Exhibit 7.1
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
wire transfer to the account specified by the Company (the "Payment"), 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 subscriber ("Purchaser"), the
Company will issue to the Purchaser certificates representing the Preferred
Shares purchased in the name of the Purchaser, and the name of such Purchaser
will be registered on the books of the Company as the record owner of such
Preferred Shares.
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, 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 Act, 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 an investment in the Company
involves substantial risks, and it 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.
(f) 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.
(g) The person executing this Subscription Agreement on behalf of
the undersigned has been duly authorized and is duly qualified to
execute and deliver this Subscription Agreement and all other
instruments executed and delivered on behalf of the undersigned in
connection with the purchase of the Preferred Shares and the
undersigned is duly qualified to purchase and hold Preferred Shares,
and the signature of the person executing this Subscription Agreement
on behalf of the undersigned is binding upon the undersigned.
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, give written notice of such fact
to the Company, specifying which representations and warranties are not true and
accurate and the reasons therefor.
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 itself or its 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
2
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.
(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.
3
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
subscriber at the address provided below or if to the Company, to 0000 Xxxxxxx
Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attn. CEO, 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.
4
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 1st day of June, 2001.
396,000
------------------------
Number of Preferred Shares Subscribed WISER INVESTORS, L.P.
for at $25.00 per Preferred Share
$9,900,000
---------------------------
Total Purchase Price By:________________________________
delivered herewith Xxxxxx X. Xxxxxx, Xx., Manager
00-0000000
--------------------------------------
Tax Identification Number of Purchaser
Purchaser's Mailing Address:
---------------------------
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Check here if payment is being made by wire transfer: X
-------
5
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 broker 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 Rule 506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited
investors.
