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EXHIBIT 10.22
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of October ___, 1999 (the
"Agreement"), between Aether Systems, Inc., a Delaware corporation (the
"Company"), and National Discount Brokers, a _________ corporation (the
"Investor").
WHEREAS, the Company intends to effect an initial public offering (the
"IPO") of its common stock, $.01 par value per share (the "Common Stock"),
pursuant to Registration Statement No. 333-85697 (the "Registration Statement")
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the"Act");
WHEREAS, on the date set forth above, the Company is executing a
Purchase Agreement with respect to the IPO, a copy of which is attached hereto
as Exhibit A (the "Purchase Agreement"), with Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, BancBoston Xxxxxxxxx Xxxxxxxx Inc.,
Xxxxxxxxx Xxxxxx & Xxxxxxxx Securities Corporation and U.S. Bancorp Xxxxx
Xxxxxxx Inc., as representatives of the Underwriters named therein (the
"Underwriters");
WHEREAS, the Investor has previously indicated to the Company its
interest in acquiring directly from the Company certain of the shares of Common
Stock that have been registered pursuant to the Registration Statement, and the
Company has agreed to issue and sell such shares to the Investor, on the terms
and subject to the conditions set forth herein;
NOW, THEREFORE, for and in consideration of the premises, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE
Section 1.1 Subscription for Securities. The Investor hereby subscribes
for the purchase of 20,000 shares of Common Stock (the "Shares") at a purchase
price of $[____] per Share (which amount the Company represents is the Price to
the Public set forth on the cover page of the Company's Prospectus (as defined
in the Purchase Agreement)), for an aggregate purchase price of
[_________________ dollars ($_________)] (the "Purchase Price").
Section 1.2 Purchase and Sale of Shares. Subject to the terms and
conditions of this Agreement, at the Closing (as hereinafter defined), the
Investor agrees to purchase from the Company, and the Company agrees to issue
and sell to the Investor, the Shares.
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ARTICLE 2
CLOSING
Section 2.1 Closing Place and Date. The closing of the purchase and
sale of the Shares (the "Closing") shall take place at the offices of Xxxxxx,
Xxxxxx & Xxxxxxxxx, counsel for the Company, 0000 X Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000 (or such other place as the Company and the Investor agree) on the
"Closing Time," as such term is defined in the Purchase Agreement (the "Closing
Date").
Section 2.2 Deliveries at Closing. At the Closing, the Company shall
issue and deliver to the Investor a certificate or certificates representing the
Shares, against payment of the Purchase Price therefor by bank cashier's check
or wire transfer of immediately available funds.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
To induce the Investor to purchase the Shares, the Company hereby
represents and warrants to and covenants with the Investor as follows:
Section 3.1 Incorporation by Reference. The representations and
warranties of the Company set forth in Section 1 of the Purchase Agreement are
hereby incorporated by reference as if set forth in full herein and made to and
for the benefit of the Investor.
Section 3.2 Issuance of the Shares. The Shares have been duly
authorized and, when issued and delivered to the Investor against payment
therefor as provided by this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights.
Section 3.3 No Violation. The execution, delivery and performance of
this Agreement by the Company, the compliance by the Company with all the
provisions hereof and the consummation of the transactions contemplated hereby
will not (i) require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as may
be required under the Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the regulations promulgated thereunder or the securities or
Blue Sky laws of the various states), (ii) violate any of the terms or
provisions of the charter, articles of organization, by-laws or operating
agreement, as the case may be, of the Company or its subsidiaries or conflict
with or constitute a breach of, or a default under, any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which the Company
or its subsidiary is a party or by which the Company or its subsidiary or their
respective property is bound, which conflict, breach or default is reasonably
likely to have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole, or (iii) violate or conflict with any applicable law or
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any rule, regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company, its subsidiaries or their
respective property.
Section 3.4 Authorization. This Agreement has been duly authorized,
executed and delivered by the Company.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR
To induce the Company to accept the Investor's subscription and to
issue and sell the Shares, the Investor hereby represents and warrants to and
covenants with the Company as follows:
Section 4.1 Authorization. This Agreement has been duly authorized,
executed and delivered by the Investor.
Section 4.2 Purchase for Investor's Own Account. The Shares are being
acquired for investment for the Investor's own account, not as a nominee or
agent, and not with a current view to the resale or distribution of any part
thereof; and the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Investor does not have
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to the person or to any third person, with
respect to any of the Shares.
Section 4.3 Disclosure of Information. The Investor believes it has
received all the information it considers necessary or appropriate for deciding
whether to purchase the Shares, including but not limited to the delivery by the
Company of the Company's Preliminary Prospectus dated October 4, 1999.
ARTICLE 5
CONDITIONS TO CLOSING
Section 5.1 Conditions to the Investor's Obligations. The obligations
of the Investor hereunder to purchase the Shares from the Company shall be
subject to (i) receipt by the Investor of evidence that the conditions set forth
in Section 5 of the Purchase Agreement have been satisfied (or waived by the
representatives of the Underwriters) and (ii) delivery of the Company's final
Prospectus dated October ___, 1999.
Section 5.2 Conditions to the Company's Obligations. The obligations of
the Company hereunder and the Closing of the sale of the Shares shall be subject
to the occurrence, concurrently with the Closing hereunder, of the closing of
the purchase by the Underwriters of the "Initial Securities" in accordance with
the Purchase Agreement.
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ARTICLE 6
MISCELLANEOUS
Section 6.1 Governing Law. This Agreement and its validity,
construction and performance shall be governed in all respects by the internal
laws of the State of Maryland (without reference to the conflict of laws
provisions or principles thereof).
Section 6.2 Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
representatives, administrators, successors and assigns. Neither party may
assign this Agreement or any of its rights or obligations hereunder without the
written consent of the other party, which consent shall not be unreasonably
withheld.
Section 6.3 Entire Agreement; Amendment; Waiver. This Agreement
supersedes any and all prior agreements, understandings, discussions,
assurances, promises, representations or warranties among the parties with
respect to the subject matter hereof; and contains the entire agreement among
the parties with respect to the subject matter hereof. This Agreement shall not
be changed, modified or amended in any respect except by the mutual written
agreement of the parties hereto. Any provision of this Agreement may be waived
in writing by the party which is entitled to the benefits thereof. No waiver of
any provision of this Agreement shall be deemed to or shall constitute a waiver
of any other provision hereof (whether or not similar), nor shall any such
waiver constitute a continuing waiver.
Section 6.4 Severability. Any term or provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction only, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 6.5 No Third Party Beneficiaries. This Agreement and the
rights, benefits, privileges, interests, duties and obligations contained or
referred to herein shall be solely for the benefit of the parties hereto and no
third party shall have any rights or benefits hereunder as a third-party
beneficiary or otherwise hereunder.
Section 6.6 Survival of Warranties. The warranties and representations
of the parties contained in or made pursuant to this Agreement shall survive any
investigation made by the Investor and shall survive the execution and delivery
of this Agreement and the Closing.
Section 6.7 Headings. The captions, headings and titles herein are for
convenience of reference only and shall not effect the construction, meaning or
interpretation of this Agreement or any term or provision hereof.
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Section 6.8 Counterparts. This Agreement may be executed, including
facsimile signature, in one or more counterparts each of which shall be deemed
an original and all of which shall be considered one and the same agreement
notwithstanding that all parties are not signatories to the same counterpart. A
facsimile copy of an original signature to this Agreement shall have the same
force and effect, for all purposes, as the original signature.
Section 6.9 Expenses. Each party shall bear all of their expenses that
are incurred with respect to the negotiation, execution, delivery and
performance of this Agreement.
Section 6.10 Further Assurances. Each party hereto agrees to do all
acts and to make, execute and deliver such written instruments as shall from
time to time be reasonably required to carry out the terms and provisions of
this Agreement.
Section 6.11 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by facsimile or mailed
by registered or certified mail, postage prepaid, return receipt requested, or
otherwise delivered by hand or by messenger, addressed
(a) if to the Investor, at:
National Discount Brokers,
0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: ____________
Fax: ______________
(b) if to the Company, at:
Aether Systems, Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
with copies to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxxx
Fax: 000-000-0000
or at such other address as the Company shall have furnished to the Investor. If
notice is provided via facsimile, it must be simultaneously confirmed via
telephone and it shall be deemed to be given when the transmission is received.
If notice is provided by U.S. mail,
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notice shall be deemed to be given three (3) days after proper deposit in a U.S.
mailbox, postage prepaid.
In witness whereof, the Company and the Investor have each duly
executed this Agreement as of October ___, 1999.
Aether Systems, Inc.
By: ___________________
Name:
Title:
National Discount Brokers
By: ____________________
Name:
Title:
