EXHIBIT 4.14
EXHIBIT A
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
This Offshore Securities Subscription Agreement
("Agreement") is executed in reliance upon the transaction
exemption afforded by Regulation S ("Regulation S") as
promulgated by the Securities and Exchange Commission ("SEC"),
under the Securities Act of 1933, as amended ("1933 Act").
This Agreement has been executed by the undersigned in
connection with the private placement of up to $1,120,000 4%
Convertible Debentures (hereinafter referred to as the
"Debentures") of Systems Communications, Inc., a corporation
organized and existing under the laws of the State of Florida,
U.S.A., NASDAQ Symbol "SCMI" (hereinafter referred to as the
"COMPANY"). The Debentures being sold pursuant to this
Agreement, and the Shares (as defined below), have not been
registered under the 1933 Act and may not be offered or sold in
the United States or to U.S. Persons, other than distributors (as
such terms are defined in Regulation S), unless the Debentures or
the Shares, as the case may be, are registered under the 1933
Act, or an exemption from the registration provisions of the 1933
Act is available. The terms on which the Debentures may be
converted into common stock (the "Shares") and the other terms of
the Debentures are set forth in the pro forma Debenture in Annex
I annexed hereto. This subscription and, if accepted by the
COMPANY, the offer and sale of Debentures and the Shares issuable
upon conversion thereof (collectively the "Securities"), are
being made in reliance upon the provisions of Regulation S
("Regulation S") under the 1933 Act.
The undersigned
NAME: TIMBOOM LTD.
ADDRESS: 00 XXXXXXX XXXXXX
XXXXX XXXXXXX, XXXXXX
if applicable, a [Corporation][Partnership][Trust] organized
under the laws of Ireland, a non USA jurisdiction (hereinafter
referred to as the "PURCHASER")
hereby represents and warrants to, and agrees with, the COMPANY
as follows:
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1. Agreement to Subscribe.
a. Subscription Amount. The undersigned hereby subscribes
for $1,120,000 in principal amount of 4% Debentures.
b. Form of Payment. The PURCHASER shall pay the purchase
price for the Debentures by delivering immediately
available funds in United States Dollars to the escrow
agent identified in the Joint Escrow Instructions
attached hereto as Annex II (the "Escrow Agent").
Delivery of such funds to the COMPANY by the Escrow
Agent shall be made against delivery by the COMPANY of
one or more Debentures in accordance with this
Agreement. By signing this Agreement, the PURCHASER
and the COMPANY each agrees to all of the terms and
conditions of, and becomes a party to, the Joint Escrow
Instructions attached hereto as Annex II, all of the
provisions of which are incorporated herein by this
reference as if set forth in full.
c. Method of Payment. Payment of the purchase price for
the Debentures shall be made by wire transfer of funds
to:
Bank of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
for credit to the account of
Xxxxxxx & Prager, Attorneys
Escrow Account No. 637-0000000
Not later than three (3) business days after acceptance
and execution of this Agreement by the COMPANY, the
PURCHASER shall deposit with the Escrow Agent the
aggregate subscription price for the Debentures.
2. Subscriber Representations and Covenants; Access to
Information; Independent Investigation.
a. Offshore Transaction. PURCHASER represents,
warrants and covenants to COMPANY as follows:
(i) PURCHASER is not a U.S. Person as that term
is defined under Regulation S.
(ii) PURCHASER is outside the United States as of
the date of the execution and delivery of
this Agreement.
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(iii) PURCHASER is purchasing the Debentures
for its own account and not on behalf of any
U.S. Person, and PURCHASER is the sole
beneficial owner of the Debentures, and has
not pre-arranged any sale with any purchaser
or purchasers in the United States.
(iv) PURCHASER represents and warrants and hereby
agrees that all offers and sales of the
Debentures prior to the expiration of a
period commencing on the date of the receipt
of funds by the COMPANY and ending 40 days
thereafter (the "Restricted Period") shall
only be made in compliance with the safe
harbor contained in Regulation S, pursuant to
the registration provisions under the 1933
Act or pursuant to an exemption from
registration, and all offers and sales after
the expiration of the 40-day period shall be
made only pursuant to such registration or to
an exemption from registration.
(v) PURCHASER acknowledges that the purchase of
the Debentures involves a high degree of risk
, is aware of the risks and further
acknowledges that it can bear the economic
risk of the purchase of the Debentures,
including the total loss of its investment.
(vi) PURCHASER understands that the Debentures are
being offered and sold to it in reliance on
specific exemptions from the registration
requirements of U.S. securities laws and that
the COMPANY is relying upon the truth and
accuracy of the representations, warranties,
agreements, acknowledgements and
understandings of PURCHASER set forth herein
in order to determine the applicability of
such exemptions and the suitability of
PURCHASER to acquire the Debentures, and the
Shares issuable upon conversion thereof.
PURCHASER represents and warrants that the
information contained herein is complete and
accurate. PURCHASER further represents and
warrants that it will notify the COMPANY
immediately upon the occurrence of any
material change therein occurring prior to
the issuance of Shares upon conversion of the
Debenture.
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(vii) PURCHASER is sufficiently experienced in
financial and business matters to be capable
of evaluating the merits and risks of its
investments, and to make an informed decision
relating thereto.
(viii) In evaluating its investment, PURCHASER
has consulted its own investment and/or legal
and/or tax advisors. PURCHASER is not
relying on the COMPANY respecting the legal,
tax and other economic considerations of an
investment in the Debentures.
(ix) PURCHASER understands that in the view of the
SEC the statutory basis for the exemption
claimed for this transaction would not be
present if the offering of Debentures, and
the Shares issuable upon conversion thereof,
although in technical compliance with
Regulation S, is part of a plan or scheme to
evade the registration provisions of the 1933
Act. PURCHASER is acquiring the Debentures
for investment purposes and has no present
intention to sell the Debentures, or the
Shares issuable upon conversion thereof, in
the United States or to a U.S. Person or for
the account or benefit of a U.S. Person
either now or after the expiration of the
Restricted Period.
(x) PURCHASER is not an underwriter of, or dealer
in, the Securities, and PURCHASER is not
participating, pursuant to a contractual
agreement, in the distribution of the
Securities.
(xi) PURCHASER represents, warrants
and agrees, that PURCHASER, will not,
directly or indirectly, or through one or
more intermediaries, maintain any short
position in the Shares of the COMPANY during
the Restricted Period.
(xii) During the period commencing on the
Closing Date (as defined herein) and ending
on the 41st day following such date,
PURCHASER will not sell, commit or agree to
sell or pledge any shares of Common Stock of
the COMPANY or any other securities
convertible into or exercisable for shares of
Common Stock of the COMPANY.
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(xiii) PURCHASER has taken no action which
would give rise to any claim by any person
for brokerage commission, finders' fees or
the like relating to this Agreement or the
transactions contemplated hereby.
b. Current Public Information. PURCHASER
acknowledges that PURCHASER has been furnished
with or has acquired copies of the COMPANY's Form
10 filed with the SEC, and Forms 10-Q and 8-K
filed thereafter (collectively the "SEC Filings").
PURCHASER is not relying upon any representations
or other information (whether oral or written)
other than as set forth in the SEC filings or in
Annex V.
c. Independent Investigation; Access. PURCHASER
acknowledges that PURCHASER, in making the
decision to purchase the Debentures subscribed
for, has relied upon independent investigations
made by it and its representatives, if any, and
PURCHASER and such representatives, if any, have,
prior to any sale to it, been given access and the
opportunity to examine all material publicly
available, books and records of the COMPANY, all
material contracts and documents relating to this
offering and an opportunity to ask questions of,
and to receive answers from the COMPANY or any
person acting on its behalf concerning the terms
and conditions of this offering. PURCHASER and
its advisors, if any, have been furnished with
access to all publicly available materials
relating to the business, finances and operation
of the COMPANY and materials relating to the offer
and sale of the Debentures which have been
requested. PURCHASER and its advisors, if any,
have received complete and satisfactory answers to
any such inquiries.
d. No Government Recommendation or Approval.
PURCHASER understands that no federal or state
agency has passed on or made any recommendation or
endorsement of the Securities.
e. Entity Purchasers. If PURCHASER is a partnership,
limited liability company, limited liability
partnership, corporation, trust, or similar
entity, the person executing this Agreement on its
behalf represents and warrants that:
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(i) He or she has made due inquiry to determine
the truthfulness of the representations and
warranties made pursuant to this Agreement.
(ii) He or she is duly authorized to make this
investment and to enter into and execute this
Agreement on behalf of such entity.
f. Individual Purchasers. PURCHASER, if an
individual, represents that he or she has reached
the age of 21 and has adequate means for providing
for his or her current and anticipated financial
needs and possible contingencies for emergencies
and has no need for liquidity in the proposed
investment.
g. Binding Commitment. This Agreement constitutes a
legal, valid and binding obligation of the
PURCHASER. The PURCHASER has full power, right
and authority to enter into and perform this
Agreement. The execution and delivery and
performance of this Agreement will not violate or
be in conflict with any order, judgment,
injunction, agreement or controlling document to
which the PURCHASER is a party or by which it is
bound. If the PURCHASER is an entity, it was not
formed for the specific purpose of acquiring the
Debenture.
h. Foreign Laws. PURCHASER hereby covenants that it
will comply with all laws and regulations in each
foreign jurisdiction in which it purchases,
offers, sells or deliver the Securities, or has in
its possession or distributes any offering
material.
3. COMPANY Representations.
a. Reporting Company Status. The COMPANY is a
corporation duly organized, validly existing and
in good standing under the laws of the State of
Florida and is duly qualified as a foreign
corporation in all jurisdictions in which the
failure to so qualify would have a material
adverse effect on the COMPANY and its subsidiaries
taken as a whole. The COMPANY is a "Reporting
Issuer" as defined by Rule 902 of Regulation S.
The COMPANY has registered its Common Stock
pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and
the Common Stock trades on the NASD/Bulletin
Board, and has received no notice, either oral or
written, with respect to its continued eligibility
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for such listing. The COMPANY has filed all
material required to be filed pursuant to all
reporting obligations under either Section 13(a)
or 15(d) of the Exchange Act for a period of at
least twelve (12) months immediately preceding the
offer or sale of the Debentures, or such shorter
period as may be required by law.
b. Offshore Transaction. The COMPANY has not offered
or sold the Debentures to any person in the United
States, or, to the best knowledge of the COMPANY,
any identifiable groups of U.S. citizens abroad,
or any U.S. person as that term is defined in
Regulation S. At the time the buy order for the
Debentures was originated, the COMPANY and/or its
agents reasonably believed PURCHASER was outside
the United States and was not a U.S. Person.
c. No Directed Selling Efforts. In regard to this
transaction, the COMPANY has not conducted any
"direct selling efforts" as that term is defined
in Rule 902 of Regulation S nor has the COMPANY
conducted any general solicitation relating to the
offer and sale of the within securities to persons
resident within the United States or elsewhere.
d. Terms of Debentures. The COMPANY will issue the
Debentures in accordance with the terms of Annex I
attached hereto.
e. Legality. The COMPANY has the requisite corporate
power and authority to enter into this Agreement
and to sell and deliver the Debentures; this
Agreement and the issuance of the Debentures have
been duly and validly authorized by all necessary
corporate action by the COMPANY; this Agreement
has been duly and validly executed and delivered
by and on behalf of the COMPANY, and is a valid
and binding agreement of the COMPANY, enforceable
against it in accordance with its terms, except as
enforceability may be limited by general equitable
principles, bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other
laws affecting creditors rights generally.
f. Non-Contravention. The execution and delivery of
this Agreement and the consummation of the
issuance of the Debentures, other than the
conversion provision thereof, and the transactions
contemplated by this Agreement and the Debentures
do not and will not conflict with or result in a
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breach by the COMPANY of any of the terms or
provisions of, or constitute a default under, the
articles of incorporation or by-laws of the
COMPANY, or any indenture, mortgage, deed of
trust, or other material agreement or instrument
to which the COMPANY is a party or by which it or
any of its properties or assets are bound, or any
existing applicable law, rule or regulation of the
United States of any State thereof or any
applicable decree, judgment or order of any
Federal or State court, Federal or State
regulatory body, administrative agency or other
United States governmental body having
jurisdiction over the COMPANY or any of its
properties or assets.
g. Filings. The COMPANY undertakes and agrees to
make all necessary filings in connection with the
sale of the Debentures as required by United
States laws and regulations or any domestic
securities exchange or trading market.
h. Absence of Certain Changes. Since December 31,
1995, there has been no material adverse
development in the assets, liabilities, business,
properties, operations, financial condition or
results of operations of the COMPANY, except as
disclosed in the SEC Filings or in Annex V.
i. The COMPANY has legally available sufficient
authorized and unissued Shares as may be
reasonably necessary to effect the conversion of
the Debentures.
j. Litigation. There is no action, suit or
proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending
or, to the knowledge of the COMPANY, threatened,
against or affecting the COMPANY, or any of its
properties, which might result in any material
adverse change in the condition (financial or
otherwise) or in the earnings, business affairs or
business prospects of the COMPANY, or which might
materially and adversely affect the properties or
assets thereof.
k. No Default. Except as set forth in Annex V, the
COMPANY is not in default in the performance or
observance of any material obligation, agreement,
covenant or condition contained in any indenture,
mortgage, deed of trust or other material
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instrument or agreement to which it is a party or
by which it or its property may be bound, and
neither the execution, nor the delivery by the
COMPANY, nor the performance by the COMPANY of its
obligations under this Agreement or the
Debentures, other than the conversion provision
thereof, will conflict with or result in the
breach or violation of any of the terms or
provisions of, or constitute a default or result
in the creation or imposition of any lien or
charge on any assets or properties of the COMPANY
under, any material indenture, mortgage, deed of
trust or other material agreement or instrument to
which the COMPANY is a party or by which it is
bound or any statute or the Certificate of
Incorporation or By-Laws of the COMPANY, or any
decree, judgment, order, rule or regulation of any
court or governmental agency or body having
jurisdiction over the COMPANY or its properties.
l. SEC Filings. None of the SEC Filings with the
Securities and Exchange Commission since January
1, 1995 contained, at the time they were filed,
any untrue statement of a material fact or omit to
state any material fact required to be stated
therein or necessary to make the state therein in
light of the circumstances under which they were
made, not misleading. The COMPANY has since
January 1, 1995 timely filed all requisite forms,
reports and exhibits thereto with the Securities
and Exchange Commission.
m. Full Disclosure. There is no fact known to the
COMPANY (other than general economic conditions
known to the public generally) that has not been
disclosed in writing to the PURCHASER that (i)
could reasonably be expected to have a material
adverse effect on the condition (financial or
otherwise) or in the earnings, business affairs,
business prospects, properties or assets of the
COMPANY or (ii) could reasonably be expected to
materially and adversely affect the ability of the
COMPANY to perform its obligations pursuant to
this Agreement.
n. Prior Issues. During the twelve (12) months
preceding the date hereof, the Company has not
issued any securities pursuant to Regulation S or
Regulation D under the Act, except as set forth in
Exhibit 3(m). The presently outstanding
[unconverted] principal amount of each such
issuance as at ______ , l9__ are set forth in
Exhibit.
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4. Transfer Agent Instructions.
a. Debentures. Upon the conversion of the
Debentures, the PURCHASER thereof shall submit
such Debenture and the COMPANY's Transfer Agent
shall, within two (2) business days of receipt of
such Debenture issue one or more certificates
representing that number of shares of Common Stock
into which the Debenture or Debentures are
convertible in accordance with the provisions
regarding conversion set forth in Annex I hereto.
The COMPANY shall act as Debenture Registrar and
shall maintain an appropriate ledger containing
the necessary information with respect to each
Debenture.
b. Subject to the completeness and accuracy of the
PURCHASER's representations and warranties herein,
upon the conversion of any Debenture by a person
who is a non-U.S. Person, the COMPANY, shall, at
its expense, take all necessary action (including
the issuance of an opinion of counsel) to assure
that the COMPANY's transfer agent shall issue
stock certificates without restrictive legend or
stop orders in the name of PURCHASER (or its
nominee (being a non-U.S. Person) or such non-U.S.
Persons as may be designated by PURCHASER) and in
such denominations to be specified at conversion
representing the number of shares of Common Stock
issuable upon such conversion, as applicable. The
COMPANY warrants that no instructions other than
these instructions, instructions to impose a "stop
transfer" instruction with respect to the
Debenture until the end of the Restricted Period
have been or will be given to the transfer agent
and that the Shares will not be subject to any
transfer limitations other than those imposed by
applicable securities laws. Nothing in this
Section 4, however, shall affect in any way
PURCHASER's or such nominee's obligations and
agreement to comply with all applicable securities
laws upon resale of the Securities.
c. It will permit the PURCHASER to exercise its right
to convert the Debentures by telecopying an
executed and completed Notice of Conversion to the
COMPANY and delivering within three business days
thereafter, the original Notice of Conversion and
the Debenture representing the Shares to the
COMPANY by express courier. Each date on which a
Notice of Conversion is telecopied to and received
by the COMPANY in accordance with the provisions
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hereof shall be deemed a Conversion Date. The
COMPANY will transmit the certificates
representing the Shares of Common Stock issuable
upon conversion of any Debenture (together with
the Debentures representing the Shares not so
converted) to the PURCHASER via express courier,
by electronic transfer or otherwise, within three
business days after receipt by the COMPANY of the
original Notice of Conversion and the Debenture
representing the Shares to be converted (the
"Delivery Date").
c. The Company understands that a delay in the
issuance of the Shares of Common Stock beyond the
Delivery Date could result in economic loss to the
Buyer. As compensation to the Buyer for such
loss, the Company agrees to pay late payments to
the Buyer for late issuance of Shares upon
Conversion in accordance with the following
schedule (where "No. Business Days Late" is
defined as the number of business days beyond five
(5) business days from Delivery Date:
Late Payment For Each
$10,000 of Debenture
No. Business Days Late Principal Amount
Being Converted
1 $50
2 $100
3 $150
4 $200
5 $250
6 $300
7 $350
8 $400
9 $450
10 $500
>10 $500 + $100 for each Business
Day Late beyond 10 days
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The Company shall pay any payments incurred under this Section in
immediately available funds upon demand. Nothing herein shall
limit Buyer's right to pursue actual damages for the Company's
failure to issue and delivery Common Stock to the Buyer.
Furthermore, in addition to any other remedies which may be
available to the Buyer, in the event that the Company fails for
any reason to effect delivery of such shares of Common Stock
within five business days after the Delivery Date, the Buyer will
be entitled to revoke the relevant Notice of Conversion by
delivering a notice to such effect to the Company whereupon the
Company and the Buyer shall each be restored to their respective
positions immediately prior to delivery of such Notice of
Conversion.
5. Exemption; Reliance on Representation.
(a) PURCHASER understands that the offer and sale of
the Debentures, and the Shares issuable upon conversion thereof,
is not being registered under the 1933 Act. The COMPANY is
relying on the rules governing offers and sales made outside the
United States pursuant to Regulation S. Rules 901 through 904 of
Regulation S govern this transaction.
(b) Notwithstanding the provisions hereof, in no event
(except with respect to an Event of Mandatory Conversion upon the
maturity of the Debenture) shall the holder be entitled to
convert any Debenture in excess of that number of shares upon
conversion of which the sum of (1) the number of shares of Common
Stock beneficially owned by the PURCHASER and its affiliates
(other than shares of Common Stock which may be deemed
beneficially owned through the ownership of the unconverted
portion of the Debenture), and (2) the number of shares of Common
Stock issuable upon the conversion of the Debenture with respect
to which the determination of this proviso is being made, would
result in beneficial ownership by the PURCHASER and its
affiliates of more than 4.9% of the outstanding shares of Common
Stock. For purposes of the proviso to the immediately preceding
sentence, beneficial ownership shall be determined in accordance
with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Regulation 13 D-G thereunder, except as otherwise
provided in clause (1) of such proviso.
6. Closing Date and Escrow Agent. The date of the
issuance of the Debentures and the sale of the Debentures as
evidenced by receipt by the COMPANY from the Escrow Agent of
PURCHASER's purchase funds (the "Closing Date") shall be no later
than two (2) business days after execution hereof by all parties
or such other mutually agreed to time. PURCHASER shall, within
three (3) business days after acceptance and execution of this
Agreement by the COMPANY, deliver the necessary funds as
indicated in Paragraph 1 to the Escrow Agent. Debentures will be
delivered to the Escrow Agent at the instructions of the COMPANY.
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PURCHASER agrees that the Escrow Agent has no liability as a
result of any fraudulent or unlawful conduct of any other party,
and agrees to hold the Escrow Agent harmless.
7. Conditions to the COMPANY's Obligation to Sell.
PURCHASER understands that COMPANY's obligation to sell the
Debentures is conditioned upon:
a. Acceptance by PURCHASER of an Agreement for the
sale of Debentures;
b. Delivery to the Escrow Agent by each PURCHASER of
immediately available funds in United States
Dollars as payment in full for the purchase of the
Debentures; and
c. The accuracy on the Closing Date of the
representations and warranties of PURCHASER
contained in this Agreement and the performance by
PURCHASER on or before the Closing Date of all
covenants and agreements of PURCHASER required to
be performed on or before the Closing Date.
d. There shall not be in effect any law, rule or
regulation prohibiting or restricting the
transactions contemplated hereby, or requiring any
consent or approval which shall not have been
obtained.
8. Conditions to PURCHASER's Obligation to Purchase. The
COMPANY understands that PURCHASER's obligation to purchase the
Debentures is conditioned upon:
a. The receipt and acceptance by the COMPANY of this
Agreement as evidenced by execution of this
Agreement by the President or any Vice President
of the COMPANY. The acceptance of funds by the
COMPANY shall be deemed to be constructive
acceptance of this Agreement;
b. Delivery of Debentures to Escrow Agent as herein
set forth;
c. The accuracy on the Closing Date of the
representations and warranties of the COMPANY
contained in this Agreement and the performance by
the COMPANY on or before the Closing Date of all
covenants and agreements of the COMPANY required
to be performed on or before the Closing Date; and
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d. Delivery to the Escrow Agent of an opinion of
counsel for the COMPANY, dated the Closing Date
and addressed to PURCHASER, in the form attached
hereto as Annex III.
9. Registration of the Securities. After the expiration
of the Restricted Period, if the COMPANY fails to issue to the
PURCHASER or the PURCHASER's transferees certificates for shares
of Common Stock issuable upon conversion of the Debentures
bearing no restrictive legend and free of stop transfer
instructions for any reason other than the COMPANY's reasonable
good faith belief that the representations and warranties made by
the PURCHASER in this Agreement were untrue when made, then the
COMPANY shall be required, at the request of the PURCHASER and at
the COMPANY's expense, to effect the registration of such shares
of Common stock under the act, and relevant Blue Sky laws as
promptly as is practicable. The COMPANY and the PURCHASER shall
cooperate in good faith in connection with the furnishing of
information required for such registration and the taking of such
other actions as may be legally or commercially necessary in
order to effect such registration. The COMPANY shall file a
registration statement within thirty (30) days of PURCHASER's
written demand therefor and shall use its best efforts to cause
such registration statement to become effective as soon as
practicable thereafter. Such best efforts shall include, but not
be limited to, promptly responding to all comments received from
the staff of the Securities and Exchange Commission with respect
to such registration statement and promptly preparing and filing
amendments to such registration statement which are responsive to
the comments received from the staff of the Securities and
Exchange Commission. Once declared effective by the Securities
and Exchange Commission, the COMPANY shall cause such
registration statement to remain effective until the earlier of
(i) the sale by the PURCHASER of all shares of Common Stock so
registered or (ii) 120 days after the effective date of such
registration statement. In the event that the COMPANY has not
effected the registration of such shares of Common Stock under
the Act and relevant Blue Sky laws within 120 days after the date
of the PURCHASER's demand therefor, the COMPANY shall pay to the
PURCHASER by wire transfer, as liquidated damages for such
failure and not as a penalty, an amount in cash equal to
$100,000. Such payment shall be made to the PURCHASER
immediately upon expiration of the 120-day period referenced in
the preceding sentence if the registration of such shares of
Common Stock is not effected by such date; provided, however,
that the payment of such liquidated damages shall not relieve the
COMPANY from its obligations to register such shares of Common
Stock pursuant to this Section 9.
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10. Certain Agreements. The COMPANY covenants and agrees
that it will not (i) enter into any subsequent or further offer
or sale of common stock or securities convertible into common
stock with any third party, which securities would be tradeable
free of restriction prior to one hundred eighty (180) days from
the Closing Date. However, clause 10(i) will not apply to (i)
the issuance of securities other than for cash in connection with
a merger, consolidation, sale of assets, disposition of a
business, product or license by the COMPANY, strategic alliance,
public offering, securities issued at the then current market
price, in exercise of options, or (ii) the exchange of the
capital stock of the COMPANY for assets, stock or other joint
venture interests.
11. Governing Law. This Agreement will be construed and
enforced in accordance with and governed by the laws of the State
of New York, except for matters arising under the Act, without
reference to principles of conflicts of law. Each of the parties
consents to the jurisdiction of the federal courts whose
districts encompass any part of the State of New York or the
state courts of the State of New York in connection with any
dispute arising under this Agreement and hereby waives, to the
maximum extent permitted by law, any objection, including any
objection based on forum non conveniens, to the bringing of any
such proceeding in such jurisdictions. Each party hereby agrees
that if another party to this Agreement obtains a judgment
against it in such a proceeding, the party which obtained such
judgment may enforce same by summary judgment in the courts of
any country having jurisdiction over the party against whom such
judgment was obtained, and each party hereby waives any defenses
available to it under local law and agrees to the enforcement of
such a judgment. Each party to this Agreement irrevocably
consents to the service of process in any such proceeding by the
mailing of copies thereof by registered or certified mail,
postage prepaid, to such party at its address set forth herein.
Nothing herein shall affect the right of any party to serve
process in an other manner permitted by law.
12. Notices. Any notice required or permitted hereunder
shall be given in writing (unless otherwise specified herein) and
shall be deemed effectively given upon personal delivery or three
business days after deposit in the United States Postal Service,
by registered or certified mail with postage and fees prepaid,
addressed to each of the other parties thereunto entitled at the
following addresses, or at such other addresses as a party may
designate by ten days advance written notice to each of the other
parties hereto.
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COMPANY: Systems Communications, Inc.
0000 Xxxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
ATTN: Mr. Xxxxxx Xxxxxxxx
with a copy to:
PURCHASER: At the address set forth on the first page of this Agreement.
ESCROW AGENT: Xxxxxxx & Prager, Esqs.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
13. Survival of Representations and Warranties.
PURCHASER's representations and warranties shall survive the
execution and delivery hereof of this Agreement and the delivery
of the Debenture.
14. Confidentiality. Each of the COMPANY and the PURCHASER
agrees to keep confidential and not to disclose to or use for the
benefit of any third party the terms of this Agreement or any
other information which at any time is communicated by the other
party as being confidential without the prior written approval of
the other party; provided, however, that this provision shall not
apply to information which, at the time of disclosure, is already
part of the public domain (except by breach of this Agreement)
and information which is required to be disclosed by law.
15. Indemnification. Each of the COMPANY and the PURCHASER
agrees to indemnify the other and to hold the other harmless from
and against any and all losses, damages, liabilities, costs and
expenses (including reasonable attorneys' fees) which the other
may sustain or incur in connection with the breach by the
indemnifying party of any representation, warranty or covenant
made by it in this Agreement.
17
SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the
foregoing statements are true and correct and that it has caused
this Offshore Securities Subscription Agreement to be duly
executed on its behalf this ________ day of ___________________,
1997.
____________________________________
Printed Name of Subscriber
By:______________________________
(Signature of Authorized Person)
____________________________________
Printed Name and Title
Accepted this __________ day of the month of ___________________,
199___.
SYSTEMS COMMUNICATIONS, INC.
By: __________________________________________
Title: _______________________________
All correspondence and delivery of certificates and
confirmations should be addressed to the above named person and
sent by the COMPANY to his _____ business _____ home address
(check one).
Capacity of Subscriber (check one):
Individual __________
Corporation __________
Partnership __________
Other __________ (please specify)
Ownership of Debentures (check one):
Individual __________
Joint Tenants,with right of survivorship __________ *
Tenants in Common __________ *
Tenants in Entirety __________ *
Community Property __________ *
Country of Citizenship: ______________________________________________
Country of incorporation or formation: _________________________________
18
* If you are purchasing Debentures with only your spouse as co-
owner, both you and your spouse must sign the signature
page. If any co-owner is not your spouse, all co-owners
must sign the signature page.
Name of PURCHASER Representative, if any: __________________________
Address: ___________________________________
___________________________________
Telephone: __________________________________
Full Name and Address of PURCHASER for Registration Purposes:
NAME:
_______________________________________________________________
ADDRESS:
______________________________________________________
______________________________________________________
______________________________________________________
TEL. NO.
_______________________________________________________________
FAX. NO.
_______________________________________________________________
CONTACT NAME:
_______________________________________________________________
19
Delivery Instructions (if different from Registration Name):
NAME:
_______________________________________________________________
ADDRESS:
_______________________________________________________________
_________________________________________________________
_________________________________________________________
TEL. NO.
_______________________________________________________________
FAX. NO.
_______________________________________________________________
CONTACT NAME:
_______________________________________________________________
SPECIAL
INSTRUCTIONS:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
