EXHIBIT 10.6
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT
October 11, 1996
FLANDERS CORPORATION
000 Xxxxxxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned ("Purchaser"), hereby subscribes for and agrees to
purchase 444,444 shares of common stock, $.001 par value per share (the
"Shares"), of FLANDERS CORPORATION (the "Company") at a purchase price of $9.00
per share. The Closing of the purchase of the Shares will be held at the
offices of Ropes & Xxxx on the ____ day of October, 1996, or at such earlier
date as shall be designated by the Company on not less than 72 hours prior
notice or at such other place and time as shall be agreed to by the Company
and the Purchaser (the "Closing Date"). At the Closing, the Purchaser will
make payment of the purchase price for the Shares by depositing the same in
escrow with State Street Bank ("Escrow Agent") pursuant to an escrow agreement
("Escrow Agreement") in the form annexed hereto as Exhibit A. At the Closing,
the Company will issue to the Purchaser and deliver to Escrow Agent a stock
certificate representing such number of fully-paid, validly issued and non-
assessable shares of the Common Stock of the Company as subscribed for hereby
by the Purchaser.
Purchaser understands that this Subscription Agreement ("Subscription
Agreement") and the funds delivered hereunder will be returned promptly to
Purchaser and all of Purchaser's obligations under this Subscription Agreement
will terminate if the Company does not accept this Subscription Agreement.
Purchaser acknowledges that Purchaser has been furnished with and has
carefully read the Company's annual report on Form 10-K for the year ended
December 31, 1995, quarterly reports on Form 10-Q dated March 31, 1996 and
June 30, 1996 and Forms 8-K dated January 29, 1996 and May 31, 1996
(collectively, the "Disclosure Materials") delivered to Purchaser by the
Company in connection with the offering of the Shares.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents, warrants and covenants to Purchaser, as of the date hereof, that:
(a) The Company has all requisite corporate power and authority to
enter into this Subscription Agreement and to perform its obligations
hereunder. The execution and delivery by the Company of this
Subscription Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company. This Subscription
Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company enforceable
against it in accordance with its terms.
(b) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of North Carolina
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as currently conducted and as
described in the Company's Annual Report on Form 10-K most recently filed
with the Securities and Exchange Commission and is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct
of its business requires such registration or qualification, except where
the failure so to register or qualify does not have a material adverse
effect on the condition (financial or other), business, properties, net
worth or results of operations of the Company.
(c) The execution, delivery and performance by the Company of this
Subscription Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) contravene or constitute a
default under or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Company under any
provision of applicable law or regulation or of any agreement, judgment,
injunction, order, decree or other instrument binding on the Company or
its subsidiaries, or result in the imposition of any lien on any asset of
the Company or its subsidiaries except as specifically contemplated by
the terms of this Subscription Agreement, or (ii) contravene any
provision of the Company's Articles of Incorporation or Bylaws.
(d) The issuance and delivery of the Shares to Purchaser in
accordance with this Subscription Agreement have been duly authorized by
all necessary corporate action. The Shares, upon issuance, will be
validly issued and fully paid and non-assessable, free and clear of all
liens, encumbrances, rights and claims of others.
(e) The Corporation has filed in a timely manner each document or
report required to be filed by it pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and the rules and regulations
thereunder; each such document or report at the time it was filed
conformed to the requirements of the Exchange Act and the rules and
regulations thereunder; and none of such documents or reports contained
an untrue statement of any material fact or omitted to state any material
fact required to be stated therein or necessary to make the statement
therein not misleading.
(f) There has not been any material adverse change in the Company's
business, financial condition or prospects as reported on the Company's
quarterly report on form 10-Q for the period ended June 30, 1996.
2. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
acknowledges, represents, warrants and covenants that:
(a) The Purchaser acknowledges that the shares are only being
offered to Accredited Investors as defined under Section 501(a) of the
Securities Act. Purchaser qualifies as an Accredited Investor in that
the net worth of Purchaser is at least (i) U.S. $1 million if Purchaser
is a natural person or (ii) U.S. $5 million if Purchaser is a
corporation, partnership, trust or any entity other than a natural
person. In computing net worth, the term "net worth" shall mean the
excess of total assets over total liabilities and the principal residence
of the investor must be valued at cost, including cost of
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improvements, or at recently appraised value by an institutional lender
making a secured loan, net of encumbrances.
(b) Purchaser has been furnished with and has carefully read the
Disclosure Materials, and is familiar with and understands the terms of
this purchase. In evaluating an investment in the Company, the purchaser
has not relied upon any representations or other information (whether
oral or written) from the Company, (or any of its agents or
representatives), other than as set forth in the Disclosure Materials.
With respect to individual tax and other economic considerations involved
in this investment, the Purchaser is not relying on the Company. The
Purchaser has carefully considered and has, to the extent the Purchaser
believes such discussion necessary, discussed with the Purchaser's
professional legal, tax, accounting and financial advisers an investment
in the Shares.
(c) The Shares are being offered in a transaction not involving any
public offering within the meaning of the Securities Act. The Shares
have not been registered under the Securities Act and until the Shares
are registered pursuant to Section 3 hereof (i) such Shares may be
offered, resold, pledged or otherwise transferred only in accordance with
an exemption from the registration requirements of the Securities Act
(and based upon an opinion of counsel if the Company so requests), and
(ii) Purchaser will notify any subsequent purchaser from it of the resale
restrictions set forth in (i) above.
(d) Until the Shares are registered pursuant to Section 3 hereof,
the registrar and transfer agent for the Shares will not be required to
accept for registration transfer any Shares, except upon presentation of
evidence satisfactory to the Company that the restrictions on transfer
set forth in paragraph (c) above have been complied with and that any
such Shares will be in the form of definitive physical certificates
bearing the following legend:
"The Security evidenced hereby was originally issued in a transaction
exempt from registration under Section 5 of the United States
Securities Act of 1933, as amended (the "Securities Act"), and the
Security evidenced hereby may not be offered, sold or otherwise
transferred in the absence of such registration or an applicable
exemption therefrom. The holder of the Security evidenced hereby
agrees for the benefit of the Company that (A) such Security may be
resold, pledged or otherwise transferred only in a transaction
meeting the requirements of the Securities Act or exemption
therefrom (and based upon an opinion of counsel if the Company so
requests) and in accordance with any applicable securities laws of
any State of the United States or any other applicable jurisdiction
and (B) the holder will, and each subsequent holder is required to,
notify any purchaser from it of the Security evidenced hereby of the
resale restrictions set forth in (A) above."
(e) Purchaser is (i) acquiring the Shares for its own account, and
(ii) not acquiring the Shares with a view to distribution or resale
thereof or with any present intention of offering or selling any of the
Shares in a transaction that would violate the
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Securities Act or the securities laws of any State of the United States or
any other applicable jurisdiction.
(f) The Purchaser recognizes that investment in the Company
involves certain risks and the Purchaser has taken full cognizance of and
understands all of the risk factors described in Exhibit A related to the
purchase of Shares and inherent in the business of the Company. The
Purchaser has substantial investment experience in making investment
decisions of the type contemplated hereby, is experienced in evaluating
companies such as the Company and has such knowledge and experience in
financial and business matters that the Purchaser is capable of
evaluating the merits and risks of an investment in the Company.
(g) The Purchaser is acquiring the Shares without being furnished
any offering literature, prospectus or any other form of general
solicitation or general advertising other than the Disclosure Materials,
and the Purchaser has been given no oral or written representations or
assurances by the Company or any representative of the Company in
connection with this investment other than as set forth in the Disclosure
Materials.
3. SECURITIES ACT REGISTRATION.
(a) The Company shall use its best efforts to register for resale
under the Securities Act of 1933, as amended (the "Securities Act"), at
the Company's expense, all of the Shares (the "Registerable Shares")
within ninety days from the date hereof, and in that regard will file a
Registration Statement (the "Registration Statement") on the appropriate
form with the Securities and Exchange Commission ("SEC") as soon as
practicable but in no event later than 30 days from the Closing Date.
Notice of effectiveness of the Registration Statement shall be furnished
promptly to the Purchaser. The Company shall maintain the effectiveness
of the Registration Statement and from time to time will amend or
supplement such Registration Statement and the prospectus contained
therein as and to the extent necessary to comply with the Securities Act.
The effectiveness of the Registration Statement shall be maintained with
respect to Registrable Shares until the later to occur of the second
anniversary of the Closing Date or such date as the Registrable Shares
may be sold pursuant to Rule 144 under the Securities Act or otherwise
without registration. The Registration Statement and any registration
filed pursuant to Section 3(b) below is sometimes also referred to as a
"Registration Statement."
(b) So long as the Registrable Shares shall exceed three percent
(3%) of the number of issued and outstanding shares of Common Stock of
the Company, if the Company shall determine to register any of its
securities for its own account or the account of a security holder or
holders ("Other Holders") in respect of a registered public offering
involving an underwriting, the Company will promptly give the Purchaser
written notice thereof and use its best efforts to include in such
registration and underwriting all of the Registrable Shares specified in
a written request made by the Purchaser within 20 days after the written
notice from the Company to the Purchaser. Such written request may
specify all or part of the Purchaser's Registrable Securities.
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(i) The Purchaser shall, together with the Company and the
Other Holders enter into an underwriting agreement in customary form
with the representative of the underwriter or underwriters selected
by the Company.
(ii) If the representative of the underwriters advises the
Company in writing that marketing factors require a limitation on
the number of shares to be underwritten, the representative may
exclude all Registrable Securities from, or limit the number of
Registrable Securities to be included in, the registration and
underwriting. The Company shall so advise all holders of securities
requesting registration and the number of shares of securities that
are entitled to be included in the registration and underwriting
shall be allocated first to the Company for securities being sold
for its own account and thereafter as set forth in Subsection
3(b)(iii) below.
(iii) In any circumstances in which all of the Registrable
Securities and shares of Holders requested to be included in a
registration cannot be so included for the reason set forth in
Subsection 3(b)(ii) above, the number of Registrable Securities and
shares of Other Holders that may be so included shall be allocated
among the Purchaser and Other Holders requesting inclusion of
securities pro rata on the basis of the number of shares of
Registrable Securities and the number of shares of Other Holders.
4. REGISTRATION PROCEDURES. The Company will use its reasonable best
efforts to effect the registration to permit the sale of the Registrable
Shares being sold in accordance with this Agreement and the intended method or
methods of distribution thereof, and pursuant thereto the Company will:
(a) prepare and file with the Commission a Registration Statement
relating to the registration on the appropriate form under the Securities
Act, cooperate and assist in any filings required to be made with the
NASD and use its best efforts to cause such Registration Statement to
become effective;
(b) prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement and such filings under
the Exchange Act as may be necessary to keep the Registration Statement
effective for such period described in Section 3(a) herein, comply with
the provisions of the Securities Act and the rules and regulations
thereunder, and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the Purchaser set forth in such
Registration Statement;
(c) advise the underwriter(s), with respect to an offering pursuant
to Section 3(b), and the Purchaser promptly:
(i) when the prospectus or any prospectus supplement or post-
effective amendment has been filed, and, with respect to the
Registration Statement or a Registration Statement filed in
accordance with Section 3(b) or any post-effective amendment
thereto, when the same has become effective;
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(ii) of any request by the Commission for amendments to the
Registration Statement or a Registration Statement filed in
accordance with Section 3(b) or amendments or supplements to the
prospectus or for additional information relating thereto;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the
Securities Act or of the suspension by any state securities
commission of the qualification of the Registrable Shares for
offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes. If at any time the
Company shall receive any such stop order suspending the
effectiveness of the Registration Statement or a Registration
Statement filed in accordance with Section 3(b), or any such order
from a state securities commission or other regulatory authority,
the Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time; and
(iv) of the existence of any fact and the happening of any
event that makes any statement of a material fact made in the
Registration Statement, or a Registration Statement filed in
accordance with Section 3(b), the prospectus, any amendment or
supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or
changes in the Registration Statement or a Registration Statement
filed in accordance with section 3(b) or the prospectus in order to
make the statements therein not misleading.
(d) in connection with the filing of any document that is to be
incorporated by reference into the Registration Statement or any
Registration Statement filed in accordance with Section 3(b) or the
prospectus (after initial filing of the Registration Statement or any
Registration Statement filed in accordance with Section 3(b));
(i) use its best efforts to provide copies of such document to
the Purchaser and to the managing underwriter(s), if any, prior to
such filing and in any event no later than concurrently with such
filing; and
(ii) make the Company's representative available for discussion
of such document;
(e) if any fact or event contemplated by clause (c)(iv) above shall
exist or have occurred, prepare a supplement or post-effective amendment
to the Registration Statement, or a Registration Statement filed in
connection with Section 3(b) or related prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Registrable Shares,
the prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(f) use its best efforts to cause all Registrable Shares to be
listed on each securities exchange, if any, on which equity securities
issued by the Company are then listed.
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The Purchaser agrees to furnish promptly to the Company all information
required to be disclosed by the Purchaser in order to make the information
previously furnished to the Company by such Purchaser not materially
misleading.
The Purchaser agrees that upon receipt of any notice from the Company that
any fact or event exists as a result of which the Registration Statement, the
prospectus included therein, or any document incorporated therein by reference
contains or may contain any untrue statement of material fact or omits or may
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, the Purchaser will forthwith discontinue any
disposition of any Registrable Shares pursuant to the Registration Statement
until the Purchaser has received written advice from the Company that the use
of the prospectus contained in the Registration Statement may be resumed, and
has received copies of any additional or supplemental filings which are
incorporated by reference in such prospectus, and, if so directed by the
Company, the Purchaser will deliver to the Company all copies, other than
permanent file copies then in the Purchaser's possession, of the prospectus
covering the Registrable Shares current at the time of receipt of such notice.
The period from and including the date of the giving of such notice to and
including the date when each Purchaser shall have either received copies of
the supplemented or amended prospectus or received advice from the Company
that the use of the prospectus contained in the Registration Statement may be
resumed is referred to herein as the "Holdback Period." The Company agrees to
use all reasonable efforts to minimize the duration and frequency of any
Holdback Periods hereunder to the extent consistent with the Company's
financial, strategic, and other business priorities.
5. REGISTRATION EXPENSES.
(a) Except as otherwise provided herein, all expenses incident to
the Company's performance of or compliance with this Agreement (other
than underwriting discounts or commissions) will be borne by the Company,
including without limitation:
(i) all registration and filing fees and expenses (including
filings made with the NASD or any securities exchange);
(ii) fees and expenses of compliance with federal securities
and state blue sky or securities laws;
(iii) expenses of printing;
(iv) fees and disbursements of counsel for the Company;
(v) all application and filing fees in connection with listing
the Common Stock on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special
audit and "cold comfort" or "agreed upon procedures" letters
required by or incident to such performance).
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The Company will also bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, and the fees and
expenses of any person, including special experts, retained by the Company.
6. RESCISSION.
(a) In the event the Registration Statement is not declared
effective by the SEC on or prior to the ninetieth (90th) day following
the Closing Date (the "Effective Date") the Purchaser may thereafter
rescind this transaction at any time prior to the effectiveness of the
Registration Statement by (i) written notice to the Company and (ii)
written notice to the Escrow Agent certifying that the Registration
Statement referred to in this Subscription Agreement did not become
effective on or before the Effective Date, and has not yet become
effective and that the Purchaser has given written notice of the
rescission of the transaction referred to in such Subscription Agreement
and directing the Escrow Agent to pay to the Purchaser the amount
deposited in escrow as provided above.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless Purchaser as
a seller of Shares, each underwriter, if any (within the meaning of the
Securities Act) of such securities and each person, if any, who controls
(within the meaning of either Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934) any such seller, controlling person or
underwriter, from and against any losses, claims, damages or liabilities,
joint or several, that any such seller, underwriter or controlling person
may incur or to which any such seller, underwriter or controlling person
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in any preliminary prospectus, or contained,
on the effective date thereof, in any registration statement or final or
summary prospectus included therein, or any amendment or supplement
thereto, 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; and the
Company will reimburse each such seller, underwriter or controlling
person for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action, whether or not resulting in liability; provided,
however, the Company will not be liable in any case to the extent that
any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, such preliminary,
final or summary prospectus or such amendment or supplement in reliance
upon and in conformity with written information furnished by or on behalf
of any such seller specifically for use in the preparation thereof.
(b) Purchaser will indemnify and hold harmless the Company, each of
its directors, each of its officers who sign or have signed said
registration statement, each underwriter, each other seller and each
person, if any, who controls the Company or such underwriter or seller
(within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act), to the same extent as the foregoing indemnity from the
Company to
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Purchaser, but only with reference to written information furnished by or
omitted to be furnished by or on behalf of Purchaser, for use in the
preparation of such registration statement, such preliminary, final or
summary prospectus or such amendment or supplement, and will reimburse the
Company or any such director, officer, underwriter or controlling person for
any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or
action, whether or not resulting in any liability; provided, however, that
the obligations of Purchaser hereunder shall not apply to amounts paid in
settlement of any such claims, losses, damages or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of
Purchaser (which consent shall not be unreasonably withheld); provided
further that the Purchaser shall not be obligated to contribute an amount
greater than the gross proceeds received by the Purchaser with respect to
the sale of Registrable Shares giving rise to the indemnification
obligations; and, provided further, that Purchaser shall only be responsible
for the reimbursement of the legal and other expenses incurred by a single
counsel on behalf of the Company and such officers, directors and
controlling Persons.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any legal action against such indemnified party in
respect of which indemnity or reimbursement may be sought against the
indemnifying party under this Agreement, such indemnified party shall
notify the indemnifying party in writing of the commencement thereof,
and, subject to the provisions hereinafter stated, the indemnifying party
shall assume the defense of such action (including, the employment of
counsel, who shall be counsel satisfactory to such indemnified party, and
the payment of expenses in connection therewith). To the extent the
indemnifying party and the indemnified party believe it prudent or
necessary, in their good faith discretion, such indemnified party shall,
in addition to the foregoing, have the right to employ separate counsel
in any such action and to participate in the defense thereof, and the
fees and expenses of such counsel shall be at the expense of the
indemnifying party. The indemnifying party shall not be liable to
indemnify any person for any settlement of any such action effected
without the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof in
respect of any losses, claims, damages, liabilities or expenses referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities and expenses in such proportion as is appropriate to reflect
the relative benefit to the Company on the one hand and the Purchaser on
the other hand in connection with the sale of the Registrable Shares, as
well as any other relevant equitable considerations; provided, however,
that the Purchaser shall not be required to contribute an amount greater
than the gross proceeds received by the Purchaser with respect to the
sale of Registrable Shares giving rise to the indemnification obligation
under this Section 7. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or expenses shall
be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
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(e) The Company and the Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined
by a pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred
to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating any
claim or defending any such action, suit or proceeding. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11 of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
8. MISCELLANEOUS.
(a) Grammatical References. All pronouns and any variations
thereof used herein shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the antecedent may require.
(b) Notices. Notices required or permitted to be given hereunder
shall be in writing and shall be deemed to be sufficiently given when
personally delivered or upon receipt when sent by facsimile or registered
mail, return receipt requested, addressed to the other party at the
address of such party set forth in this Subscription Agreement, or to
such other address furnished by notice given in accordance with this
paragraph.
(c) No Waiver. Failure of the Company or the Purchaser to exercise
any right or remedy under this Subscription Agreement or any other
agreement between the Company and a Purchaser, or otherwise, or delay by
the Company or the Purchaser is exercising same, will not operate as a
waiver thereof. No waiver by the Company or the Purchaser will be
effective unless and until it is in writing and signed by the Company or
the Purchaser.
(d) Governing Law. This Subscription Agreement shall be enforced,
governed and construed in all respects in accordance with the laws of the
State of New York without giving effect to its conflicts of law rules or
principles.
(e) Complete Agreement. This Subscription Agreement and the
documents referred to herein, shall constitute the entire agreement among
the parties hereto with respect to the subject matter hereof and shall
supersede all prior understandings or agreements with respect to such
subject matter. This Subscription Agreement may be amended only by the
written consent of both the Company and the Purchaser.
(f) Severability. If a court of competent jurisdiction determines
that any provision of this Subscription Agreement is invalid,
unenforceable or illegal for any reason, such determination shall not
affect or impair the validity, legality and enforceability of the other
provisions of this Subscription Agreement, which shall remain in full
force and effect in the same manner and to the same extent as if the
invalid, unenforceable or illegal provision had not been contained in
this Subscription Agreement. In the event that any provision of this
Subscription Agreement is invalid or unenforceable
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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 or any other provision hereof.
(g) Execution in Counterparts. This Subscription Agreement may be
executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute the same Subscription Agreement.
(h) Title and Subtitles. The titles and subtitles used in this
Subscription Agreement are used for convenience only and are not to be
considered in construing or interpreting this Subscription Agreement.
(i) Rights and Remedies Cumulative. The rights and remedies
provided in this Subscription Agreement shall be cumulative and not
exclusive of any other rights or remedies provided by law or otherwise.
IF YOU AGREE WITH THE FOREGOING, PLEASE SIGN THE SIGNATURE PAGES TO THIS
SUBSCRIPTION AGREEMENT LOCATED IN THE SUBSCRIPTION DOCUMENTS PROVIDED AND
RETURN THEM TO THE COMPANY, AND THIS LETTER SHALL THEN BECOME A BINDING
AGREEMENT BETWEEN YOU AND THE COMPANY IN ACCORDANCE WITH ITS TERMS.
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SUBSCRIPTION AGREEMENT
SIGNATURE PAGE
By executing this signature page the Purchaser hereby swears to, adopts
and agrees to all terms, conditions, representations, warranties and covenants
contained in the Subscription Agreement.
Dated: ______________________, 1996
Number of Shares subscribed for: 444,444
Aggregate purchase price: $ 4,000,000.00
NAME OF PURCHASER: President and Fellows of Harvard College
By Harvard Management Company, Inc.
(If purchaser is trust or retirement fund list name of such trust or fund)
PURCHASER: /s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------------------
(signature)
Name of person signing: Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxxxx
If signing in capacity of officer or trustee, please indicate: Authorized
Signatory
________________________________________________________
(signature of any co-tenant, joint-tenant or co-trustee)
Name of co-signer: _____________________________________
Print exact name in which Share will be held: President and Fellows of
Harvard College
Tax or Other Identification Number[s]: 042103580
Address of Purchaser(s): c/o Harvard Management Company, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
ACCEPTED BY:
FLANDERS CORPORATION
000 Xxxxxxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
By: /s/ Xxxxxx X. Xxxxx
Its: CFO
Date: October 11, 1996
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