including, without limitation, all registration and filing fees,
fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, and fees and disbursements of counsel
for the Company and all independent, certified public accountants, underwriters
(excluding discounts and commissions) and any other persons retained by the
Company in connection with such Piggyback Registrations. The holders of the
Registerable Shares requesting the Piggyback Registration will be required to
pay their pro rata share of any underwriter and/or brokerage commissions
attributable to the inclusion of the Registerable Shares in the Piggyback
Registration.
(d) Other Registrations
If the Company has previously filed a registration statement with
respect to the Registerable Shares pursuant to a Demand Registration or pursuant
to a Piggyback Registration and if such previous registration has not been
withdrawn or abandoned, the Company will not file or cause to be effective any
other registration statement with respect to any of its equity securities or
securities convertible or exchangeable into or exercisable for its equity
securities under the 1933 Act (except with respect to securities to be sold
under other demand registration rights granted to one or more accredited
investors or under any of the Company's employee benefit plans registered on
Form S-8), whether on its own behalf or at the request of any holder or holders
of such securities, until a period of at least six months has elapsed from the
effective date of such previous Demand or Piggyback Registration.
(e) Holdback Agreement.
(1) Each holder of Registerable Shares agrees not to effect any
public sale or distribution of equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and the ninety day period beginning on the
effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration (except as part of such underwritten Registration),
unless the underwriters managing the registered Demand or Piggyback public
offering otherwise agree. This restriction shall not apply in the case of
Registerable Shares which have been registered previously in either the Demand
or a Piggyback Registration.
(2) The Company agrees not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and the ninety day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration (except as part
of such underwritten registration or with respect to sales of its securities
under any employee benefit plan pursuant to registration on Form S-8), unless
the underwriters managing the registered Demand or Piggyback public offering
otherwise agree.
(f) Scope of Registration Rights; Registration Procedures.
The Company's registration obligations under this Subscription
Agreement are "best efforts" obligations only. Whenever the holders of
Registerable Shares have requested that any Registerable Shares be registered
(either Demand or Piggyback), the Company will use its best efforts to effect
the registration and the sale of such Registerable Shares with the intended
method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(1) Prepare and file with the Securities and Exchange
Commission a registration statement (which shall be, to the extent the Company
is permitted to do so under applicable rules promulgated by the Securities and
Exchange Commission, a short-form registration statement) with respect to such
Registerable Shares and use its best efforts to cause such registration
statement to become effective;
(2) Prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective under Rule 415 promulgated by the Securities
and Exchange Commission and comply with the provisions of the 1933 Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended method of
distribution by the sellers thereof set forth in such registration statement;
(3) Furnish to each seller of the Registerable Shares such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus, if any) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registerable
Shares owned by such seller;
(4) Use its best efforts to register or qualify such
Registerable Shares in such jurisdictions as any seller reasonably requests and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registerable Shares owned by such seller provided that the
Company will not be required to
(i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this
subparagraph;
(ii) subject itself to taxation in any jurisdiction where
it would not otherwise be subject to taxation but for this subparagraph;
(iii) consent to general service of process in any
jurisdiction where it would not otherwise be subject to process but for
this subparagraph;
(5) notify each seller of such Registerable Shares, at any time
when a prospectus relating thereto is required to be delivered under the 1933
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading, and, at the request of
any such seller, the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registerable Shares, such prospectus will not contain an untrue statement of
material fact or omit to state any fact necessary to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading;
(6) enter into any such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of the Registerable Shares being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
registered Registerable Shares;
(7) make available for inspection by any seller of the
Registerable Shares, any underwriter participating in any disposition pursuant
to such registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors, employees and independent accountants to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement.
(g) Indemnification.
(1) The Company agrees to indemnify, to the extent permitted by
law, each holder of the Registerable Shares, its officers and directors and each
person who controls such holder (within the meaning of the 1933 Act) against all
losses, claims, damages, liabilities and expenses caused by any untrue statement
of material fact contained in any registration statement, prospectus or
preliminary prospectus or any amendment thereto or supplement thereto or any
omission of a material fact required to be stated therein or necessary to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading except insofar as the same are caused by or contained
in any information furnished in writing to the Company by such holder expressly
for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments of supplements thereto
after the Company has furnished such holder with a sufficient number of copies
of the same;
(2) In connection with any registration statement in which a
holder of Registerable Shares is participating, each such holder will furnish to
the Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify the Company, its
directors and officers and each person who controls the Company (within the
meaning of the 1933 Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any statement
thereof or supplement thereto or any omission of a material fact required to be
stated therein or necessary to make the statements made therein, in the light of
the circumstances under which they were made, not misleading, but only to the
extent that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder; provided that the obligation
to indemnify as set forth herein will be several, not joint and several, among
such holders of Registerable Shares and the liability of each such holder of
Registerable Shares will be in proportion to and limited to the net amount
received by such holder from the sale of the Registerable Shares pursuant to
such registration statement;
(3) Any person entitled to indemnification hereunder will
(i) give prompt written notice to the indemnifying party
of any claim with respect to which such person seeks indemnification, and
(ii) unless in such indemnified party's reasonable
judgment, a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit the
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any liability for
any settlement made by the indemnified party without its consent, but
such consent will not be unreasonably withheld. An indemnifying party
who is not entitled to or elects not to assume the defense of the claim,
will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with
respect to such claim unless in the reasonable judgment of any
indemnified party, a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect
to such claim.
(6) Notices
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Any notices or other communication required or permitted herein shall be
sufficiently given if sent by registered or certified mail, postage prepaid,
return receipt requested, and if to the Company, to the address set forth above,
and if to the Purchaser, to the address set forth below the Purchaser's
signature hereto, or to such other addresses as the Company or the Purchaser
shall designate to the other by notice in writing.
(7) Successors and Assigns
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This subscription for Shares and Subscription Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and to the successors
and assigns of the Company and to the personal and legal representatives of the
Purchaser, and to the extent applicable, his spouse and children.
(8) Applicable Law
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Except when an interpretation of federal and/or state securities laws is
necessary or such law governs, this Subscription Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
(9) Certification with Respect to Federal Dividend and Interest Payments;
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Back-up Withholding
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Under penalties of perjury, the Purchaser hereby certified to the Company
as follows:
(a) The number shown below is the Purchaser's Social
Security or other taxpayer identification number and such number is the
Purchaser's correct taxpayer identification number; and
(b) the Purchaser is not subject to back-up withholding
either because the Purchaser has not been notified by the Internal
Revenue Service that the Purchaser is subject to back-up withholding as a
result of failure to report all interest or dividends, or the Internal
Revenue Service has notified the Purchaser that the Purchaser is no
longer subject to back-up withholding.
IN WITNESS WHEREOF, the Purchaser has executed and delivered this
Subscription Agreement as of this day of September, 1995.
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Subscription: ( ) Shares of the $.01 par value common
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stock of ▇▇▇▇, Inc. at $11.00 per Share.
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Signature of Subscriber Residence and/or Business Address
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Typed or Printed Name City State Zip
Social Security or Tax
Identification No. of Subscriber
ACCEPTED:
▇▇▇▇, INC.
Dated: By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
President and Chief Executive
Officer