SUBSCRIPTION AGREEMENT
Agreement (this "Agreement"), made this ---- day of -------------, 2001 by
and between PENSAR ACQUISITION CORP. a Delaware corporation (the "Company")
and ---------------------------------------------- ("Subscriber"). In
consideration of the mutual promises and covenants herein contained, the parties
hereto (the "Parties") agree as follows:
ARTICLE I
SUBSCRIPTION
1.01 Subscription Offer. Subject to the terms and conditions hereof and to
acceptance by the Company, the Subscriber hereby irrevocably offers to purchase
------------------ Units (the "Securities"), each Unit consisting of one share
of Common Stock and one Class "A" Warrant and one Class "B" Warrant at a
purchase at a price of $.25 per Unit, for a total purchase price of
$-------------------. The price is payable in full by check payable to
"Xxxxxxxxxx Bank, on behalf of Managed Acquisition Corp." or by wire transfer or
money order.
1.02 Acceptance of Subscription. The Company reserves the right to reject
the Subscriber's offer in whole or in part, for any reason, and to allocate less
than the maximum number of Securities the Subscriber hereby offers to purchase.
Any sale of Securities to the Subscriber shall not be deemed to occur until the
Subscribers' offer is accepted in writing by the Company. The Subscriber shall
not have any recourse against the Company if a purchase offer is rejected in
whole or in part. The Company shall reasonably notify the Subscriber in writing
of the acceptance of a purchase offer. If the offer is rejected in whole or in
part, the Company will promptly return to the Subscriber, without deduction or
interest, all or a ratable portion of the subscription price, as the case may
be, together with all executed documents tendered by the Subscriber. If the
purchase offer is rejected in part only, the Subscriber shall immediately
complete, execute, and deliver to the Company new subscription documents for the
appropriate reduced amount.
1.03 Escrow of Funds and Certificate and Restriction on Transfer of
Securities. The Securities have been registered under the Securities Act of 1933
(the "Act") pursuant to Rule 419 thereto.
Rule 419 requires that before the Securities can be released, the Company
must first execute an agreement to acquire a business. The agreement must
provide for the acquisition of a business or assets for which the fair value of
the business represents at least 80% of the maximum offering proceeds, including
funds received or to be received from the exercise of warrants.
Once the acquisition agreement has been executed, Rule 419 requires the
Company to update the registration statement with a post-effective amendment.
The post-effective amendment must contain information about:
-- the proposed acquisition candidate and its business, including audited
financial statements;
-- the results of the offering; and
-- the use of the funds disbursed from the escrow account.
1.04 The reconfirmation offering.
The reconfirmation offer must commence within five business days after the
effective date of the post-effective amendment and must include the following
conditions:
-- the prospectus contained in the post-effective amendment will be
sent to each Subscriber within five business days after the
effective date of the post-effective amendment;
-- each Subscriber will have no fewer than 20, and no more than 45,
business days from the effective date of the post-effective
amendment to notify the Company in writing that he or she elects
to remain a Subscriber;
-- if the Company does not receive written notification from any
Subscriber within 45 business days following the effective date,
the Subscriber's escrowed securities will be returned to the
Company and the Subscriber's escrowed funds to the Subscriber;
-- unless Subscribers representing 80% of the maximum offering
proceeds elect to remain Subscribers, the acquisition of the
target business would be prevented, deposited securities held in
escrow will be returned to the Company and the funds to the
Subscribers; and
-- if a consummated acquisition has not occurred within 18 months
from the date of this prospectus, the deposited securities held
in the escrow account will be returned to the Company and the
funds to the Subscribers.
The Securities may be released to Subscribers after the escrow agent has
received a signed representation from the Company and any other evidence
acceptable by the escrow agent that:
-- the Company has executed an agreement for the acquisition of a
business for which the value of the business represents at least
80% of the maximum offering proceeds and the Company has filed
the required post-effective amendment;
-- the post-effective amendment has been declared effective;
-- the reconfirmation offer has been completed;
-- the Company has satisfied all of the prescribed conditions of the
reconfirmation offer; and
-- the acquisition of the business with the fair value of at least
80% of the maximum proceeds has been consummated.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01 Status of Subscriber. The Subscriber, if an individual, is at least 21
years of age. If an association, each individual of the association is at least
21 years of age.
2.02 Access to Information. Because of the Subscriber's business or
financial experience or his professional advisors who are unaffiliated with and
who are not compensated by the Company, or any affiliate thereof, the Subscriber
has the capacity to protect his own interests in connection with the offer and
sale of the Securities.
The Subscriber represents has received and retained the Company's
prospectus (the "Prospectus") and has carefully read and understood it,
particularly the section entitled "Risk Factors."
2.03 Understanding of Investment Risks. The Subscriber understands that
there is no market for the Securities and no assurance that a market will
develop, and that realization of the objectives of the Company is subject to
significant economic and business risks as set forth in the Prospectus.
2.04 Residence of the Subscriber. The residence of the Subscriber set forth
below is the true and correct residence of Subscriber and the Subscriber has no
present intention of becoming a resident of domiciliary of any other state,
country, or jurisdiction.
2.05 Further Assurance. Subscriber will execute and deliver to the Company
any document, or do any other act or thing, which the Company may reasonably
request in connection with the acquisition of the Securities.
2.06 Ability to Bear Economic Risk. The Subscriber is an "accredited
investor" as defined in rules to the Act or is otherwise qualified under the
jurisdiction of the Subscriber's residence to make this investment. The
Subscriber is able to bear the economic risk of an investment in the Securities
and to maintain the investment in the Securities for an indefinite period of
time, and, further, could bear a total loss of the investment and not change the
Subscriber's standard of living which existed at the time of the investment.
2.07 For Partnership, Corporations, Trusts or Other Entities Only. If the
Subscriber is a partnership, corporation, trust, or other entity:
The Subscriber has the full power and authority to execute this
subscription Agreement on behalf of the entity and to make the representations
and warranties made herein on its behalf and this investment in the Company has
been affirmatively authorized by the governing board of the entity and is not
prohibited by the governing documents of the entity.
2.08 The Subscriber represents that he/she/it is
(a) a sophisticated purchaser, or
(b) a spouse, parent, brother, sister or child of a senior officer or
director of the issuer, or of an affiliate of the issuer, or
(c) a company, all the voting securities of which are beneficially owned
by one or more of a senior officer or director of the Company, or of
an affiliate of the Company, or a spouse, parent, brother, sister or
child of a senior officer or director of the Company, or of an
affiliate of the Company, and
The Subscriber further represents that he/she/it
(a) is purchasing the Units as principal and
(b) has received and read the Prospectus relating to the sale of the Units
by the Company.
ARTICLE III
MISCELLANEOUS PROVISIONS
3.01 Captions and Headings. The Article and Section headings throughout
this Agreement are for convenience of reference only and shall in no way be
deemed to define, limit or add to any provision of this Agreement.
3.02 Entire Agreement; Amendment. This Agreement states the entire
agreement and understanding of the Parties and shall supersede all prior
agreements and understandings. No amendment of the Agreement shall be made
without the express written consent of the Parties.
3.03 Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect any other provision hereof, which
shall be construed in all respects as if such invalid or unenforceable provision
were omitted.
3.04 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware for contracts made and to be
performed within the State of Delaware.
3.05 Notices. All notices, requests, demands, consents, and other
communications hereunder shall be transmitted in writing and shall be deemed to
have been duly given when hand-delivered or sent by certified mail, postage
prepaid, with return receipt requested, addressed to the Parties as follows: to
the Company and to the Subscriber, at the address indicated below. Any Party may
change his/her/its address for purposes of this Section by giving notice as
provided herein.
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and
year first above written.
PENSAR ACQUISITION CORP.
The Subscriber
---------------------- By:
---------------------- ----------------------------
---------------------- Authorized Officer
----------------------
(Address)
