Subscription Agreement
000 XX
0xx
Xxx.
Xxxxx
0000
Xxxx
Xxxxxxxxxx, XX 00000
Gentlemen:
1. Subscription. Sanswire Corp., a
Delaware corporation (the “Company”), hereby agrees to
issue, and the undersigned subscriber (the “Purchaser”) hereby agrees to
purchase, 3,809,524
shares of common stock of the Company (the “Shares”), subject to the terms
and conditions set forth herein. The Shares are being issued by the Company in
consideration of the payment of the Purchase Price (defined below).
2. Purchase
Price. The purchase price for the shares is $400,000 (the
“Purchase
Price”). The Purchase Price shall be paid by Purchaser as
follows:
(a) $100,000
has been paid prior to the execution of this Subscription Agreement, the receipt
of which is hereby acknowledged by the Company; and
(b) $300,000
upon the execution of this Subscription Agreement.
3. Closing.
(a) The
date of execution of this Subscription Agreement by the parties hereto shall be
referred to herein as the “Closing Date”.
(b) The
Company shall deliver to the Purchaser a stock certificate for the 3,809,524
Shares upon execution of this Subscription Agreement.
4. Use of
Subscription Proceeds. The Company will use the proceeds
received by it pursuant to this Subscription Agreement as follows:
(a) $266,000
for the construction of the mid-altitude 34 metre unmanned airship (i.e., the
“STS-111”).with such funds paid
to Xx. Xxxxx – X. Xxxxxxx and TAO Technologies (collectively “TAO”) to be credited against
all amounts past due pursuant to the License and Intellectual Property
Acquisition Agreement between the Company and
TAO dated June 3, 2008, as amended (the “License Agreement”);
and
(b) The
remaining funds to be used for the expenses of Sanswire Corp. (Florida) as
directed by its management.
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5. Representations,
Warranties, Covenants and Agreements of the Purchaser. In order to induce
the Company to execute and deliver this Subscription Agreement and to issue and
sell the Shares to the Purchaser, the Purchaser represents and warrants to, and
covenants and agrees with, the Company as follows:
(a) The
Purchaser acknowledges that the offer, issuance and sale to it of the Shares is
intended by the Company to be exempt from the registration requirements of the
Securities Act of 1933, as amended (the “Act”), and as such
the Shares have not been registered with the Securities and Exchange Commission
(the “Commission”).
(b) The
Purchaser represents and warrants to the Company that the Purchaser has had the
opportunity to ask questions of, and to receive answers from the officers and
employees of the Company concerning the Company and its business, affairs and
operations, and the transactions contemplated by this Subscription Agreement.
The Purchaser acknowledges that the Company's officers and employees have
answered all inquiries made on behalf of the Purchaser in connection herewith to
the satisfaction of the person or persons making such inquiry.
(c) The
Purchaser represents and warrants to the Company that the Purchaser has such
knowledge and experience in financial and business matters that it is capable of
understanding the information provided to it by the Company and of evaluating
the merits and risks of its investment in the Shares.
(d) The
Purchaser represents and warrants to the Company that the Shares are not being
acquired by the Purchaser with a view to, or for resale in connection with, any
“distribution” within the meaning of the Act.
(e)
The Purchaser acknowledges that the Shares have not been registered under the
Act. The Purchaser acknowledges and agrees that, as such, the Shares cannot be
sold, assigned, transferred, conveyed, pledged or otherwise disposed of unless
they are registered under the Act or an exemption from such registration is
available. The Purchaser acknowledges that an opinion of legal counsel to the
Company is required in connection with any sale, assignment, transfer,
conveyance, pledge or other disposition of the Shares and that no such
opinion will be given by such legal counsel unless and until such counsel
receives satisfactory evidence that the sale, assignment, transfer, conveyance,
pledge or other disposition of the Shares complies with applicable law (the
effective Registration Statement referred to in Section 4 hereof shall be
satisfactory evidence for such purposes).
(f) The
Purchaser acknowledges that any and all certificates representing the Shares
will bear the following legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE ACT”), OR ANY STATE SECURITIES ACT.
RATHER, THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO
AN EXEMPTION FROM THE REGISTRATION PROVISIONS OF THE ACT. THE SHARES REPRESENTED
BY THIS CERTIFICATE MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, CONVEYED, PLEDGED OR
OTHERWISE DISPOSED OF UNLESS THEY ARE REGISTERED UNDER THE ACT OR AN EXEMPTION
THEREFROM IS AVAILABLE IN THE OPINION OF COUNSEL TO THE ISSUER.
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(g) The
Purchaser represents and warrants to the Company that (i) it has full power and
authority to execute and deliver this Subscription Agreement, (ii) this
Subscription Agreement has been duly and validly executed and delivered by the
Purchaser and constitutes the legal, valid and binding obligation of the
Purchaser and (iii) this Subscription Agreement is enforceable against the
Purchaser in accordance with its terms.
(h) The
Purchaser acknowledges that the Company has offered and may offer to sell its
securities to other purchasers on terms different herefrom, and that the
Purchaser has specifically negotiated the terms of this transaction with the
Company.
6. Representations,
Warranties, Covenants and Agreements of the
Company. In order to induce the Purchaser to execute and
deliver this Subscription Agreement and to issue and purchase the Shares from
the Company, the Company represents and warrants to, and covenants and agrees
with, the Purchaser as follows:
(a) (i)
It has full power and authority to execute and deliver this Subscription
Agreement, (ii) this Subscription Agreement has been duly and validly executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company and (iii) this Subscription Agreement is enforceable
against the Company in accordance with its terms.
(b) The
Shares, when issued, will be fully paid, validly issued and non-assessable and
the Shares will be delivered to Purchaser hereunder free and clear of all liens,
claims and encumbrances whatsoever.
(c) The
authorization, execution, delivery and performance of this Subscription
Agreement, and the consummation of the transactions contemplated hereby, will
not result in any violation or be in conflict with or constitute, with or
without the passage of time and giving of notice, a breach or default under any
provision of any instrument, judgment, order, writ, decree or agreement to which
the Company or any subsidiary or affiliated entity is a party or by which it or
them is bound.
(d)There is no action, suit,
proceeding, or investigation pending, or to the knowledge of the Company
currently threatened against the Company in any way relating to the validity of
this Agreement or the right of the Company to enter into or to perform this
Agreement or consummate the transactions contemplated hereby.
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(e) TAO
has not declared an event of default under the June 3, 2008 agreement and any
non-payment or late-payment of funds pursuant thereto has a one-year cure
period.
(f) The
Company has not received any notice, claim or demand from the Securities and
Exchange Commission (the “Commission”), or any other
regulatory authority, seeking or requiring a temporary or permanent suspension
of trading in the publicly owned shares of common stock of the
Company.
7. Current
Filings. The Company agrees that until the later of the date
on which all of the Shares to be issued hereunder have been sold or one year
from the date of the last issuance of such Shares, it will keep current in
filing all reports and materials required to be filed with the Commission in
order to permit the Services Provider to sell the Shares under Rule
144.
8. Survival. The
Purchaser and the Company acknowledge and agree that all of their
representations, warranties, covenants and agreements contained herein shall
survive the Closing Date.
9. Governing
Law. This Subscription
Agreement shall be governed by, and shall be construed and interpreted in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of law thereof.
10. Notices. Any
and all notices and other communications given pursuant to this Subscription
Agreement shall be in writing and shall be deemed to have been duly given when
delivered by hand, receipt acknowledged, or when delivered by registered or
certified mail, postage prepaid, return receipt requested, to the Company and to
the Purchaser at their respective addresses set forth beneath their signatures
below. A copy of any notice to Purchaser hereunder shall be sent
simultaneously Xxxxxx X. Xxxxxxx, Esq.,
00 Xxxx Xxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000.
11. Entire
Agreement. This Subscription
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements, understandings,
negotiations and arrangements, both oral and written, between the parties with
respect to such subject matter. This Subscription Agreement may not be amended
or modified in any manner, except by a written instrument executed by each of
the parties hereto.
12. Benefits:
Binding Effect. This Subscription Agreement shall be for
the benefit of, and shall be binding upon, the parties hereto and their
respective successors and permitted assigns. Neither this Subscription Agreement
nor any of the rights or obligations of the parties hereto shall be
assigned in the absence of the written consent of the non-assigning
party.
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13. Jurisdiction
and Venue. Any claim arising out
of, connected with, or in any way related to this Subscription Agreement which
results in litigation shall be instituted and adjudicated (a) in the Federal
District Court for the Southern District of Florida or in the State Court for
Broward County, Florida with respect to a claim
asserted by the Company or (b) in the Federal District Court for the Southern
District of New York or in the New York State Supreme Court, New York County,
with respect to any claim asserted by Purchaser. In no event
shall either party to this Subscription Agreement contest the personal
jurisdiction of such courts over or the venue of such courts with respect to any
such litigation. In
the event of any such litigation, the party prevailing therein shall be
reimbursed by the non-prevailing party for all costs and expenses (including
legal fees) incurred by the prevailing party in connection
therewith.
14. Expenses. Each
of the Company and Purchaser shall bear their respective costs and expenses in
connection with the negotiation and consummation of this Subscription
Agreement.
15. Gender. In this Subscription
Agreement, any reference to the masculine gender shall mean and include the
feminine gender.
16. Headings. The
headings contained in this Subscription Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of any or all
of the provisions hereof.
17. Counterparts.
This Subscription Agreement may be executed in any number of counterparts and by
each of the parties hereto in separate counterparts, each of which shall be
deemed to constitute an original and all of which shall be deemed to constitute
the one and the same instrument. This Subscription Agreement may be executed by
facsimile transmission, which transmission will be deemed to be an original and
considered fully legal and binding on all of the signatories
hereto.
18. Absence
of Official Evaluation.
Purchaser understands that no federal or state agency has made any
finding or determination as to the fairness of the terms of an investment in the
Company, nor any recommendation for or endorsement of the Shares offered
hereby.
19. Additional
Financing. Purchaser further acknowledges that nothing hereunder
shall preclude the Company from seeking and/or procuring additional equity
and/or debt financing.
20. Nonreliance. Purchaser is not
relying on the Company or any representation contained herein or in the
documents referred to herein with respect to the tax and economic effect of
Purchaser's investment in the Company.
21. No
General Solicitation. Purchaser is not subscribing for the Shares because
of or following any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio, or presented at any seminar or meeting, or any solicitation
or a subscription by a person other than an authorized representative of the
Company.
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22. Regulation
D Offering. The offer and issuance of the Shares to the
Purchaser is being made pursuant to the exemption from the registration
provisions of the 1933 Act afforded by Section 4(2) or Section 4(6) of the 1933
Act and/or Rule 506 of Regulation D promulgated thereunder. The Company will
provide, at the Company's expense, such legal opinions in the future as are
reasonably necessary for the issuance and/or resale of the Shares.
IN WITNESS WHEREOF, the Purchaser and
the Company have executed and delivered this Subscription Agreement as of April
___, 2009.
|
GLOBAL
TELESAT CORP.
|
||
| By:_________________________________ | ||
| Xxxxx Xxxxxx, President and | ||
| Chief Executive Officer | ||
| Address: | 00 Xxxx Xxxxx Xxxx | |
| Xxxxxxx, Xxx Xxxx 00000 | ||
|
By:_______________________________
|
||
| Xxxxxxxx Xxxxxxxx, | ||
| Chief Executive Officer | ||
| Address: | 000 XX 0XX XXX. | |
| XXXXX 0000 | ||
| XXXX XXXXXXXXXX, XX 00000 | ||
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