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Exhibit 4 PICK COMMUNICATIONS CORP.
SUBSCRIPTION AGREEMENT made as of this 31st day of July, 1998
between PICK Communications Corp., a Nevada corporation with offices at Wayne
Xxxxxxxxxxx Xxxxx XX, Xxxxx Xxxxx, Xxxxx, Xxx Xxxxxx 00000 (the "Company") and
the undersigned (the "Subscriber").
WHEREAS, the Company desires to issue a minimum of 20 and a maximum
of 40 units ("Units") in a private placement, each Unit consisting of $100,000
principal amount of 10% senior secured promissory notes (the "Notes") in the
form attached as Exhibit (ii) to the Confidential Term Sheet dated July 13, 1998
(the "Term Sheet") and warrants to purchase 100,000 shares of the Company's
Common Stock (the "Warrants") in the form attached as Exhibit (iii) to the Term
Sheet on the terms and conditions hereinafter set forth and the Subscriber
desires to acquire the number of Units set forth on the signature page hereof;
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants hereinafter set forth, the parties hereto do hereby agree as
follows:
I. SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY AND COVENANTS OF
SUBSCRIBER
1.1 Subject to the terms and conditions hereinafter set forth,
the Subscriber hereby subscribes for and agrees to purchase from the Company
such number of Units as is set forth upon the signature page hereof at a price
equal to $100,000 per Unit, and the Company agrees to sell such Units to the
Subscriber for said purchase price subject to the Company's right to sell to the
Subscriber such lesser number of Units as the Company may, in its sole
discretion, deem necessary or desirable. The purchase price is payable by
certified or bank check made payable to United States Trust Company of New York,
as Escrow Agent for PICK Communications, or by wire transfer of funds,
contemporaneously with the execution and delivery of this Subscription
Agreement. The Notes and Warrants will be delivered by the Company within 10
days following the consummation of this offering as set forth in Article III
hereof. The Subscriber understands however, that this purchase of Units is
contingent upon the Company making sales of a minimum of 20 Units ($2,000,000
principal amount of Notes and 2,000,000 Warrants) prior to the Termination Date
as defined in Article III hereof.
1.2 The Subscriber recognizes that the purchase of Units
involves a high degree of risk in that (i) an investment in the Company is
highly speculative and only investors who can afford the loss of their entire
investment should consider investing in the Company and the Units; (ii) he may
not be able to liquidate his investment; (iii) transferability of the securities
comprising the Units is extremely limited; and (iv) an investor could suffer the
loss of his entire investment, as well as other risk factors as more fully set
forth herein and in the Term Sheet.
1.3 The Subscriber represents and warrants that he is an
"accredited investor" as such term in defined in Rule 501 of Regulation D
promulgated under the United States Securities Act of 1933, as amended (the
"Act"), as indicated by his responses to the Investor Questionnaire, and that he
is able to bear the economic risk of an investment in the Units. The Subscriber
further represents and warrants that the information furnished in the Investor
Questionnaire is accurate and complete in all material respects.
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1.4 The Subscriber acknowledges that he has prior investment
experience, including investment in non-listed and non-registered securities, or
he has employed the services of an investment advisor, attorney or accountant to
read all of the documents furnished or made available by the Company both to him
and to all other prospective investors in the Units and to evaluate the merits
and risks of such an investment on his behalf, and that he recognizes the highly
speculative nature of this investment.
1.5 The Subscriber acknowledges receipt and careful review of
the Term Sheet and all exhibits thereto and other documents furnished in
connection with this transaction (collectively, the "Offering Documents") and
hereby represents that he has been furnished by the Company during the course of
this transaction with all information regarding the Company which he has
requested or desires to know; and that such information and documents have, in
his opinion, afforded the Subscriber with all of the same information that would
be provided him in a registration statement filed under the Act; that he has
been afforded the opportunity to ask questions of and receive answers from duly
authorized officers or other representatives of the Company concerning the terms
and conditions of the offering, and any additional information which he had
requested.
1.6 The Subscriber acknowledges that this offering of Units
may involve tax consequences (including, but not limited to, the possible need
to recognize interest income relating to the Warrants) and that the contents of
the Offering Documents do not contain tax advice or information. The Subscriber
acknowledges that he must retain his own professional advisors to evaluate the
tax and other consequences of an investment in the Units.
1.7 The Subscriber acknowledges that this offering of Units
has not been reviewed by the United States Securities and Exchange Commission
("SEC") because of the Company's representations that this is intended to be a
nonpublic offering pursuant to Sections 4(2) or 3(b) of the Act. The Subscriber
represents that the Notes and Warrants comprising his Units are being purchased
for his own account, for investment and not for distribution or resale to
others. The Subscriber agrees that he will not sell or otherwise transfer the
Notes or the Warrants unless they are registered under the Act or unless an
exemption from such registration is available.
1.8 The Subscriber understands that the Notes and Warrants
comprising the Units have not been registered under Act by reason of a claimed
exemption under the provisions of the Act which depends, in part, upon his
investment intention. In this connection, the Subscriber understands that it is
the position of the SEC that the statutory basis for such exemption would not be
present if his representation merely meant that his present intention was to
hold such securities for a short period, such as the capital gains period of tax
statutes, for a deferred sale, for a market rise, assuming that a market
develops, or for any other fixed period. The Subscriber realizes that, in the
view of the SEC, a purchase now with an intent to resell would represent a
purchase with an intent inconsistent with his representation to the Company, and
the SEC might regard such a sale or disposition as a deferred sale to which such
exemptions are not available.
1.9 The Subscriber understands that Rule 144 (the "Rule")
promulgated under the Act requires, among other conditions, a one year holding
period prior to the resale (in limited amounts) of securities acquired in a
non-public offering without having to satisfy the registration requirements
under the Act. The Subscriber understands that the Company makes no
representation or warranty regarding its fulfillment in the future of any
reporting requirements under
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the Securities Exchange Act of 1934, as amended, or its dissemination to the
public of any current financial or other information concerning the Company, as
is required by the Rule as one of the conditions of its availability. The
Subscriber understands and hereby acknowledges that the Company is under no
obligation to register the securities comprising the Units under the Act, with
the exception of certain registration rights set forth in Article IV herein. The
Subscriber consents that the Company may, if it desires, permit the transfer of
the Warrants or the shares of Common Stock issuable upon exercise of the
Warrants (the "Warrant Shares") out of his name only when his request for
transfer is accompanied by an opinion of counsel reasonably satisfactory to the
Company that neither the sale nor the proposed transfer results in a violation
of the Act or any applicable state "blue sky" laws (collectively "Securities
Laws") and subject to the provisions of Section 1.10 hereof. The Subscriber
agrees to hold the Company and its directors, officers and controlling persons
and their respective heirs, representatives, successors and assigns harmless and
to indemnify them against all liabilities, costs and expenses incurred by them
as a result of any misrepresentation made by him contained herein or in the
Investor Questionnaire or any sale or distribution by the undersigned Subscriber
in violation of any Securities Laws
1.10 The Subscriber agrees not to sell or otherwise dispose of
the Warrants or the Warrant Shares in the public market for 12 months from the
initial closing of this offering without the prior written consent of the
Commonwealth Associates (the "Placement Agent").
1.11 The Subscriber consents to the placement of a legend on
any certificate or other document evidencing the Notes, the Warrants and the
Warrant Shares stating that they have not been registered under the Act and
setting forth or referring to the restrictions on transferability and sale
thereof.
1.12 The Subscriber understands that the Company will review
this Subscription Agreement and the Investor Questionnaire and otherwise review
the financial standing of the Subscriber; and it is agreed that the Company
reserves the unrestricted right to reject or limit any subscription.
1.13 The Subscriber hereby represents that the address of
Subscriber furnished by him at the end of this Subscription Agreement is the
undersigned's principal residence if he is an individual or its principal
business address if it is a corporation or other entity.
1.14 The Subscriber acknowledges that if he is a Registered
Representative of an NASD member firm, he must give such firm the notice
required by the NASD's Rules of Fair Practice, receipt of which must be
acknowledged by such firm on the signature page hereof.
1.15 The Subscriber acknowledges that at such time, if ever,
as the Warrant Shares are registered, sales of such securities will be subject
to state securities laws, including those of states which may require any
securities sold therein to be sold through a registered broker-dealer or in
reliance upon an exemption from registration.
1.16 The Subscriber acknowledges that the maximum number of
Units to be sold pursuant to the Term Sheet may be increased by up to 20
additional Units in the event of over-subscription (the "Over-Allotment Units").
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1.17 If the undersigned Subscriber is a partnership,
corporation, trust or other entity, such partnership, corporation, trust or
other entity further represents and warrants that: (i) it was not formed for the
purpose of investing in the Company; (ii) it is authorized and otherwise duly
qualified to purchase and hold the Units; and (iii) that this Subscription
Agreement has been duly and validly authorized, executed and delivered
constitutes the legal, binding and enforceable obligation of the undersigned.
II. REPRESENTATIONS BY THE COMPANY
The Company represents and warrants to the Subscriber that
prior to the consummation of this offering and at the Closing Date:
(a) The Company is a corporation duly organized, existing and
in good standing under the laws of the State of Nevada and has the corporate
power to conduct the business which it conducts and proposes to conduct and is
qualified to do business in New Jersey.
(b) The execution, delivery and performance of this
Subscription Agreement by the Company will have been duly approved by the Board
of Directors of the Company and all other actions required to authorize and
effect the offer and sale of the Units and the securities contained therein will
have been duly taken and approved.
(c) The Notes and Warrants have been duly and validly
authorized and when issued and paid for in accordance with the terms hereof,
will be duly and validly issued and fully paid and non assessable.
(d) The Company will at all times have authorized and reserved
a sufficient number of Warrant Shares to provide for exercise of the Warrants.
(e) The Company has obtained, or is in the process of
obtaining, all licenses, permits and other governmental authorizations necessary
to the conduct of its business; such licenses, permits and other governmental
authorizations obtained are in full force and effect; and the Company is in all
material respects complying therewith.
(f) The Company knows of no pending or threatened legal or
governmental proceedings to which the Company is a party which could materially
adversely affect the business, property, financial condition or operations of
the Company.
(g) The Company is not in violation of or default under, nor
will the execution and delivery of this Subscription Agreement, the issuance of
the Notes or the Warrants, and the incurrence of the obligations herein and
therein set forth and the consummation of the transactions herein or therein
contemplated, result in a violation of, or constitute a default under, the
Company's articles of incorporation or by-laws, any material obligations,
agreement, covenant or condition contained in any bond, debenture, note or other
evidence of indebtedness or in any material contract, indenture, mortgage, loan
agreement, lease, joint venture or other agreement or instrument to which the
Company is a party or by which it or any of its properties may be bound or any
material order, rule, regulation, writ, injunction, or decree of any government,
governmental instrumentality or court, domestic or foreign.
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(h) The financial information contained in the Offering
Documents presents fairly the financial condition of the Company as of the dates
and for the periods indicated.
III. TERMS OF SUBSCRIPTION
3.1 The subscription period will begin as of July 13, 1998 and
will terminate at 11:59 PM Eastern time on August 31, 1998, unless extended by
the Company and the Placement Agent for up to an additional 30 days (the
"Termination Date"). Of the Xxxxx, 00 will be offered on a "best efforts-all or
none" basis and the remaining 20 Units will be offered on a "best efforts" basis
as more particularly set forth in the Term Sheet. The minimum subscription per
subscriber shall be one Unit ($100,000), provided, however, that smaller
investments may be accepted at the discretion of the Placement Agent and the
Company.
3.2 Placement of the Units will be made by Commonwealth
Associates which will receive (i) a placement fee in the amount of 7% of the
purchase price of the Units placed; (ii) a structuring fee in the amount of 2%
of the purchase price of the Units placed; (iii) equity in the Company in the
form of (a) that number of shares of Common Stock equal to 5% of the gross
proceeds of the Offering divided by the closing bid price on the Initial Closing
Date; and (b) warrants to purchase at an exercise price of $.50 per share that
number of shares of Common Stock equal to 10% of the gross proceeds of the
Offering divided by the closing bid price on the Initial Closing Date; and (iii)
reimbusement of legal fees. Additional compensation in the form of fees and
equity will be paid to a financial advisor as described in the Term Sheet.
3.3 Pending the sale of the Units, all funds paid hereunder
shall be deposited by the Company in escrow with United States Trust Company of
New York. If the Company shall not have obtained subscriptions (including this
subscription) for purchases of 20 Units for an aggregate purchase price of
$2,000,000 on or before the Termination Date, then this subscription shall be
void and all funds paid hereunder by the Subscriber, with interest, shall be
promptly returned to the Subscriber, subject to paragraph 3.5 hereof. If 20
Units are sold at or prior to the Termination Date, then all subscription
proceeds shall be paid over to the Company within ten days thereafter. In such
event, placements of additional Units may continue until the Termination Date,
with subsequent releases of funds to be at the mutual consent of the Company and
the Placement Agent.
3.4 The Subscriber hereby authorizes and directs the Company
to deliver certificates representing the securities to be issued to such
Subscriber pursuant to this Subscription Agreement either (a) to the residential
or business address indicated in the Confidential Purchaser Questionnaire or (b)
directly to the Subscriber's account maintained with the Placement Agent, if
any. (If the Subscriber does not desire the securities to be delivered to such
account, the Subscriber should delete Subsection (b) of this Section 3.4.)
3.5 The Subscriber hereby authorizes and directs the Company
to return any funds, plus interest, for unaccepted subscriptions to the same
account from which the funds were drawn, including any customer account
maintained with the Placement Agent.
3.6 If the Subscriber is not a United States person, such
Subscriber hereby represents that it has satisfied itself as to the full
observance of the laws of its jurisdiction in
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connection with any invitation to subscribe for the Securities or any use of
this Agreement, including (i) the legal requirements within its jurisdiction for
the purchase of the Securities, (ii) any foreign exchange restrictions
applicable to such purchase, (iii) any governmental or other consents that may
need to be obtained, and (iv) the income tax and other tax consequences, if any,
that may be relevant to the purchase, holding, redemption, sale or transfer of
the Securities. Such Subscriber's subscription and payment for, and his or her
continued beneficial ownership of the Securities, will not violate any
applicable securities or other laws of the Subscriber's jurisdiction.
IV. REGISTRATION RIGHTS
4.1 The Company hereby agrees with the holders of the Notes,
the Warrants and the Warrant Shares or their transferees (collectively, the
"Holders") that no later than 30 days after its Annual Report on Form 10-K for
the year ending December 31, 1998 has been filed with the SEC, it will file a
registration statement covering the resale of the Warrant Shares on Form S-3 or
such other form as the Company desires, pursuant to the Act, and the Company
will use its best efforts to cause such registration to become effective as
promptly as practicable thereafter. In the event the Company fails to repay the
Notes prior to the end of the Extension Period (as defined and described in the
Term Sheet), the Company hereby agrees to file the registration statement
required under this Section 4.1 within the 90-day period following the Extension
Period.
The obligation of the Company under this Section 4.1 shall be limited to
one registration statement.
4.2 Registration Procedures. The Company will, until such time
as the Warrant Shares may be sold under Rule 144 without volume limitation:
(a) prepare and file with the SEC a registration
statement with respect to such securities, and use its best efforts to cause
such registration statement to become and remain effective;
(b) prepare and file with the SEC such amendments to
such registration statement and supplements to the prospectus contained therein
as may be necessary to keep such registration statement effective;
(c) furnish to the Holders participating in such
registration and to the underwriters of the securities being registered such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public offering of such
securities;
(d) use its best efforts to register or qualify the
securities covered by such registration statement under such state securities or
blue sky laws of such jurisdictions as the Holders may reasonably request in
writing within twenty (20) days following the original filing of such
registration statement, except that the Company shall not for any purpose be
required to execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified;
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(e) notify the Holders, promptly after it shall receive
notice thereof, of the time when such registration statement has become
effective or a supplement to any prospectus forming a part of such registration
statement has been filed;
(f) notify the Holders promptly of any request by the
SEC for the amending or supplementing of such registration statement or
prospectus or for additional information;
(g) prepare and file with the SEC, promptly upon the
request of any Holders, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for such Holders (and
concurred in by counsel for the Company), is required under the Act or the rules
and regulations thereunder in connection with the distribution of Common Stock
by such Holders;
(h) prepare and promptly file with the SEC and promptly
notify such Holders of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Act, any event shall have
occurred as the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading; and
(i) advise the Holders, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
4.3 Expenses.
(a) With respect to the registration required pursuant
to Section 4.1 hereof, all fees, costs and expenses of and incidental to such
registration, inclusion and public offering (as specified in paragraph (b)
below) in connection therewith shall be borne by the Company, provided, however,
that the Holders shall bear their pro rata share of the underwriting discount
and commissions and transfer taxes.
(b) The fees, costs and expenses of registration to be
borne by the Company as provided in paragraph (a) above shall include, without
limitation, all registration, filing, and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, and all legal fees and
disbursements and other expenses of complying with state securities or blue sky
laws of any jurisdictions in which the securities to be offered are to be
registered and qualified (except as provided in 4.3(a) above). Fees and
disbursements of counsel and accountants for the Holders and any other expenses
incurred by the Holders not expressly included above shall be borne by the
Holders.
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4.4 Indemnification.
(a) The Company will indemnify and hold harmless each
Holder of Warrant Shares which are included in a registration statement pursuant
to the provisions of Section 4.1 hereof, its directors and officers, and any
underwriter (as defined in the Act) for such Holder and each person, if any, who
controls such Holder or such underwriter within the meaning of the Act, from and
against, and will reimburse such Holder and each such underwriter and
controlling person with respect to, any and all loss, damage, liability, cost
and expense to which such Holder or any such underwriter or controlling person
may become subject under the Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue statement or alleged
untrue statement of any material fact contained in such registration statement,
any prospectus contained 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, in light of the circumstances in which they were made, not
misleading; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, damage, liability, cost or expenses
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with information furnished
by such Holder, such underwriter or such controlling person in writing
specifically for use in the preparation thereof.
(b) Each Holder of Warrant Shares included in a
registration pursuant to the provisions of Section 4.1 hereof will indemnify and
hold harmless the Company, its directors and officers, any controlling person
and any underwriter from and against, and will reimburse the Company, its
directors and officers, any controlling person and any underwriter with respect
to, any and all loss, damage, liability, cost or expense to which the Company or
any controlling person and/or any underwriter may become subject under the Act
or otherwise, insofar as such losses, damages, liabilities, costs or expenses
are caused by any untrue statement or alleged untrue statement of any material
fact contained in such registration statement, any prospectus contained 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, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made in reliance upon and in
strict conformity with written information furnished by or on behalf of such
Holder specifically for use in the preparation thereof.
(c) Promptly after receipt by an indemnified party
pursuant to the provisions of paragraph (a) or (b) of this Section 4.4 of notice
of the commencement of any action involving the subject matter of the foregoing
indemnity provisions such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of said paragraph
(a) or (b), promptly notify the indemnifying party of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
hereunder. In case such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party shall have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party,
provided, however, if counsel for the indemnifying party
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concludes that a single counsel cannot under applicable legal and ethical
considerations, represent both the indemnifying party and the indemnified party,
the indemnified party or parties have the right to select separate counsel to
participate in the defense of such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party pursuant to the provisions of said paragraph
(a) or (b) for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, unless (i) the indemnified party shall have employed
counsel in accordance with the provisions of the preceding sentence, (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after the notice of the commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
V. MISCELLANEOUS
5.1 Any notice or other communication given hereunder shall be
deemed sufficient if in writing and sent by registered or certified mail, return
receipt requested, addressed to the Company, at its registered office, Wayne
Xxxxxxxxxxx Xxxxx XX, Xxxxx Xxxxx, Xxxxx, Xxx Xxxxxx 00000, Attention: Chief
Executive Officer and to the Subscriber at his address indicated on the last
page of this Subscription Agreement. Notices shall be deemed to have been given
on the date of mailing, except notices of change of address, which shall be
deemed to have been given when received.
5.2 This Subscription Agreement shall not be changed, modified
or amended except by a writing signed by the parties to be charged, and this
Subscription Agreement may not be discharged except by performance in accordance
with its terms or by a writing signed by the party to be charged.
5.3 This Subscription Agreement shall be binding upon and
inure to the benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns. This Subscription Agreement sets forth
the entire agreement and understanding between the parties as to the subject
matter thereof and merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them.
5.4 Notwithstanding the place where this Subscription
Agreement may be executed by any of the parties hereto, the parties expressly
agree that all the terms and provisions hereof shall be construed in accordance
with and governed by the laws of the State of New York. The parties hereby agree
that any dispute which may arise between them arising out of or in connection
with this Subscription Agreement shall be adjudicated before a court located in
New York City and they hereby submit to the exclusive jurisdiction of the courts
of the State of New York located in New York, New York and of the federal courts
in the Southern District of New York with respect to any action or legal
proceeding commenced by any party, and irrevocably waive any objection they now
or hereafter may have respecting the venue of any such action or proceeding
brought in such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Subscription Agreement or
any acts or omissions relating to the sale of the securities hereunder, and
consent to the service of process in any such action or legal proceeding by
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means of registered or certified mail, return receipt requested, in care of the
address set forth below or such other address as the undersigned shall furnish
in writing to the other.
5.5 This Subscription Agreement may be executed in
counterparts. Upon the execution and delivery of this Subscription Agreement by
the Subscriber, this Subscription Agreement shall become a binding obligation of
the Subscriber with respect to the purchase of Units as herein provided;
subject, however, to the right hereby reserved to the Company to enter into the
same agreements with other subscribers and to add and/or to delete other persons
as subscribers.
5.6 The holding of any provision of this Subscription
Agreement to be invalid or unenforceable by a court of competent jurisdiction
shall not affect any other provision of this Subscription Agreement, which shall
remain in full force and effect.
5.7 It is agreed that a waiver by either party of a breach of
any provision of this Subscription Agreement shall not operate, or be construed,
as a waiver of any subsequent breach by that same party.
5.8 The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Subscription Agreement.
5.9 The Company agrees not to disclose the names, addresses or
any other information about the Subscribers, except as required by law,
provided, that the Company may use information relating to the Subscriber in any
registration statement under the Act with respect to the Warrant Shares.
VI. BLUE SKY LEGENDS
California
The sale of securities which are the subject of this agreement
has not been qualified with the Commissioner of Corporations of the State of
California and the issuance of such securities or the payment or receipt of any
part of the consideration for such securities prior to such qualification is
unlawful, unless the sale of securities is exempt from qualification by Section
25100, 25102 or 25105 of the California Corporations Code. The rights of all
parties to this agreement are expressly conditioned upon such qualification
being obtained, unless the sale is so exempt.
Connecticut
The undersigned acknowledges that the Securities have not been
registered under the Connecticut Uniform Securities Act, as amended (the "Act")
and are subject to restrictions on transferability and sale of securities as set
forth herein. The undersigned hereby agrees that such Securities will not be
transferred or sold without registration under the Act or exemption therefrom.
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Maine
These securities are being sold pursuant to an exemption from
registration with the bank superintendent of the State of Maine under Section
10502(2)(r) of Title 32 of the Maine revised statutes. These securities may be
deemed restricted securities and as such the holder may not be able to resell
the securities unless pursuant to registration under state or federal securities
laws or unless an exemption under such laws exists.
Missouri
The undersigned acknowledges that the Securities have not been
registered under the Missouri Uniform Securities Act, as amended (the "Act") and
are subject to restrictions on transferability and sale of securities as set
forth herein. The undersigned hereby acknowledges that such Securities may be
disposed of only through a licensed broker-dealer. It is a felony to sell
securities in violation of the Missouri Securities Act.
Pennsylvania
The undersigned hereby acknowledges that the Issuer is relying
upon the exemption from registration of securities set forth in Section 203(d)
of the Pennsylvania Securities Act of 1972, as amended (the "Pennsylvania Act")
in connection with the sale of the Securities to the undersigned.
In accordance with the requirements of Section 203(d) of the
Pennsylvania Act, the undersigned hereby agrees not to sell his Securities
within twelve (12) months from the date of purchase except pursuant to Section
204.01 of the Blue Sky Regulations of the Pennsylvania Securities Act of 1972.
Additionally, the undersigned is aware of the right of withdrawal under Section
207(m) of the Act described in the cover pages of the Term Sheet.
Texas
The undersigned hereby acknowledges that the Securities cannot
be sold unless they are subsequently registered under the Securities Act of
1933, as amended, and the Texas Securities Act, or an exemption from
registration is available. The undersigned further acknowledges that because the
Securities are not readily transferable, he must bear the economic risk of his
investment for an indefinite period of time.
Page 82 of 128 Pages
IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement as of the day and year first written above.
------------------------------ ------------------------------------
Signature of Subscriber Signature of Co-Subscriber
------------------------------ ------------------------------------
Name of Subscriber Name of Co-Subscriber
[please print]
------------------------------ ------------------------------------
Address of Subscriber Address of Co-Subscriber
------------------------------ ------------------------------------
Social Security or Taxpayer Social Security or Taxpayer
Identification Number of Subscriber Identification Number of
Co-Subscriber
------------------------------
Subscriber's Account Number
at Commonwealth Associates
------------------------------
Number of Units Subscribed For
*If Subscriber is a Registered Representative
with an NASD member firm, have the following
acknowledgement signed by the appropriate party:
The undersigned NASD member firm
acknowledges receipt of the notice
required by Rule 3050 of the NASD Subscription Accepted:
Conduct Rules.
PICK COMMUNICATIONS CORP.
------------------------------
Name of NASD Member Firm By:
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By
---------------------------
Authorized Officer
