EXHIBIT 7.4
SUBSCRIPTION AGREEMENT
This Subscription Agreement is made by and between The Wiser Oil Company, a
Delaware corporation (the "Company") and the undersigned prospective purchaser
who is subscribing hereby for shares of the Company's Series C Cumulative
Convertible Preferred Stock (the "Preferred Stock"), par value $10.00 per
Preferred Share.
In consideration of the Company's agreement to accept the undersigned as a
securityholder of the Company upon the terms and conditions set forth herein,
the undersigned agrees and represents as follows:
A. SUBSCRIPTION
1. The undersigned hereby irrevocably subscribes for and agrees to
purchase the number of Preferred Shares indicated on the signature page below at
$25.00 per Preferred Share. Simultaneously with the execution of this
Subscription Agreement, the undersigned is paying and delivering to the Company
the Total Purchase Price set forth on the signature page below, in the form of a
check or wire transfer to the account specified on the signature page (the
"Payment") payable to the Company, in payment of the Preferred Shares.
2. Upon receipt by the Company of the payment provided for in section (1)
for Preferred Shares to be purchased by the subscribers whose subscriptions are
accepted (each, a "Purchaser" and, collectively, the "Purchasers"), the Company
will issue to each Purchaser certificates representing the Preferred Shares
purchased in the name of each such Purchaser, and the name of such Purchaser
will be registered on the books of the Company as the record owner of such
shares of Common Stock.
B. INVESTOR REPRESENTATIONS AND WARRANTIES
1. The undersigned hereby represents and warrants to, and agrees with the
Company, as follows:
(a) The Preferred Shares are being purchased for the undersigned's own
account or one of its affiliated funds, for investment purposes only, and
not for the account of any other person, and not with a view to
distribution, assignment, or resale to others or to fractionalization in
whole or in part and that the offering and sale of the Preferred Shares is
intended to be exempt from registration under the Securities Act of 1933
(the "Act") by virtue of Section 4(2) of the Act and the provisions of
Regulation D promulgated thereunder ("Regulation D").
(b) The undersigned is an "accredited investor" as such term is
defined in Regulation D under the Securities Act of 1933, as amended, a
copy of which definition is attached hereto as Exhibit A.
(c) The Company has made available to the undersigned all documents
and information that the undersigned has requested relating to an
investment in the Company.
(d) The undersigned recognizes that investment in the Company involves
substantial risks, and he has taken full cognizance of and understands all
of the risks related to the purchase of Preferred Shares, including the
potential for the Preferred Shares to lose all or substantially all of
their value.
(e) The undersigned has carefully considered and has, to the extent
the undersigned believes such discussion necessary, discussed with the
undersigned's professional legal, tax and financial advisers the
suitability of an investment in the Company for the undersigned's
particular tax and financial situation and the undersigned has determined
that the Preferred Shares are a suitable investment for the undersigned.
(e) All information that the undersigned has provided to the Company
concerning the undersigned and the undersigned's financial position is
correct and complete as the date set forth below, and if there should be
any change in such information prior to the undersigned's acceptance as a
securityholder of the Company the undersigned will immediately provide such
information to the Company and will promptly send confirmation of such
information to the Company.
(f) If this Subscription Agreement is executed and delivered on behalf
of a partnership, corporation, trust, or estate, (i) the person executing
this Subscription Agreement on behalf of the undersigned has been duly
authorized and is duly qualified (A) to execute and deliver this
Subscription Agreement and all other instruments executed and delivered on
behalf of such partnership, corporation, trust, or estate in connection
with the purchase of the Preferred Shares and (B) to purchase and hold
Preferred Shares, and (ii) the signature of the person executing this
Subscription Agreement on behalf of the undersigned is binding upon such
partnership, corporation, trust, or estate.
2. The foregoing representations and warranties are true and accurate as
of the date hereof, shall be true and accurate as of the date of the acceptance
hereof by the Company and shall survive thereafter. If such representations and
warranties shall not be true and accurate in any respect, the undersigned will,
prior to such acceptance, given written notice of such fact to the Company,
specifying which representations and warranties are not true and accurate and
the reasons therefor.
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3. The undersigned shall indemnify and hold harmless the Company, or any
of its agents, officers, employees, registered representatives, directors, or
control persons of any such entity who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of or
arising from any actual or alleged misrepresentation or misstatement of facts or
omission to represent or state facts made by the undersigned to the Company
concerning himself or his financial position in connection with the offering or
sale of the Preferred Shares which is not remedied by timely notice to the
Company as provided above, against losses, liabilities and expenses for which
the Company or any of its agents, officers, employees, registered
representatives, directors, or control persons of any such entity have not
otherwise been reimbursed (including attorneys' fees, judgments, fines and
amounts paid in settlement) as actually and reasonably incurred by such person
or entity in connection with such action, suit, or proceeding.
C. UNDERSTANDINGS
1. The undersigned understands, acknowledges and agrees with the Company
as follows:
(a) This subscription may be rejected, in whole or in part, by the
Company in its sole discretion.
(b) This subscription is and shall be irrevocable, except that the
undersigned shall have no obligations hereunder in the event that (1) this
subscription is rejected for any reason or (2) the purchase and sale of
Preferred Shares is not consummated.
(c) No federal or state agency has made any finding or determination
as to the fairness of this offering for investment, nor any recommendation
or endorsement of the shares.
(d) There is no public market for the Preferred Shares and there is no
certainty that such a market will ever develop. There can be no assurance
that the undersigned will be able to sell or dispose of his Preferred
Shares. Moreover, no assignment, sale, transfer, exchange or other
disposition of the Preferred Shares can be made other than in accordance
with all applicable securities laws.
(e) There can be no assurance as to the federal or state tax results
of an investment in Preferred Shares.
(f) The undersigned has such knowledge and experience in financial and
business matters that the undersigned is capable of evaluating the merits
and risks of investment in the Company and of making an informed investment
decision.
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(g) The undersigned has had prior personal or business relationships
with the Company or its officers or directors or by reason of the
undersigned's business or financial experience, has the capacity to protect
the undersigned's own interest in connection with this transaction.
2. The representations, warranties, understandings, acknowledgments and
agreements in this Agreement are true and accurate as of the date hereof, shall
be true and accurate as of the date of the acceptance hereof by the Company and
shall survive thereafter.
D. MISCELLANEOUS
1. Neither this Subscription Agreement nor any provisions hereof shall be
waived, modified, changed, discharged, terminated, revoked, or canceled except
by an instrument in writing signed by the party against whom any change,
discharge, or termination is sought.
2. Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
or sent by registered mail, return receipt requested, addressed to the other
party at the address provided in this Subscription Agreement, or to such other
address furnished by notice given in accordance with this Article D.
3. Failure of the Company to exercise any right or remedy under this
Subscription Agreement or any other agreement between the Company and the
undersigned, or otherwise, or delay by the Company in exercising such right or
remedy, will not operate as a waiver thereof. No waiver by the Company will be
effective unless and until it is in writing and signed by the Company.
4. This Subscription Agreement shall be enforced, governed and construed
in all respects in accordance with the laws of the State of Delaware, and shall
be binding upon the undersigned, the undersigned's heirs, estate, legal
representatives, successors and assigns and shall inure to the benefit of the
Company, and its successors and assigns.
5. In the event that any provision of this Subscription Agreement is
invalid or unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any provision hereof which may prove invalid or unenforceable under any
law shall not affect the validity or enforceability of any other provision
hereof.
6. This Subscription Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes any and
all prior or contemporaneous representations, warranties, agreements and
understandings in connection therewith.
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SUBSCRIPTION AGREEMENT SIGNATURE PAGE
This page constitutes the Signature Page for the Subscription Agreement.
The undersigned represents to the Company that (a) the information contained
herein is complete and accurate on the date hereof and may be relied upon by you
and (b) the undersigned will notify you immediately of any change in any of such
information occurring prior to the acceptance of the subscription and will
promptly send you written confirmation of such change. The undersigned hereby
certifies that he has read and understands this Subscription Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this 26th day of May, 2000.
420,000
-------
Number of Preferred Shares Subscribed NAME OF PURCHASER (print below)
for at $25.00 per Preferred Share
Dimeling, Xxxxxxxxx & Park
$ 10,500,000
------------ /s/ Xxxxxx X. Xxxx
Total Purchase Price ----------------------------------
delivered herewith Signature
23-2460636
----------------------------------
Tax Identification Number of
Purchaser
Purchaser's Mailing Address
0000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Check here if payment is being made by wire transfer: [x]
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EXHIBIT A
Accredited investor. "Accredited investor" shall mean any person who comes
within any of the following categories, or who the issuer reasonably believes
comes within any of the following categories, at the time of the sale of the
securities to that person:
(1) Any bank as defined in section 3(a)(2) of the Securities Act of 1933,
as amended (the "Act"), or any savings and loan association or other institution
as defined in section 3(a)(5)(A) of the Act whether acting in its individual or
fiduciary capacity; any banker or dealer registered pursuant to section 15 of
the Securities Exchange Act of 1934; any insurance company as defined in section
2(13) of the Act; any investment company registered under the Investment Company
Act of 1940 or a business development company as defined in section 2(a)(48) of
that Act; any Small Business Investment Company licensed by the U.S. Small
Business Administration under section 301(c) or (d) of the Small Business
Investment Act of 1958; any plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, if such plan has total
assets in excess of $5,000,000; any employee benefit plan within the meaning of
the Employee Retirement Income Security Act of 1974 if the investment decision
is made by a plan fiduciary, as defined in section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with investment decisions made solely
by persons that are accredited investors;
(2) Any private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
(3) Any organization described in section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or partnership, not
formed for the specific purpose of acquiring the securities offered, with total
assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the issuer of
the securities being offered or sold, or any director, executive officer, or
general partner of a general partner of that issuer;
(5) Any natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of his purchase exceeds $1,000,000;
(6) Any natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with that person's spouse
in excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year;
(7) Any trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in (S)230.506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited investors.
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