Exhibit 4.55
SUBSCRIPTION AGREEMENT
NEWAVE, INC.
NeWave, Inc. December 19, 2005
Xxxxxxx Xxxx, President
00 XxXxxxxx, Xxxxx 0
Xxxxxx, XX 00000
Dear Xx. Xxxx:
The undersigned (the "Subscriber") understands that NeWave, Inc., a Utah
corporation (the "Company") is offering for sale to the undersigned up to one
million shares of the Company's Common Stock or ("Shares").
NOWTHEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Subscriber
hereby agree as follows:
DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
a. "Closing Date" means the day this Agreement is executed by both parties.
b. "Purchase Price" means the price per Share paid by the Subscriber
pursuant to this Agreement.
c. "Pricing Period" means the five trading days immediately preceding the
Closing Date.
d. "Re-pricing Period" means the five trading days immediately preceding
November 29, 2006.
The Purchase Price shall be equal to fifty-percent (50%) of the average closing
price of the Shares during the Pricing Period. If the average closing price of
the Shares during the Re-pricing Period is lower than the average closing price
of the Shares during the Pricing Period, the Purchase Price shall be reduced to
fifty-percent (50%) of the average closing price of the Shares during the
Re-pricing Period, in which case the Company shall issue additional Shares to
the Subscriber at no additional cost and in an amount which would reconcile with
the reduction in the Purchase Price. The Company has no obligation to register,
qualify, or otherwise assist an investor in registering or qualifying the
securities described herein for sale, or to obtain or establish an exemption
from applicable registration or qualification requirements.
1. SUBSCRIPTION. Subject to the terms and conditions hereof, the Subscriber
hereby subscribes for and agrees to purchase 136,363 Shares of Common Stock
for the aggregate purchase price of $ 15,000 upon acceptance of this
Subscription Agreement.
PAYMENT FOR THE COMMON STOCK. The undersigned agrees to complete the purchase of
the stock specified in section one above by tendering a payment by check payable
to "NeWave, Inc." or via wire transfer. If by check, remit to; "NeWave, Inc.",
ATT/Xxxxxxx Xxxxxxxx, Chairman, 0000 Xx. 00, Xxxxx 000, XxXxxxxxxxxxx, XX 00000,
ph (845) 575-6770, fx (000) 000-0000. If via wire transfer, remit to: NeWave,
Inc., Bank of America, ABA# 000000000, Account# 04164-03365. By verification by
NeWave, Inc. of completing the purchase by the evidence of cleared funds the
stock subscribed for herein will be deemed fully paid for. If this subscription
is not accepted by the Company for any reason, all documents and funds will be
returned to the Subscriber.
2. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER. The Subscriber hereby
represents and warrants to and covenants with the Company, as well as each
officer, director and agent of the Company as follows:
(a) General
(i) The Subscriber has all requisite authority to enter into this
Subscription Agreement and to perform all the obligations required to
be performed by the Subscriber hereunder.
(ii) The Subscriber is the sole party in interest and is not acquiring
the Common Stock as an agent or otherwise for any other person. The
Subscriber is a resident of the state set forth opposite its name on
the signature page hereto and (a) if a corporation, partnership, trust
or other form of business organization, it has its principal office
within such state; (b) if an individual, he or she has his or her
principal residence in such state; and (c) if a corporation,
partnership, trust or other form of business organization which was
organized for the specific purpose of acquiring the Common Stock, all
of the beneficial owners are residents of such state.
(iii) The Subscriber recognizes that the total amount of funds
tendered to purchase the Common Stock is placed at the risk of the
business and may be completely lost. The purchase of the Common Stock
of the Company as an investment involves extreme risk.
(iv) The Subscriber realizes that the Common Stock cannot readily be
sold for a period of one year, as the shares of Common Stock are
restricted securities, that it may not be possible to sell or dispose
of the Common Stock and therefore the Common Stock must not be
purchased unless the Subscriber has liquid assets sufficient to assure
that such purchase will cause no undue financial difficulties and the
Subscriber can provide for current needs and personal contingencies.
(v) The Subscriber confirms and represents that he is able (a) to
bear the economic risk of his/her investment, (b) to hold the
securities for an indefinite period of time, and (c) to afford a
complete loss of his/her investment. The Subscriber also represents
that he has (x) adequate means of providing for his/her current needs
and personal contingencies, and (y) has no need for liquidity in this
particular investment.
(vi) The Subscriber has not become aware of the offering of Common
Stock of the Company by any form of general solicitation or
advertising, including, but not limited to advertisements, articles,
notices or other communications published in any newspaper, magazine
or other similar media or broadcast over television or radio or any
seminar or meeting where those individuals that have attended have
been invited by any such or similar means of general solicitation or
advertising.
(b) Information Concerning the Company
(i) The Subscriber has received or had access to all current
information about the Company including the Company's (A) Form
10-QSB/A for the quarter ended September 30, 2005, (B) Form 10-KSB for
the period ending December 31, 2004 and any report filed pursuant to
the 1934 Act since that time, if any (C) The Company's Proxy Statement
and (D) any other filings with the SEC that may be pertinent to the
evaluation of this investment in Common Stock.
(ii) The Subscriber is familiar with the business and financial
condition, properties, operations and prospects of the Company, and,
at a reasonable time prior to the execution of the Subscription
Agreement, has been afforded the opportunity to ask questions of and
received satisfactory answers from the Company's officers and
directors, or other persons acting on the Company's behalf, concerning
the business and financial condition, properties, operations and
prospects of the Company and concerning the terms and conditions of
the offering of the Common Stock and has asked such questions as it
desires to ask and all such questions have been answered to the full
satisfaction of the Subscriber.
(i) The Subscriber understands that, unless the Subscriber notifies
the Company in writing to the contrary before the Closing, all the
representations and warranties contained in the Subscription Agreement
will be deemed to have been reaffirmed and confirmed as of the
Closing, taking into account all information received by the
Subscriber.
(ii) The Subscriber understands that the purchase of the Common Stock
involves various risks, including, but not limited to, those outlined
in this Subscription Agreement and the Private Placement Memorandum.
(iii) The Subscriber acknowledges that no representations or
warranties have been made to the Subscriber by the Company as to the
tax consequences of this investment, or as to profits, losses or cash
flow which may be received or sustained as a result of this
investment.
(iv) All documents, records and books pertaining to a proposed
investment in the Common Stock which the Subscriber has requested have
been made available to the Subscriber.
(v) The Subscriber has been provided access to all information
requested in evaluating his/her purchase of the Common Stock.
(c) Status of the Subscriber
(i) The Subscriber represents that he is an Accredited Investor as
that term is defined in the Act (check each category of "Accredited
Investor" below which is applicable to the Subscriber):
( ) (A) a natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of his purchase exceeds $1,000,000;
( x ) (B) a natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with that person's spouse
in excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year.
( ) (C) a bank as defined in Section 3(a)(2) of the Act or a savings and loan
association or other institution as defined in Section 3(a)(5) (A) of the Act,
whether acting in its individual or fiduciary capacity; broker or dealer
registered pursuant to Section 15 of the Securities Exchange Act of 1934; an
insurance partnership as defined in Section 2(13) of the Act; an investment
company registered under the Investment company Act of 1940 (the "1940 Act") or
business development company as defined in Section 2(a) (48) of the 1940 Act; a
Small business Investment Company licensed by the U.S. Small Business
Administration under Section 301 or (d) of the Small Investment Act of 1958; a
plan established and maintained by a state, its political subdivisions, or any
agency or instrumentality of a state or its political subdivisions, for the
benefit of its employees if such plan has total assets in excess of $5,000,000;
or an employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974 ("ERISA"), if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of ERISA, which fiduciary is either a
bank, savings and loan association, insurance company or registered investment
advisor, or if the employee benefit plan has total assets in excess of
$5,000,000 or, if a self-directed plan, with investment decisions made solely by
persons that are Accredited Investors (as listed in categories (A) - (G));
( ) (D) a private business development company as defined in Section 202(a)
(22) of the Investment Advisors Act of 1970;
( ) (E) an organization described in Section 501 (c)(3) of the Internal
Revenue Code, a corporation, Massachusetts or similar business trust, or a
partnership, with total assets in excess of $5,000,000, and which was not formed
for the specific purpose of acquiring the Common Stock;
( ) (F) a trust, with total assets in excess of $5,000,000 not formed for
the specific purposes of acquiring the Common Stock whose purchase is directed
by a person who has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks of an investment
in the Common Stock; and
( ) (G) an entity in which all of the equity owners are Accredited
Investors (as listed in categories (A) - (F) or is an Accredited Investor
defined by Regulation D.
(ii) The Subscriber agrees to furnish any additional information
requested to assure compliance with applicable Federal and State
Securities Laws in connection with the purchase and sale of the Common
Stock.
(d) Restrictions on Transfer or Sale of the Common Stock
(i) The Subscriber is acquiring the Common Stock subscribed solely
for the Subscriber's own beneficial account, for investment purposes,
and not with view to, or for resale in connection with, any
distribution of the Common Stock. The Subscriber understands that the
offer and the sale of the Common Stock has not been registered under
the Act or any State Securities Laws by reason of specific exemptions
under the provisions thereof which depend in part upon the investment
intent of the Subscriber and of the other representations made by the
Subscriber in this Subscription Agreement. The Subscriber understands
that the Company is relying upon the representations, covenants and
agreements contained in the Subscription Agreement (and any
supplemental information) for the purposes of determining whether this
transaction meets the requirements for such exemptions.
(ii) The Subscriber understands that the Common Stock are "restricted
securities" under applicable federal securities laws and that the Act
and the rules of the Securities and Exchange Commission (the
"Commission") provide in substance that the Subscriber may dispose of
the Common Stock only after one year and pursuant to Rule 144 or an
exemption therefrom. The certificates evidencing the shares of Common
stock offered hereby will bear a legend which clearly sets forth this
restriction. The Subscriber understands that the Subscriber may not at
any time demand the purchase by the Company of the Subscriber's Common
Stock.
(iii) The Subscriber agrees: (A) that the Subscriber will not sell,
assign, pledge, give, transfer or otherwise dispose of the Common
Stock or any interest therein, or make any offer or attempt to do any
of the foregoing except in a transaction which is exempt from the
registration provisions of the Act and all applicable State Securities
Laws; (B) that the company and any transfer agent for the Common Stock
except upon compliance with the foregoing restrictions; and (C) that a
restrictive legend will be placed on the certificates representing the
Common Stock.
(iv) The Subscriber has not offered or sold any portion of the
subscribed for Common Stock and has no present intention of dividing
such Common Stock with others or of reselling or otherwise disposing
of any portion of such Common Stock either currently or after the
passage of a fixed or determinable period of time or upon the
occurrence or nonoccurrence of any predetermined event or
circumstance.
3. SURVIVAL AND INDEMNIFICATION. All representations, warranties and covenants
contained in this Agreement and the indemnification contained in this
Paragraph 4 shall survive (i) the acceptance of the Subscription Agreement
by the Company and (ii) the death or disability of the Subscriber. The
Subscriber acknowledges the meaning and legal consequences of the
representations, warranties and covenants in Paragraph 3 hereof and that
the Company has relied upon such representations, warranties and covenants
in determining the Subscriber's qualification and suitability to purchase
the Common Stock. The Subscriber hereby agrees to indemnify, defend and
hold harmless the Company, and its officers, directors, employees, agents
and controlling persons, from and against any and all losses, claims,
damages, liabilities, expenses (including attorneys' fees and
disbursements), judgment or amounts paid in settlement of actions arising
out of or resulting from the untruth of any representation herein or the
breach of any warranty or covenant herein. Notwithstanding the foregoing,
however, no representation, warranty, covenant or acknowledgment made
herein by the Subscriber shall in any manner be deemed to constitute a
waiver of any rights granted to them under the Securities Act or State
Securities laws.
4. Notices. All notices and other communications provided for herein shall be
in writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail, return receipt
requested, postage prepaid, or overnight air courier guaranteeing next day
delivery:
(a) if to the Company, to it at the following address:
NeWave, Inc.
Attn: Xxxxxxx Xxxx, President & CEO
00 Xxxxx XxXxxxxx, Xxxxx 0
Xxxxxx, XX 00000
(b) if to the Subscriber, at the address set forth on the last page hereof
or directly to the Subscriber at the address set forth on the signature page
hereto, or at such other address as either party shall have specified by notice
in writing to the other.
All notice and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; two days after being deposited
in the mail, postage prepaid, if mailed; and the next day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next day delivery.
If a notice or communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.
5. ASSIGNMENT. This Subscription Agreement is not assignable by the
Subscriber, and may not be modified, waived or terminated except by an
instrument in writing signed by each of the parties hereto.
6. BINDING EFFECT. Except as otherwise provided herein, this Subscription
Agreement shall be binding upon and inure to the benefit of the parties and
their heirs, executors, administrators, successors, legal representatives
and assigns, and the agreements, representations, warranties and
acknowledgments contained herein shall be deemed to be made by and be
binding upon such heirs, executors, administrators, successors, legal
representatives and assigns. If the Subscriber is more than one person, the
obligation of the Subscriber shall be joint and several and the agreements,
representations, warranties and acknowledgments contained herein shall be
deemed to be made by and by binding upon each such person and his heirs,
executors, administrators and successors.
7. ENTIRE AGREEMENT. This Subscription Agreement constitutes the entire
agreement of the Subscriber and the Company relating to the matters
contained herein, superseding all prior contracts or agreements, whether
oral or written.
8. GOVERNING LAW. This Subscription Agreement constitutes the entire agreement
of the Subscriber and the Company relating to the matters contained herein,
superseding all prior contracts or agreements, whether oral or written.
9. SEVERABILITY. If an provision of this Subscription Agreement or the
application thereof to any Subscriber or circumstance shall be held invalid
or unenforceable to any extent, the remainder of this Subscription
Agreement and the application of such provision to other subscriptions or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
10. HEADINGS. The headings in this Subscription Agreement are inserted for
convenience and identification only and are not intended to describe,
interpret, define, or limit the scope, extent or intent of the Subscription
Agreement or an provision hereof.
IN WITNESS WHEREOF, the undersigned Subscriber has executed this Subscription
Agreement this ________22nd____day of December 2005.
(s) Xxxxxxx Xxxxx
________________________
________________________
________________________
ACCEPTED by the Company this the 22nd day of December 2005.
NeWave, Inc.
By: /s/ Xxxxxxx Xxxx
----------------
Xxxxxxx Xxxx, President
