Subscription Agreement
GlobeTel
Communications Corp.
000
XX
0xx
Xxx.
Xxxxx
0000
Xxxx
Xxxxxxxxxx, XX 00000
Gentlemen:
1. Subscription. GlobeTel
Communications Corp., a Delaware corporation (the “Company”), hereby agrees to
issue, and the undersigned subscriber (the “Purchaser”) hereby agrees to
purchase, 476,190
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 $50,000. However, Purchaser may make
additional investments, in its sole discretion and without any obligation
to do
so and on terms acceptable by it, as follows:
(i) $225,000
payable on or before October 15, 2008 (for 2,142,857 shares of the Company’s
Common Stock, together with one two year Class A Warrant and one two year
Class
B Warrant, each to purchase 1,071,429 shares of the Company’s Common Stock
exercisable at $.21 per share and $.315 per share, respectively);
and
(ii) $225,000
payable on or before December 15, 2008 (for 2,142,857 shares of the Company’s
Common Stock, together with one two year Class A Warrant and one two year
Class
B Warrant, each to purchase 1,071,429 shares of the Company’s Common Stock
exercisable at $.21 per share and $.315 per share, respectively).
(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 238,095 shares of the Company’s Common Stock at $.21 per
share and one Class B Warrant to purchase 238,095 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.
(d) Additional
Closings. For the additional investments set forth in section 1(a)(i) and
1(a)(ii) above, the closings therefore shall be in accordance with this section
(c), however, upon written agreement of the Parties, the investment dates
set
forth above may be extended by up to 30 days to allow for the completion
of the
technical studies as contemplated herein.
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”).
(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).
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(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.
(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.
3
(c)
Promptly
after the Closing Date, the Company will complete the preparation
of its audited financial statements for the year ended December 31, 2007
and
file
its
Form 10-K for the year ended December 31, 2007, and Forms 10-Q for the quarterly
periods through June 30, 2008
with the
Commission (such events being referred to herein as the “Pre-Registration
Conditions”).
(d)
On
or
before October 15, 2008, the Company shall provide to Purchaser a study
regarding the integration of Purchaser’s “Appliqué” on the Company’s airship
platform. Such study, and all of the rights thereto, shall be owned by
Purchaser.
(e)
If
and to
the extent that Purchaser makes any additional investment as referred to
in
Section 1(a) hereof, the Company shall use the proceeds therefrom solely
for
purposes of any additional study relating to the modification of the Company’s
Airships for purposes of enabling the Company to install and carry an Appliqué
thereon.
4. Registration
Covenant.
(a)
The
Company agrees that, as soon as possible after the Pre-Registration Conditions
have been satisfied, 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.
(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.
4
(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.
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.
5
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
either
in the Federal District Court for the Southern District of Florida or in
the
State Court for Broward County, Florida, in the event that any such litigation
is instituted by the Company or in the Federal District Court for the Southern
District of New York or the New York State Supreme Court, New York County,
New
York in the event of any litigation instituted by Purchaser hereunder, and
each
of the parties to this Subscription Agreement consent to the personal
jurisdiction of and venue of such courts. 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.
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.
17. 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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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 September 17, 2008.
|
GLOBAL
TELESAT CORP.
|
|
By:
/s/ Xxxxx Xxxxxx
|
|
Name:
Xxxxx Xxxxxx, President
|
|
Address:
00 Xxxx Xxxxx Xx.
|
|
Xxxxxxx,
XX 00000
|
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GLOBETEL
COMMUNICATIONS CORP.
|
|
By:
/s/ Xxxxxxxx Xxxxxxxx
|
|
Name:
Xxxxxxxx Xxxxxxxx, CEO
|
|
Address:
000 XX 0xx Xxxxxx, Xxxxx 0000
|
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Xx.
Xxxxxxxxxx, XX 00000
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7
EXHIBIT
A
FORM
OF CLASS A WARRANT
8
EXHIBIT
B
FORM
OF CLASS B WARRANT
9
