EXHIBIT 4.3
EXHIBIT D
SUBSCRIPTION AGREEMENT
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In Connection with the Private Placement Memorandum
of
PERARDUA CORPORATION
August 20, 1996
THIS SUBSCRIPTION AGREEMENT (the "Agreement"), made this _____ day of
___________________, 1996 by and between PERARDUA CORPORATION, a Missouri
corporation (the "Company"), and the undersigned individual, corporation,
partnership, trust or employee benefit plan executing this Agreement as the
investor (the "Investor"), provides as follows:
W I T N E S S E T H:
WHEREAS, the Company wishes to sell to the Investor and the Investor
wishes to purchase from the Company shares of the Company's Common Stock, par
value $0.001 per share (the "Shares"), at a price of $1.60 per Share with the
number of Shares subscribed for being specified on the signature page hereof
subject to a minimum purchase of 31,250 Shares unless waived by the Company.
WHEREAS, the Investor has been furnished with the Confidential Private
Placement Memorandum dated August 20, 1996 and Addendum No. 1 thereto dated
September 18, 1996 (collectively referred to hereinafter as the "Memorandum")
which has been prepared by the Company in connection with its offering of Shares
(the "Offering"). Unless (i) otherwise defined herein or (ii) the context
otherwise requires, capitalized terms used herein shall have the same meanings
given them in the Memorandum.
NOW, THEREFORE, in consideration of the foregoing and the promises and
covenants contained in this Agreement, the Company and the Investor hereby agree
as follows:
1. Sale of Shares. In accordance with the terms and conditions of this
Agreement, the Company hereby agrees to sell to the Investor, and the Investor
hereby agrees to purchase from the Company, on or before the Closing Date, the
number of Shares indicated on the signature page hereof.
2. Purchase Price and Subscription Check. The purchase price for each
share of Common Stock shall be $1.60. The Investor shall pay such purchase price
by check made payable to "PerArdua Corporation" and delivered with this executed
Agreement and a completed Purchaser Questionnaire. The Company's sale of the
Shares is contingent upon receipt and acceptance of subscriptions for all
665,000 Shares offered in the Offering. Pending receipt and acceptance of such
subscriptions, the Investor's check will be held uncashed. On the Closing Date,
the Investor's check will be cashed and the funds will be disbursed to the
Company if such subscriptions have been received and accepted, or promptly
returned to the Investor without interest if such subscriptions have not been
received and accepted.
3. Representations of Investor. The Investor represents and warrants to
the Company that:
3.1 He, she or it is acquiring the Shares for his, her or its own
account for investment and not with a view to resale or distribution.
3.2 He, she or it: (i) has been furnished, has carefully read,
and has relied solely (except as indicated in subsection (ii) below) on the
information contained in the Memorandum (including all exhibits and all
amendments thereto, if any); (ii) has been given the opportunity to ask
questions of, and receive answers from, the Company concerning the terms and
conditions of the Offering, the Shares, the Company and its business and to
obtain such additional information that was otherwise provided, and he, she or
it has not been furnished any other literature relating to the Offering, the
Shares, the Company or its business.
3.3 He, she or it recognizes (i) that purchase of the Shares
involves a high degree of risk and has taken full cognizance of and understands
such risks, including those set forth in the section entitled "Risk Factors"
included in the Memorandum, and (ii) that the Company has relied on the
representations of the Investor as set forth in this Section 3 and in the
Purchaser Questionnaire attached as Appendix A hereto and made a part hereof in
determining materiality for purposes of the disclosure obligations of the
Company under federal and state securities laws.
3.4 He, she or it represents that (i) he, she or it is an
"accredited investor" as such term is defined in Rule 501 under the Securities
Act of 1933, as amended (the "1933 Act"), (ii) he, she or it meets the
suitability standards set forth in the section entitled "Who Should Invest and
How to Invest" in the Memorandum, (ii) he, she or it can bear the risk of losing
the entire investment in the Shares; (iii) the overall commitment of the
Investor to other investments which are not readily marketable is not
disproportionate to his, her or its net worth and the investment in the Shares
will not cause such overall commitment to become excessive; (iv) he, she or it
has adequate means of providing for current needs and personal contingencies and
has no need for liquidity in the investment in the Shares; and (v) he, she or it
has sufficient knowledge and experience in financial and business matters such
that he, she or it is capable, either alone, or together with one or more
advisors (which advisors advised him, her or it in connection with the
investment in the Shares), of evaluating the risks and merits of investing in
the Shares.
3.5 All information that he, she or it has provided to the
Company concerning himself, herself or itself and his, her or its financial
position is correct and complete as of the date hereof, and if there should be
any material change in such information prior to the issuance to him, her or it
of the Shares, he, she or it will immediately notify the Company.
3.6 He, she or it fully understands and agrees that he, she or it
must bear the economic risk of his, her or its purchase of Shares for an
indefinite period of time because, among other reasons, the Shares have not been
registered under the of 1933 Act, or the securities laws of any state, and
therefore, cannot be sold, pledged, assigned or otherwise disposed of unless
they are subsequently registered under the 1933 Act and applicable state
securities laws or an exemption from such registration is available. He, she or
it further understands and agrees that the Company will not
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honor any attempt by him, her or it to sell, pledge, transfer or otherwise
dispose of the Shares, in the absence of an effective registration statement for
the Shares under the 1933 Act and applicable state securities laws or an opinion
of counsel, satisfactory in form and substance to the Company and its counsel,
that an exemption is available therefrom.
3.7 The Investor certifies that he, she or it has answered the
questions contained in the Purchaser Questionnaire attached hereto as Appendix A
and made a part hereof to the best of his, her or its knowledge and that the
answers thereto are complete and accurate. The Investor understands and agrees
that, although such answers will be kept strictly confidential, the Company may
present such Purchaser Questionnaire to such parties as it deems advisable if
called upon to establish the availability under the federal or state securities
laws of an exemption from registration. The Investor agrees to indemnify the
Company, its agents, officers, directors and shareholders, for any and all
losses (including attorneys' fees) incurred by it as a result of its reliance on
any answers contained therein.
3.8 If the Investor is a corporation, limited liability company
or partnership, it is authorized to make the investment contemplated herein, and
the person signing this Subscription Agreement on behalf of such entity has been
duly authorized by such entity to do so.
3.9 If the Investor is a resident of or is otherwise purchasing
Shares in the State of Missouri, he, she or it agrees that the Shares may be
disposed of only through a licensed broker-dealer and acknowledges that it is a
felony to sell securities in violation of the Missouri Securities Act.
4. Registration Rights.
4.1 If the Company proposes to file a registration statement (the
"Registration Statement") for registration of any shares of Common Stock under
the 1933 Act other than a registration relating solely to an employee benefits
plan or a corporate reorganization or other transaction under Rule 145 or a
registration on any form that does not permit secondary sales, the Company will:
(i) Give written notice of such intention to the Investor
(who, together with other purchasers of Shares pursuant to the Offering, shall
be referred to as the "Holders") at least thirty (30) days prior to the proposed
filing date; and
(ii) Use its best efforts to include in such registration
the number of shares of the Investor's Common Stock which were originally
purchased hereby (the "Registrable Securities") specified in a notice received
by the Company within twenty (20) days of the date of the notice specified in
(i) above is mailed or delivered to the Investor.
Notwithstanding the foregoing, if in any firmly underwritten public offering the
managing underwriter thereof determines that any of the Registrable Securities
of the Holders and any other holders of registration rights must be excluded
from the registration as a result of marketing factors, which determination
shall be given in writing, the number of shares of Registrable Securities owned
by the Holders to be included in the offering shall be allocated among the
Holders and any other
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holders of registration rights pro rata in accordance with
the number of shares of Common Stock requested to be included in such
registration.
4.2 If and whenever the Company is required by the provisions of
this Section to use its best efforts to include any Registrable Securities in
any registration of any of its securities under the 1933 Act, the Company will,
as expeditiously as possible and at its sole cost and expense:
(i) cause any registration statement filed to become and
remain effective until all of the Registrable Securities are sold, but not for
any period longer than nine months;
(ii) 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 and to comply with the provisions of the 1933
Act with respect to the disposition of all securities covered by such
registration statement whenever the Holders shall desire to dispose of the same;
(iii) furnish to each Holder such number of copies of a
summary prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the 1933 Act and such other documents as
such Holder may reasonably request in order to facilitate the disposition of the
securities owned by such Holder; and
(iv) use its best efforts to register or qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as each Holder shall request and use its
best efforts to do any and all other acts and things which may be reasonably
necessary to enable such Holder to consummate the disposition in such
jurisdiction of the securities owned by such Holder.
(v) cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(vi) provide a transfer agent and registrar for all
Registrable Securities registered pursuant to such registration statement and a
CUSIP number for all such Registrable Securities, in each case not later than
the effective date of such registration.
4.3 The Company shall pay all expenses incurred by it in
complying with this Section 4 (including without limitation all registration and
filing fees, printing expenses and fees and disbursements of counsel for the
Company) but not the fees and disbursements of counsel for the Holders.
4.4 In the event of any registration of any of its securities
under the 1933 Act pursuant to this Section, the Company will indemnify and hold
harmless the Holder of such securities and each other person, if any, who
controls such Holder within the meaning of the 1933 Act and each other person
who participates in the offering of such securities, against any expenses,
losses, claims, damages or liabilities, joint or several, to which such Holder
or controlling person or participating person may become subject under the 1933
Act or otherwise, in so far as such
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expenses, losses, claims, damages or liabilities (or action in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained, on the effective date thereof, in any
qualification or registration statement under which such securities were
registered under the 1933 Act or qualified under any applicable state securities
law, any preliminary prospectus or final prospectus contained therein or any
amendment or supplement thereto, or any document incident to any such
registration or qualification (collectively the "Offering Documents"), or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation of the 1933 Act or state securities law
or any other regulation thereunder in connection with any registration,
qualification or compliance, and will reimburse such Holder and each such
controlling person or participating person for any legal or any other expenses
reasonably incurred by such Holder or such controlling person or participating
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such expense, loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Offering Document
in reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such Holder specifically for use
in the preparation thereof. Each Holder shall, upon the receipt of notice of the
commencement of any action against such Holder or against any such controlling
person or participating person, in respect of which indemnity may be sought from
the Company on account of the indemnity agreement contained in this Section 4,
promptly notify the Company in writing of the commencement thereof. The omission
of such Holder so to notify the Company of any such action shall not relieve the
Company from any liability which the Company may have to such Holder or such
controlling person or participating person on account of the indemnity agreement
contained in this Section to the extent such failure is not prejudicial. In case
any such action shall be brought against any Holder or any such controlling
person or participating person and such Holder shall notify the Company of the
commencement thereof, the Company shall be entitled to participate in (and, to
the extent that the Company shall wish, to direct) the defense thereof at the
Company's own expense, in which event the defense shall be conducted by
recognized counsel chosen by the Company and reasonably satisfactory to the
Holder. In the event of any registration by the Company of any of its securities
under the 1933 Act pursuant to this Section, the Holder of the securities so
registered will indemnify and hold harmless the Company and each other person,
if any, who controls the Company within the meaning of the 1933 Act and each
officer and director of the Company and the other Holders to the same extent
that the Company agrees to indemnify it, but only with respect to the written
information relating to such Holder furnished to the Company by such Holder as
aforesaid. Notwithstanding the foregoing, in no event shall any indemnity by the
Holder exceed the gross proceeds from the sale of Registrable Securities
received by such Holder in the Offering.
5. Legend. The Investor agrees that his, her or its certificates or
other evidences of or for any and all of the Shares will be legended to reflect
the restrictions set forth in this Agreement.
6. Applicable Law: This Agreement shall be construed in accordance with
and governed by the laws of the Commonwealth of Virginia without reference to
the choice of law principles thereof.
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7. Binding Effect: Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their
respective heirs, executors, administrators, successors, legal representatives
and assigns.
8. Notice. All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall be in writing
and shall be deemed to have been given when mailed by registered or certified
mail or the next business day if sent by special courier such as Federal Express
(except that notice of change of address shall be deemed given only when
received), to the address shown on the Company's records, in the case of the
Investor, and of the Company's Registered Agent, in the case of the Company, or
to such other names or addresses as the Company or the Investor, as the case may
be, shall designate by notice to the other party in the manner specified in this
Section.
9. Severability. If any provision of this Agreement or application
thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement that can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or render unenforceable the invalid or unenforceable provision in
any other jurisdiction or under any other circumstance.
10. Entire Agreement. This Agreement and the certificate(s)
representing Unit(s) purchased hereunder constitute the entire agreement by and
between the parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous understandings of the parties.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the duly
authorized officer of the Company and the undersigned Investor or its duly
authorized officer, as the case may be, as of the date first written above.
PERARDUA CORPORATION
Signature:
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Title:
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Date:
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[Individual Subscriber]
Signature:
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[print individual name]
Date:
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[Other Subscribers] -----------------------------------
[business name]
Signature:
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[print name]
Its:
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[describe office or position held]
Date:
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Number of Shares X $1.60 = $
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