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, 1,223,895 shares of
common stock of the Company (the “Shares”), and the Warrants (defined
below), subject to the terms and conditions set forth herein. The Shares and the
Warrants are being issued by the Company in consideration of the payment of the
Purchase Price (defined below), the receipt and sufficiency of which
is hereby acknowledged.
(a) Total
Purchase Price. The total purchase price of the Shares
is €100,000. The total purchase price shall be paid to TAO
Technologies GmbH with TAO Technologies crediting such payment to Sanswire Corp.
for payments due under the agreement between TAO and GlobeTel/Sanswire Corp. on
or about June 3, 2008.
(b) Warrants. On
the Closing Date (defined below), the Purchaser shall receive the following two
year common stock purchase warrants (collectively, the “Warrants”): one Class A
Warrant to purchase 611,948 shares of the Company’s Common Stock at $.21 per
share and one Class B Warrant to purchase 611,948 shares of the Company’s
Common Stock at $.315 per share, each in the form as annexed hereto as Exhibits
A and B, respectively.
(c) Closing.
(i) Upon
the execution hereof by the parties hereto, the Purchaser shall pay the Purchase
Price to the Company. The date of execution of this
Subscription Agreement by the parties hereto shall be referred to herein as the
“Closing Date”.
(ii) Upon
receipt of the Purchase Price, the Company shall deliver to the Purchaser a
stock certificate for the Shares and the Warrants, each duly executed
by the Company.
2. 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”).
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(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 or
the Warrants 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.
3. 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 and the
Warrants from the Company, the Company represents and warrants to, and covenants
and agrees with, the Purchaser as follows:
(a) The
Company represents and warrants to the Purchaser 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
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 and Warrants will be delivered to Purchaser hereunder free and clear
of all liens, claims and encumbrances whatsoever. All of the
outstanding Common Stock Purchase Warrants of the Company have terms not
exceeding two years.
4. Registration
Covenant.
(a) The
Company agrees that, as soon as possible after the filing of its financial
statements, it will file a registration statement (the “Registration Statement”)
with the Commission covering the Shares and the shares underlying the Warrants
(collectively, the “Registered Securities”). The Purchaser shall
provide the Company with such information concerning the Purchaser as the
Company may reasonably request in connection with the Registration Statement,
including any specific information requested by the Commission.
(b) The
Company shall bear the entire cost and expense of the preparation and filing of
the Registration Statement pursuant to this Section 4, and all costs and
expenses incurred in connection with maintaining the effectiveness of such
Registration Statement. Purchaser shall, however, bear the fees of
its counsel and any transfer taxes or underwriting discounts or commissions
applicable to the sale of the Registered Securities pursuant
thereto.
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(c) The Company
will use its best efforts to cause the Registration Statement to become
effective as promptly as possible and, if any stop order shall be issued by the
Commission in connection therewith, to use its best efforts to obtain the
removal of such order.
(d) While any
Registration Statement covering the Registered Securities is effective, the
Company will take all necessary action which may be required in qualifying or
registering the Registered Securities for offering and sale under the Blue Sky
laws of such number of states as are reasonably requested by the Purchaser,
provided that
the Company shall not be obligated to qualify as a foreign corporation to
do business under the laws of any such jurisdiction.
(e) The Company
shall be required to maintain the effectiveness of the Registration Statement
until the earlier of (i) the public sale of all of the Registered Securities
registered thereunder, or (ii) the expiration of two years from the date such
Registration Statement has been declared effective by the
Commission. Following the effective date of the Registration
Statement, the Company shall, upon Purchaser’s request, supply Purchaser with
such number of prospectuses meeting the requirements of the Act as shall be
reasonably requested by Purchaser to permit Purchaser to make a public
distribution of the Registered Securities.
(f) The Company agrees
that until all Registered Securities have been sold pursuant to the Registration
Statement or pursuant to Rule 144 under the Act, it will keep current in filing
all reports and materials required to be filed with the Commission in order to
permit the Purchaser to sell the Registered Securities under Rule
144.
(g) The
Company shall indemnify and hold Purchaser harmless from and against all losses,
claims, damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
prospectus included therein or any application or other filing under any State
securities law (or by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading).
5. 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.
6. Governing
Law. This
Subscription Agreement shall be governed by, and shall be construed and
interpreted in accordance with the laws of the State of Florida, without giving
effect to the principles of conflicts of law thereof.
7. 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.
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8. Entire
Agreement. This Subscription
Agreement, together with the exhibits attached hereto, 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.
9. 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.
10. 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 in the Federal
District Court for the Southern District of Florida or in the State Court for
Broward County, Florida. 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.
11. Gender. In this Subscription
Agreement, any reference to the masculine gender shall mean and include the
feminine gender.
12. 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.
13. 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.
14. 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.
15. Additional
Financing. Purchaser further acknowledges that nothing hereunder
shall preclude the Company from seeking and/or procuring additional equity
and/or debt financing.
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16. 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.
00.Xx
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.
18.Regulation
D Offering. The offer and issuance of the Shares and Warrants
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 resale of the Shares and the shares
issued upon exercise of the Warrants.
IN WITNESS WHEREOF, the Purchaser and
the Company have executed and delivered this Subscription Agreement as of
October ___, 2008.
INTERNATIONAL
LEGAL CONSULTANTS
By:_________________________________
Name:
Xxxxxxx Xxxxxx, Owner
Address:
Pearl Building 10-02, P.O. Box 40992, Deira, Dubia, U.A.E.
By:_______________________________
Name:
Xxxxxxxx Xxxxxxxx, CEO
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