71309791.6 079745-00000 12
71309791.6 079745-00000
SUBSCRIPTION AGREEMENT
This Subscription Agreement (the "Agreement") is made as of this ___
day of ________ 200_, by and between SiriCOMM, Inc., a Delaware corporation (the
"Company"), and the purchaser identified on the signature page to this Agreement
(the "Purchaser").
Recitals:
The Purchaser desires to subscribe for, purchase and acquire from the
Company and the Company desires to sell and issue to the Purchaser the amount of
units (each, a "Unit" and collectively, the "Units"), each Unit consisting of
(i) one share of common stock of the Company, $0.001 par value per share (the
"Common Stock") and (ii) redeemable Common Stock purchase warrants (the
"Warrants"), each entitling the holder thereof to purchase one share of Common
Stock at $1.50 per share during the period commencing on the date of issuance
until the fifth anniversary of such date, upon the terms and conditions and
subject to the provisions hereinafter set forth (such securities comprising the
Units shall be referred to as the "Securities" herein).
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants, and conditions set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties mutually agree as follows:
Agreement:
1. Purchase and Sale of the Units. Subject to the terms and conditions
of this Agreement, the Purchaser subscribes for and agrees to purchase and
acquire from the Company and the Company agrees to sell and issue to the
Purchaser the Units, in the manner set forth in Section 2, at the purchase price
set forth on the signature page of this Agreement (the "Purchase Price").
2. Terms of Purchase and Sale of the Units. The closing of the
transactions contemplated hereby (the "Closing") shall take place on or before
the fifth full business day after the Notice Date (as such term is defined in
the Placement Agent Agreement dated as of December __, 2005 (the "Placement
Agent Agreement"), between the Company and Xxxxxxx Xxxxxx Xxxxxx Inc. (the
"Placement Agent")), at the offices of Xxxxxx & Xxxxxxxxx LLP, 000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxx Xxxx 00000, or at such other time and place
as the Company and the Placement Agent may agree upon. Contemporaneously with
the delivery of this Agreement, the Purchaser shall deliver to Sterling Bank
(the "Escrow Agent") the Purchase Price by wire transfer of immediately
available funds pursuant to wire transfer instructions given to the Purchaser by
the Company. At the Closing, the Escrow Agent shall deliver to the Company the
Purchase Price by wire transfer of immediately available funds pursuant to wire
transfer instructions given to the Escrow Agent by the Company, and the Company
shall deliver to the Purchaser a certificate, registered in the name of the
Purchaser, representing the Units. Notwithstanding the foregoing, the
obligations of the Company and the Purchaser hereunder are subject to the
Company's receipt of aggregate subscriptions for a minimum of 2,000,000 Units on
or prior to January 13, 2006 (or such later closing date as may be agreed by the
Company and the Placement Agent), which date may be extended by the Company and
the Placement Agent pursuant to the terms of the Placement Agent Agreement (the
"Closing Date").
3. Representations and Warranties of the Company. In order to induce
the Purchaser to enter into this Agreement, the Company represents and warrants
to the Purchaser the following:
(a) Authority. The Company is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Delaware, and has all requisite right, power, and authority to execute,
deliver and perform this Agreement.
(b) Subsidiaries. The Company has no direct or indirect
subsidiaries other than those set forth in set forth in the Exchange
Act Documents (as defined in Section 3(f) below) (the "Subsidiaries").
Except as disclosed in the Exchange Act Documents, the Company owns,
directly or indirectly, all of the capital stock of each Subsidiary
free and clear of any and all liens, and all the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are
fully paid, non-assessable and free of preemptive and similar rights.
(c) Enforceability. The execution, delivery, and performance
of this Agreement by the Company have been duly authorized by all
requisite corporate action. This Agreement has been duly executed and
delivered by the Company, and, upon its execution by the Purchaser,
shall constitute the legal, valid, and binding obligation of the
Company, enforceable in accordance with its terms, except to the extent
that its enforceability is limited by bankruptcy, insolvency,
reorganization, or other laws relating to or affecting the enforcement
of creditors' rights generally and by general principles of equity.
(d) No Violations. The execution, delivery, and performance of
this Agreement by the Company does not, and will not, violate or
conflict with any provision of the Company's Certificate of
Incorporation or Bylaws and does not and will not, with or without the
passage of time or the giving of notice, result in the breach of, or
constitute a default, cause the acceleration of performance, or require
any consent under (except such consents as have been obtained as of the
date hereof), or result in the creation of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, any
material instrument or agreement to which the Company is a party or by
which the Company or its properties are bound, except such consents as
have been obtained as of the date hereof.
(e) Capitalization. The authorized capital stock of the
Company consists of: 50,000,000 shares of Common Stock and 5,000,000
shares of preferred stock, par value $.001 per share (the "Preferred
Stock"). As of December 1, 2005, there were (i) 20,107,950 shares of
Common Stock issued and outstanding and (ii) 213,417 shares of Series A
Cumulative Convertible Preferred Stock issued and outstanding. As of
December 1, 2005, the Company has outstanding options and warrants to
purchase 7,148,573 shares of Common Stock. Upon issuance in accordance
with the terms of this Agreement against payment of the Purchase Price
therefore, the Units will be duly and validly issued, fully paid, and
nonassessable and free and clear of all liens imposed by or through the
Company, and, assuming the accuracy of the representations and
warranties of the Purchaser, will be issued in accordance with a valid
exemption from the registration or qualification provisions of the
Securities Act of 1933, as amended (the "Securities Act"), and any
applicable state securities laws (the "State Acts"). A sufficient
number of shares of Common Stock have been reserved by the Company to
accommodate the exercise of the Warrants in full in accordance with
their terms. The shares of Common Stock issuable upon the exercise of
the Warrants (the "Warrant Shares") have been duly authorized, and upon
issuance of the Warrant Shares upon proper exercise of the Warrants, in
accordance with the terms thereof, the Warrant Shares will be validly
issued, fully paid, and non-assessable.
(f) Exchange Act Filing. During the 12 calendar months
immediately preceding the date of this Agreement, all reports and
statements required to be filed by the Company with the Securities and
Exchange Commission ("SEC") under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the rules and regulations
thereunder, have been timely filed. Such filings, together with all
documents incorporated by reference therein, are referred to as
"Exchange Act Documents." Each Exchange Act Document, as amended,
conformed in all material respects to the requirements of the Exchange
Act and the rules and regulations thereunder, and no Exchange Act
Document, as amended, at the time each such document was filed,
included any untrue statement of a material fact or omitted 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.
(g) Company Financial Statements. The audited financial
statements, together with the related notes of the Company, at
September 30, 2004 and September 30, 2005, and for the year then ended,
included in the Company's Annual Report on Form 10-KSB for the fiscal
years ended September 30, 2004 and September 30, 2005 (collectively,
the "Company Financial Statements"), respectively, fairly present in
all material respects, on the basis stated therein and on the date
thereof, the financial position of the Company at the respective dates
therein specified and its results of operations and cash flows for the
periods then ended. Such statements and related notes have been
prepared in accordance with generally accepted accounting principles in
the United States applied on a consistent basis except as expressly
noted therein.
(h) No Material Liabilities. Except for liabilities or
obligations not individually in excess of $100,000, or liabilities or
obligations as set forth in the Exchange Act Documents, since September
30, 2005, the Company has not incurred any material liabilities or
obligations, direct or contingent, except in the ordinary course of
business and except for liabilities or obligations reflected or
reserved against on the Company's balance sheet as of September 30,
2005, and there has not been any change, or to the knowledge of the
Company, development or effect (individually or in the aggregate) that
is or is reasonably likely to be, materially adverse to the condition
(financial or otherwise), business, prospects, or results of operations
of the Company and the Subsidiaries considered as a whole (a "Material
Adverse Effect") or any change in the capital or material increase in
the long-term debt of the Company or any Subsidiary, nor has the
Company declared, paid, or made any dividend or distribution of any
kind on its capital stock.
(i) No Disputes Against Company. There is no material pending
or, to the knowledge of the Company, threatened (i) action, suit,
claim, proceeding, or investigation against the Company, at law or in
equity, or before or by any federal, state, municipal, or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) arbitration proceeding
against the Company, (iii) governmental inquiry against the Company, or
(iv) any action or suit by or on behalf of the Company pending or
threatened against others.
(j) Approvals. (i) The execution, delivery, and performance by
the Company of this Agreement and the Registration Rights Agreement (as
hereinafter defined) and (ii) the offer and sale of the Units require
no consent of, action by or in respect of, or filing with, any person,
governmental body, agency, or official other than those consents that
have been obtained and filings that have been or will be made pursuant
to the Securities Act and any State Act, which the Company undertakes
to file within the applicable time period.
(k) Compliance. Neither the Company nor any Subsidiary (i) is
in default under or in violation of (and no event has occurred that has
not been waived that, with notice or lapse of time or both, would
result in a default by the Company or any Subsidiary under), nor has
the Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or
credit agreement, or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound (whether or not
such default or violation has been waived), (ii) is in violation of any
order of any court, arbitrator, or governmental body, or (iii) is or
has been in violation of any statute, rule, or regulation of any
governmental authority, including without limitation all foreign,
federal, state, and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety
and employment and labor matters, except in each case as could not,
individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect. The Company is in compliance with
the applicable requirements of the Xxxxxxxx-Xxxxx Act of 2002, as
amended, and the rules and regulations thereunder, except where such
noncompliance could not have or reasonably be expected to result in a
Material Adverse Effect.
(l) Patents and Trademarks. The Company and the Subsidiaries
have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names,
copyrights, licenses, and other similar rights that are necessary or
material for use in connection with their respective businesses as
described in the Exchange Act Documents and the Private Placement
Memorandum dated December 6, 2005, as may be amended or supplemented
prior to the Closing (the "PPM"), and which the failure to so have
could, individually or in the aggregate, have or reasonably be expected
to result in a Material Adverse Effect (collectively, the "Intellectual
Property Rights"). Neither the Company nor any Subsidiary has received
a written notice that the Intellectual Property Rights used by the
Company or any Subsidiary violates or infringes upon the rights of any
person. To the knowledge of the Company, all such Intellectual Property
Rights are enforceable and there is no existing infringement by another
person of any of the Intellectual Property Rights, except where such
infringement could not have or reasonably be expected to result in a
Material Adverse Effect.
(m) Transactions With Affiliates and Employees. Except as set
forth in the Exchange Act Documents, none of the officers or directors
of the Company and, to the knowledge of the Company, none of the
employees of the Company is presently a party to any transaction with
the Company or any Subsidiary (other than for services as employees,
officers, and directors), including any contract, agreement, or other
arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, or
otherwise requiring payments to or from any officer, director, or such
employee or, to the knowledge of the Company, any entity in which any
officer, director, or any such employee has a substantial interest or
is an officer, director, trustee, or partner.
(n) Internal Accounting Controls. The Company and the
Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with
management's general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences. The Company has established disclosure controls and
procedures (as defined in Exchange Act rules 13a-15(e) and 15d-15(e))
for the Company and designed such disclosure controls and procedures to
ensure that material information relating to the Company, including its
Subsidiaries, is made known to the certifying officers by others within
those entities, particularly during the period in which the Company's
Form 10-KSB or 10-QSB, as the case may be, is being prepared. The
Company's certifying officers have evaluated the effectiveness of the
Company's controls and procedures as of the end of the most recently
ended fiscal quarter for which a report on Form 10-QSB has been filed
(such date, the "Evaluation Date"). The Company presented in its most
recently filed Form 10-KSB or Form 10-QSB the conclusions of the
certifying officers about the effectiveness of the disclosure controls
and procedures based on their evaluations as of the Evaluation Date.
Since the Evaluation Date, there have been no significant changes in
the Company's internal controls (as such term is defined in Item 307(b)
of Regulation S-K under the Exchange Act) or, to the Company's
knowledge, in other factors that could significantly affect the
Company's internal controls.
(o) Solvency. Based on the financial condition of the Company
as of the Closing Date (and assuming that the Closing shall have
occurred), (i) the Company's fair saleable value of its assets exceeds
the amount that will be required to be paid on or in respect of the
Company's existing debts and other liabilities (including known
contingent liabilities) as they mature; (ii) the Company's assets do
not constitute unreasonably small capital to carry on its business for
the current fiscal year as now conducted and as proposed to be
conducted including its capital needs taking into account the
particular capital requirements of the business conducted by the
Company, and projected capital requirements and capital availability
thereof; and (iii) the current cash flow of the Company, together with
the proceeds the Company would receive, were it to liquidate all of its
assets, after taking into account all anticipated uses of the cash,
would be sufficient to pay all amounts on or in respect of its debt
when such amounts are required to be paid. The Company does not intend
to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be payable on or
in respect of its debt).
(p) Certain Fees. Except as may be due to the Placement Agent
from the Company, no brokerage or finder's fees or commissions are or
will be payable by the Company to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank, or other
person with respect to the transactions contemplated by this Agreement.
The Purchaser shall have no obligation with respect to any Placement
Agent fees or with respect to any claims (other than such fees or
commissions owed by a Purchaser pursuant to written agreements executed
by the Purchaser which fees or commissions shall be the sole
responsibility of such Purchaser) made by or on behalf of other persons
for fees of a type contemplated in this Section that may be due in
connection with the transactions contemplated by this Agreement.
(q) Certain Registration Matters. Assuming the accuracy of the
Purchaser's representations and warranties set forth in Section 4, no
registration under the Securities Act is required for the offer and
sale of the Units by the Company to the Purchaser hereunder.
(r) Listing and Maintenance Requirements. Except as specified
in the Exchange Act Documents, the Company has not, in the two years
preceding the date hereof, received notice from any stock exchange or
automated dealer quotation system to the effect that the Company is not
in compliance with the listing or maintenance requirements thereof. The
Company is, and has no reason to believe that it will not in the
foreseeable future continue to be, in compliance with the listing and
maintenance requirements for continued listing of the Common Stock on
the NASD OTC Bulletin Board.
(s) Investment Company. The Company is not, and is not an
"affiliate" of, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(t) No Additional Agreements. The Company does not have any
agreement or understanding with any Purchaser with respect to the
transactions contemplated by this Agreement and the Registration Rights
Agreement on terms that differ from those set forth in this Agreement
and the Registration Rights Agreement.
(u) Disclosure. The Company confirms that neither it nor any
person acting on its behalf has provided the Purchaser or its agents or
counsel with any information that the Company believes would constitute
material, non-public information following the announcement of the
Closing and the transactions contemplated thereby. The Company
understands and confirms that the Purchaser will rely on the foregoing
representations and covenants in effecting transactions in securities
of the Company. All disclosure provided to the Purchaser regarding the
Company, its business and the transactions contemplated hereby,
furnished by or on behalf of the Company (including the disclosure in
the PPM and the Company's representations and warranties set forth in
this Agreement) are true and correct in all material respects and do
not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
4. Representations and Warranties of the Purchaser. In order to induce
the Company to enter into this Agreement, the Purchaser represents and warrants
to the Company the following:
(a) Authority. If a corporation, partnership, limited
partnership, limited liability company, or other form of entity, the
Purchaser is duly organized or formed, as the case may be, validly
existing, and in good standing under the laws of its jurisdiction of
organization or formation, as the case may be. The Purchaser has all
requisite individual or entity right, power, and authority to execute,
deliver, and perform this Agreement.
(b) Enforceability. The execution, delivery, and performance
of this Agreement by the Purchaser have been duly authorized by all
requisite partnership or corporate action, as the case may be. This
Agreement has been duly executed and delivered by the Purchaser, and,
upon its execution by the Company, shall constitute the legal, valid,
and binding obligation of the Purchaser, enforceable in accordance with
its terms, except to the extent that its enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium, or other laws
relating to or affecting the enforcement of creditors' rights generally
and by general principles of equity.
(c) No Violations. The execution, delivery, and performance of
this Agreement by the Purchaser do not and will not, with or without
the passage of time or the giving of notice, result in the breach of,
or constitute a default, cause the acceleration of performance, or
require any consent under, or result in the creation of any lien,
charge or encumbrance upon any property or assets of the Purchaser
pursuant to, any material instrument or agreement to which the
Purchaser is a party or by which the Purchaser or its properties may be
bound or affected, and, do not or will not violate or conflict with any
provision of the articles of incorporation or bylaws, partnership
agreement, operating agreement, trust agreement, or similar
organizational or governing document of the Purchaser, as applicable.
(d) Knowledge of Investment and its Risks. The Purchaser has
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of Purchaser's investment in
the Units. The Purchaser understands that an investment in the Company
represents a high degree of risk and there is no assurance that the
Company's business or operations will be successful. The Purchaser has
considered carefully the risks attendant to an investment in the
Company, and that, as a consequence of such risks, the Purchaser could
lose Purchaser's entire investment in the Company.
(e) Own Account, Non-distribution, etc. The Purchaser hereby
represents and warrants that (i) the Units are being acquired for the
Purchaser's own account, and not as a nominee or agent and not with a
view to the resale or distribution of all or any part of the Units or
the Securities and the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing any of the
Units or the Securities within the meaning of the Securities Act, (ii)
the Units are being acquired in the ordinary course of the Purchaser's
business, and (iii) the Purchaser does not have any contracts,
understandings, agreements, or arrangements, directly or indirectly,
with any person and/or entity to distribute, sell, transfer, or grant
participations to such person and/or entity with respect to, any of the
Units or the Securities. The Purchaser is not purchasing the Units as a
result of any advertisement, article, notice or other communication
regarding the Units published in any newspaper, magazine or similar
media or broadcast over television or radio or presented at any seminar
or any other general solicitation or general advertisement.
(f) Purchaser Status. The Purchaser is an "Accredited
Purchaser" as that term is defined by Rule 501 of Regulation D
promulgated under the Securities Act and the information provided by
the Purchaser in the Investor Questionnaire, a copy of which is
attached hereto as Exhibit A, is truthful, accurate, and complete. The
Purchaser is not registered as a broker-dealer under Section 15 of the
Exchange Act.
(g) Disclosure. The Purchaser has reviewed information
provided by the Company in connection with the decision to purchase the
Units, consisting of the Company's publicly available filings with the
SEC and the information contained therein. The Company has provided the
Purchaser with all the information that the Purchaser has requested in
connection with the decision to purchase the Units. The Purchaser
further represents that the Purchaser has had an opportunity to ask
questions and receive answers from the Company regarding the business,
properties, prospects, and financial condition of the Company. All such
questions have been answered to the full satisfaction of the Purchaser.
Neither such inquiries nor any other investigation conducted by or on
behalf of the Purchaser or its representatives or counsel shall modify,
amend, or affect the Purchaser's right to rely on the truth, accuracy,
and completeness of the disclosure materials and the Company's
representations and warranties contained herein.
(h) No Registration. The Purchaser understands that Purchaser
may be required to bear the economic risk of Purchaser's investment in
the Company for an indefinite period of time. The Purchaser further
understands that (i) neither the offering nor the sale of the Units or
the Securities has been registered under the Securities Act or any
applicable State Acts in reliance upon exemptions from the registration
requirements of such laws, (ii) the Units and the Securities must be
held by he, she or it indefinitely unless the sale or transfer thereof
is subsequently registered under the Securities Act and any applicable
State Acts, or an exemption from such registration requirements is
available, (iii) except as set forth in the Registration Rights
Agreement between the Company and the Purchaser, the Company is under
no obligation to register any of the Units or the Securities on the
Purchaser's behalf or to assist the Purchaser in complying with any
exemption from registration, and (iv) the Company will rely upon the
representations and warranties made by the Purchaser in this
Subscription Agreement in order to establish such exemptions from the
registration requirements of the Securities Act and any applicable
State Acts.
(i) Transfer Restrictions. The Purchaser will not transfer any
of the Units or the Securities unless such transfer is registered or
exempt from registration under the Securities Act and such State Acts,
and, if requested by the Company in the case of an exempt transaction,
the Purchaser has furnished an opinion of counsel reasonably
satisfactory to the Company that such transfer is so exempt. The
Purchaser understands and agrees that (i) the certificates evidencing
the Units will bear appropriate legends indicating such transfer
restrictions placed upon the Units, (ii) the Company shall have no
obligation to honor transfers of any of the Units or the Securities in
violation of such transfer restrictions, and (iii) the Company shall be
entitled to instruct any transfer agent or agents for the securities of
the Company to refuse to honor such transfers.
(j) Principal Address. The Purchaser's principal residence, if
an individual, or principal executive office, if an entity, is set
forth on the signature page of this Subscription Agreement.
5. Independent Nature of Purchaser's Obligations and Rights. The
obligations of the Purchaser under this Agreement, the Registration Rights
Agreement, and any other documents delivered in connection herewith and
therewith (collectively, the "Transaction Documents") are several and not joint
with the obligations of any other purchaser of Units, and the Purchaser shall
not be responsible in any way for the performance of the obligations of any
other purchaser of Units under any Transaction Document. The decision of the
Purchaser to purchase Units pursuant to the Transaction Documents has been made
by the Purchaser independently of any other purchaser of Units. Nothing
contained herein or in any Transaction Document, and no action taken by any
purchaser of Units pursuant thereto, shall be deemed to constitute such
purchasers as a partnership, an association, a joint venture, or any other kind
of entity, or create a presumption that the purchasers of Units are in any way
acting in concert or as a group with respect to such obligations or the
transactions contemplated by the Transaction Document. The Purchaser
acknowledges that no other purchaser of Units has acted as agent for the
Purchaser in connection with making its investment hereunder and that no other
purchaser of Units will be acting as agent of the Purchaser in connection with
monitoring its investment in the Units or enforcing its rights under the
Transaction Documents. The Purchaser shall be entitled to independently protect
and enforce its rights, including without limitation the rights arising out of
this Agreement or out of the other Transaction Documents, and it shall not be
necessary for any other purchaser of Units to be joined as an additional party
in any proceeding for such purpose.
6. Prospectus Delivery Requirement. The Purchaser hereby covenants with
the Company not to make any sale of the Units or the Securities without
complying with the provisions hereof and of the Registration Rights Agreement,
and without effectively causing the prospectus delivery requirement under the
Securities Act to be satisfied (unless the Purchaser is selling such Units or
Securities in a transaction not subject to the prospectus delivery requirement).
7. Shareholder Approval. The Company represents and warrants to the
Purchaser that the vote of the Company's Stockholders will not be required to
approve the issuance of the Units.
8. Indemnification of Purchaser. In addition to the indemnity provided
in the Registration Rights Agreement, the Company will indemnify and hold the
Purchaser and its directors, officers, shareholders, members, managers,
partners, employees and agents (each, a "Purchaser Party") harmless from any and
all losses, liabilities, obligations, claims, contingencies, damages, costs and
expenses, including all judgments, amounts paid in settlements, court costs, and
reasonable attorneys' fees and costs of investigation (collectively, "Losses")
that any such Purchaser Party may suffer or incur as a result of or relating to
any misrepresentation, breach, or inaccuracy of any representation, warranty,
covenant, or agreement made by the Company in any Transaction Document. In
addition to the indemnity contained herein, the Company will reimburse each
Purchaser Party for its reasonable legal and other expenses (including the cost
of any investigation, preparation, and travel in connection therewith) incurred
in connection therewith, as such expenses are incurred.
9. Form 8-K/Non-Public Information. No later than the first trading day
following the Closing Date, the Company shall file a Current Report on Form 8-K
disclosing the consummation of the transactions contemplated by this Agreement
and attaching copies of the related agreements, and disclosing any and all
material non-public information that has been communicated to the Purchaser by
or on behalf of the Company in connection with the transactions contemplated by
this Agreement. In addition, the Company shall make such other filings and
notices in the manner and time required by the SEC in connection with the
consummation of the transactions contemplated by this Agreement. Subsequent to
the Closing, the Company covenants and agrees that neither it nor any other
person acting on its behalf will provide Purchaser or its agents or counsel with
any information that the Company believes constitutes material non-public
information, unless prior thereto Purchaser shall have executed a written
agreement regarding the confidentiality and use of such information. The Company
understands and confirms that Purchaser shall be relying on the foregoing
representations in effecting transactions in securities of the Company.
10. Further Assurances. The parties hereto will, upon reasonable
request, execute and deliver all such further assignments, endorsements and
other documents as may be necessary in order to perfect the purchase by the
Purchaser of the Units.
11. Entire Agreement; No Oral Modification. This Agreement contains the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings with respect
thereto and may not be amended or modified except in a writing signed by both of
the parties hereto.
12. Binding Effect; Benefits. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, successors
and assigns; however, nothing in this Agreement, expressed or implied, is
intended to confer on any other person other than the parties hereto, or their
respective heirs, successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York and the United States of
America, both substantive and remedial. Any judicial proceeding brought against
either of the parties to this agreement or any dispute arising out of this
Agreement or any matter related hereto shall be brought in the courts of the
State of New York, New York County, or in the United States District Court for
the Southern District of New York and, by its execution and delivery of this
agreement, each party to this Agreement accepts the jurisdiction of such courts.
15. Prevailing Parties. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party shall be entitled to receive and the
nonprevailing party shall pay upon demand reasonable attorneys' fees in addition
to any other remedy.
16. Notices. All communication hereunder shall be in writing and, if
sent to you shall be mailed, delivered, telegraphed or sent by facsimile or
electronic mail, and confirmed to a Purchaser at the address set forth on the
signature page of this Agreement, or if sent to the Company, shall be mailed,
delivered, telegraphed or sent by facsimile or electronic mail and confirmed to
the Company at 0000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxxx, Chairman, President and Chief Executive Officer,
Facsimile: (000) 000-0000, e-mail: xxxx.xxxxxxx@xxxxxxxx.xxx, with a copy to
Xxxx Xxxxxxxxx, Esq. at Xxxxxx & Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx Xxxx, Xxx Xxxx 00000, Facsimile: (000) 000-0000, e-mail:
xxxxxxxxxx@xxxxxxxx.xxx.
17. Headings. The section headings herein are included for convenience
only and are not to be deemed a part of this Agreement.
[Signature on following page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
SIRICOMM, INC.
By:
---------------------------
Name:
Its:
[Counterpart Signature Pages Attached]
Counterpart Signature Page to Subscription Agreement
INVESTOR
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By:
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Print Name and Title
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Principal Residence or Executive Office
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IRS Tax Identification No.
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Telephone Number
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Fax Number
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E-mail Address
X $ = $
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Number of Units Price per Unit Purchase Price
Exhibit A
[Copy of Investor Questionnaire]
