SUBSCRIPTION AGREEMENT
LMI Aerospace, Inc. (f/k/a Xxxxxxx'x Metal, Inc.)
0000 Xxxxxxx 00 Xxxxx
Xx. Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
1. Subscription.
The undersigned, Xxxxxxxx X. XxXxxxx ("XxXxxxx"), as the
beneficial owner of the Xxxxxxxx X. XxXxxxx XXX Rollover Account (the "XXX"),
hereby irrevocably subscribes for and agrees to cause the XXX to purchase from
LMI Aerospace, Inc. (f/k/a Xxxxxxx'x Metal, Inc.), a Missouri corporation (the
"Company") an aggregate of 30,000 shares of the common stock, $0.02 par value
per share (the "Shares"), for an aggregate purchase price of $600,000.00, with
an appropriate adjustment by the Company in the number of Shares for any change
by reason of any stock dividend, stock split or exchange of shares or
recapitalization of the Company. XxXxxxx acknowledges this Subscription shall
expire 120 days from the date hereof.
2. Representations and Warranties. XxXxxxx represents and warrants to,
and agrees with, the Company, as of the date hereof and the date of the closing,
as follows:
(a) XxXxxxx is an "Accredited Investor" as that term is
defined in Rule 501(a) of Regulation D ("Regulation D") promulgated
under the Securities Act of 1933, as amended, and rules and regulations
thereunder ("Act"). Specifically, XxXxxxx is an executive officer of
the Company.
(b) XxXxxxx is a bona fide resident of the State of Missouri
and is legally competent to execute this Subscription Agreement.
(c) XxXxxxx has been actively engaged in the conduct of the
Company's business and affairs and, accordingly, is fully familiar with
the Company and its business, plans and financial condition.
(d) XxXxxxx has such knowledge and experience in finance,
securities, investments and other business matters so as to be able to
protect his interests in connection with this transaction.
(e) XxXxxxx understands the various risks of an investment in
the Company contemplated hereby and can afford to bear such risks,
including (but not limited to) the risk of losing LeGrand's entire
investment.
(f) XxXxxxx will cause the XXX to acquire the Shares for the
IRA's account for investment and not with a view to the sale or
distribution thereof or the granting of any participation therein, and
has no present intention of distributing or selling to others any of
such interest or granting any participation therein.
(g) XxXxxxx acknowledges and agrees that the representations,
warranties and agreements made by XxXxxxx herein shall survive the
execution, delivery and performance of this Agreement and the purchase
of the Shares.
(h) XxXxxxx acknowledges and agrees that the Shares will be
subject to the restrictions set forth in Sections 4 and 5 of this
Subscription Agreement, a shareholder agreement with the Company (the
"Shareholder Agreement") and voting trust agreement dated November 11,
1996 (the "Voting Trust Agreement") and agrees to execute the
Shareholder Agreement and Voting Trust Agreement upon the issuance of
the Shares.
3. Indemnification. XxXxxxx acknowledges that he understands the
meaning and legal consequences of the representations and warranties contained
in Section 2 of this Subscription Agreement, and agrees to indemnify and hold
harmless the Company and its officers, directors, employees, agents and
controlling persons, past, present or future from and against any and all loss,
damage or liability due to or arising out of a breach of any such representation
or warranty.
4. Transferability. Neither this Agreement, nor any interest of XxXxxxx
or the XXX herein, is assignable or transferable by XxXxxxx or the XXX, in whole
or in part, except by operation of law. None of the Shares subscribed for or the
rights relating thereto may be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of by the XXX, or XxXxxxx, and XxXxxxx agrees
not to sell, assign, transfer, pledge, hypothecate or otherwise dispose of such
Shares or rights, during a period of restriction extending from the date of
issuance of the Shares and ending on April 30, 2000 ("Period of Restriction").
At the end of the Period of Restriction (the "Termination Date"), such
restriction on transfer shall lapse and the Shares, if not previously forfeited
pursuant to Section 5 hereof, will become subject to (i) a right of first
refusal pursuant to Section 4.B. of this Agreement, and (ii) such limitations on
transfer, if any, as may exist under the Shareholder Agreement, the Voting Trust
Agreement, any other agreement binding upon XxXxxxx, the XXX or applicable law.
5. Possible Forfeiture Prior to Termination Date. If XxXxxxx ceases to
be employed by the Company or any of its Subsidiaries prior to the Termination
Date for any reason other than his disability or death, the XXX shall thereupon
immediately forfeit any and all such Shares, and the full ownership of such
Shares shall thereupon revert to the Company. Upon such forfeiture the XXX shall
be entitled to receive from the Company and the Company shall be obligated to
pay an amount equal to the lesser of (i) the purchase price originally paid by
the XXX, or (ii) the per share value of the Company's common stock determined by
an independent appraiser in conformity with the Business Valuation Standard of
the American Society of Appraisers and the Uniform Standards of Professional
Appraisal Practice, which shall be based on the appraisal most recently
completed prior to the date of the Termination Date, multiplied by the number of
shares being sold. Such payment by the Company shall be made either (i) by
cashier's check or (ii) at the Company's option, by paying twenty percent (20%)
of the amount by cashier's check and by delivering to the XXX the Company's note
(the "Note") in the principal amount of the remainder of the payment. The Note
shall be dated as of the date of the consummation of the aforesaid purchase,
shall become payable in five (5) equal, consecutive annual installments
beginning on the first anniversary of the consummation of the aforesaid
purchase, and shall bear interest (payable annually) on the unpaid balance at
the lowest annual rate allowable under applicable provisions of the Internal
Revenue Code of 1986, as amended, to prevent any portion of the principal
payments from being treated as imputed interest.
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6. Miscellaneous.
A. This Agreement sets forth the entire understanding of the
parties with respect to the subject matter hereof, supersedes all existing
agreements among them concerning such subject matter, and may be modified only
by a written instrument duly executed by the party to be charged.
B. Except as otherwise specifically provided herein, any
notice or other communication required or permitted to be given hereunder shall
be in writing and shall be mailed by registered or certified mail, return
receipt requested, or sent by Federal Express, Express Mail or similar next
business day delivery service, or delivered (in person or by telecopy, telex or
similar telecommunications equipment) against receipt or confirmation to the
party to whom it is to be given: (i) if to the Company, at the address set forth
on the first page hereof, (ii) if to XxXxxxx, at the address set forth on the
signature page hereof, or (iii) in either case, to such other address as the
party shall have furnished in writing in accordance with the provisions of this
Section 6.B. Notice to the estate of any party shall be sufficient if addressed
to the party as provided in this Section 6.B. Any notice or other communication
given as provided in this Section 6(b) shall be deemed given at the time of
receipt thereof.
C. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, the successors and assigns of the Company, the
permitted successors and assigns of the XXX, and the successors, assigns, heirs
and personal representatives of XxXxxxx.
D. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
E. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri, without giving effect to
principles governing conflicts of law.
F. This Agreement does not create, and shall not be construed
as creating, any rights enforceable by any person not a party to this Agreement
(except as provided in Sections 3 and 6.B. hereof).
The parties have executed this Agreement as of the day and year this
subscription has been accepted by the Company, as set forth below.
Accepted this 27th day of
___________________________________ April, 1998:
Xxxxxxxx X. XxXxxxx, the Beneficial
Owner of the Xxxxxxxx X. XxXxxxx
XXX Rollover Account LMI Aerospace, Inc.
(f/k/a Xxxxxxx'x Metal, Inc.)
Social Security No.________________
By: __________________________________
908 Claymark Xx. Xxxxxx X. Xxxx, President
Xx. Xxxxx, XX 00000
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