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EXHIBIT 99.2
SUBSCRIPTION AND REGISTRATION RIGHTS AGREEMENT
Antennas America, Inc.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxx 00000
Gentlemen and Ladies:
The undersigned desires to invest in Antennas America, Inc. (the
"Company") on the terms and conditions described in this Subscription And
Registration Rights Agreement (the "Subscription Agreement") and the Company's
Confidential Private Placement Memorandum dated September 8, 1999 and the
exhibits to that memorandum (collectively the "Memorandum"). Pursuant to the
terms described in the Memorandum and this Subscription Agreement, the Company
is offering to subscribers a minimum of $315,000 and a maximum of $1,150,000 of
units (the "Units") at a price of $.0525 per Unit (the "Offering"). Each Unit
consists of one share (a "Placement Share") of the Company's $.005 par value
common stock (the "Common Stock") and one common stock purchase warrant (a
"Warrant") to purchase one share of Common Stock for $.175 per share. The
Warrants are exercisable immediately. They expire upon the earlier to occur of
(i) one year after the date on which a registration statement (the
"Registration Statement") concerning the transfer of the Placement Shares
included in the Units and the shares underlying the Warrants (the "Warrant
Shares") included in the Units is declared effective by the Securities And
Exchange Commission ("SEC"), and (ii) five years after the issuance of the
Warrants. The form of Stock Warrant Agreement with respect to Warrants is
attached to and made a part of the Memorandum as Exhibit D. The Units, including
the Placement Shares and the Warrants constituting the Units and the Warrant
Shares issuable upon exercise of the Warrants included in the Units, are
referred to collectively as the "Securities".
1. SUBSCRIPTION
Subject to and in accordance with the terms and conditions of this
Subscription Agreement, the undersigned hereby offers to purchase 201,175
Units. The undersigned hereby delivers to the Company the full purchase price
for the subscription for the Units in the form of a check or wire transfer to
"Antennas America, Inc." This completed Subscription Agreement and payment of
the full purchase price for the Units must be delivered to the Company on or
before October 1, 1999, unless the Offering is extended by the Company to a date
no later than November 30, 1999. It is understood by the undersigned that the
Company reserves the right in its sole discretion to reject all or any part of
any subscription. Promptly after the expiration of the Offering, the undersigned
will be notified by the Company whether the undersigned's subscription has been
accepted.
2. REPRESENTATIONS AND WARRANTIES OF THE UNDERSIGNED
The undersigned hereby represents and warrants to, and agrees with, the
Company as follows:
(a) (1) the undersigned can bear the economic risk of losing the
undersigned's entire investment;
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(2) the undersigned is or will be acquiring the Securities for
investment purposes only and the Securities the undersigned is or
will be acquiring will be held by the undersigned without sale,
transfer or other disposition for an indefinite period unless the
transfer of the Securities subsequently is registered under the
U.S. federal securities laws or unless exemptions from
registration are available;
(3) the undersigned's overall commitments to investments that are
not readily marketable is not disproportionate to the
undersigned's net worth and the undersigned's investment in the
Securities will not cause such overall commitments to become
excessive;
(4) the undersigned's financial condition is such that the
undersigned is under no present or contemplated future need to
dispose of any portion of the Securities to satisfy any existing
or contemplated undertaking, need or indebtedness;
(5) the undersigned has adequate means of providing for the
undersigned's current needs and personal contingencies and has
no need for liquidity in the undersigned's investment in the
Securities; and
(6) the undersigned has sufficient knowledge and experience in
business and financial matters to evaluate and has evaluated the
merits and risks of this investment.
(b) The address set forth below on the signature page of this Subscription
Agreement is the undersigned's true and correct residence, and the undersigned
has no present intention of becoming a resident of any other state or
jurisdiction.
(c) The undersigned is an "accredited investor" as that term is defined
in Rule 501 of Regulation D, as promulgated under the Securities Act of 1933,
as amended (the "1933 Act"), because the Buyer meets one of the following
criteria (if the undersigned is not an "accredited investor", place an "X" in
the following blank: ):
(1) An individual with a net worth, individually or jointly with the
undersigned's spouse, of $1,000,000; or
(2) An individual with income in excess of $200,000 in each of the two
most recent years, or joint income with the undersigned's spouse in excess
of $300,000 in each of those years, and the undersigned has a reasonable
expectation of reaching the same income level in the current year; or
(3) An individual who is an officer or director of the Company; or
(4) A corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of $5,000,000; or
(5) A trust with total assets in excess of $5,000,000 not formed for
the specific purpose of acquiring the securities offered, whose purchase
is directed by a sophisticated
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person as described in Rule 506(b)(2)(ii) of Regulation D, as
promulgated under the 1933 Act; or
(6) An entity in which all of the equity owners are accredited
investors.
(d) The undersigned confirms that all documents, records and books
pertaining to an investment in the Securities that have been requested by the
undersigned have been made available or delivered to the undersigned. Without
limiting the foregoing, the undersigned has received and reviewed the
Memorandum, including all exhibits to the Memorandum, and the undersigned has
had the opportunity to discuss the acquisition of the Securities with the
Company, and the undersigned has obtained or been given access to all
information concerning the Company that the undersigned has requested. As a
result of its review of the Company, including the review of the materials
provided to the undersigned, the undersigned understands, among other things,
the following: the Company has limited financial resources, has incurred
negative cash flow, and recently has not operated at a profit; and the Company
has not concurrently received, and may not in the future receive, additional
investment funds. The undersigned further represents that the undersigned is
aware of the operations, financial condition and capitalization of the Company,
is aware of the use of proceeds from this financing, and has available full
information concerning the Company's affairs to evaluate the merits and risks of
the investment in the Securities.
(e) The undersigned has had the opportunity to ask questions of, and
receive answers from, the Company concerning the terms of an investment in the
Securities and to receive additional information necessary to verify the
accuracy of the information delivered to the undersigned.
(f) The undersigned understands that the Securities have not been, and the
Warrant Shares issuable upon the exercise of the Warrants, will not be,
registered under the U.S. Securities Act of 1933, as amended (the "Act"), or any
state securities laws in reliance on an exemption for private offerings and no
U.S. federal or state agency has made any finding or determination as to the
fairness of this investment or any recommendation or endorsement of the
offering of the Securities.
(g) The Securities for which the undersigned hereby subscribes are being
or will be acquired solely for the undersigned's own account, for investment,
and is not being purchased with a view to or for the resale, distribution,
subdivision or fractionalization thereof; the undersigned has no agreement or
arrangement for any such resale, distribution, subdivision or fractionalization
thereof.
(h) The undersigned acknowledges that, in making the decision to purchase
the Securities, it has relied solely upon independent investigations made by it.
(i) The undersigned has the full right, power and authority to enter this
Subscription Agreement and to carry out and consummate the transactions herein.
The Subscription Agreement constitutes the legal, valid and binding obligation
of the undersigned.
(j) The undersigned represents that an investment in the Securities is
a suitable investment for the Undersigned.
(k) The undersigned is not an associate person or affiliate of any member
firm of the National Association of Securities Dealers, Inc.
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(l) The undersigned acknowledges and is aware that the following legend
will be imprinted on the Securities subscribed to by the undersigned:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER FEDERAL OR STATE SECURITIES LAWS. THESE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, OR OTHERWISE
DISPOSED OF UNLESS SO REGISTERED OR QUALIFIED OR UNLESS AN EXEMPTION
EXISTS, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED BY AN OPINION
OF COUNSEL (WHICH OPINION AND COUNSEL SHALL BOTH BE REASONABLY
SATISFACTORY TO THE COMPANY)."
(m) The undersigned acknowledges and is aware of the following, in
addition to other information included in the information provided to the
undersigned:
(1) The Shares are a speculative investment and involve a high degree
of risk of loss by the undersigned of the undersigned's total
investment.
(2) There are substantial restrictions on the transferability of the
Securities. The Shares can not be transferred, pledged,
hypothecated, sold or otherwise disposed of unless they are
registered under the Act, or an exemption from such registration
is available and established to the satisfaction of the Company;
except as provided in Section 3 below, investors in the Company
have no rights to require that any transfer of the Shares be
registered under the Act; there will be a limited public market
for the Company's Common Stock; and accordingly, the undersigned
may have to hold the Shares indefinitely; and it may not be
possible for the undersigned to liquidate the undersigned's
investment in the Company.
(n) The undersigned understands and agrees that the Company is relying
upon the accuracy, completeness, and truth of the undersigned's representations,
warranties, agreements, and certifications contained in this Subscription
Agreement, in determining the undersigned's suitability as an investor in the
Company and in establishing compliance with federal and state securities laws.
The undersigned understands that any incomplete, inaccurate, or untruthful
response, or the breach of the undersigned's representations, warranties,
agreements, or certifications, may result in the undersigned or the Company, or
both, being in violation of federal or state securities laws, and any person,
including the Company, who suffers damage as a result may have a claim against
the undersigned for damages. The undersigned also acknowledges that the
undersigned is indemnifying the Company and others for these and other losses in
accordance with Section 4 of this Subscription Agreement.
The foregoing representations and warranties are true and accurate as of
the date hereof and shall survive the delivery of the subscription amount and
the completed Subscription Packet.
3. REGISTRATION RIGHTS
(a) The Company will, no later than 60 days after the date on which the
Company accepts subscriptions in the Offering of at least $750,000, file with
the Securities And Exchange Commission a registration statement on Form SB-2 or
other appropriate Form under the Act, covering the sale by the Holders in the
open market of the Placement Shares of Common Stock included in the Units
acquired by the Holders in the Offering and the Warrant Shares of Common
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Stock issuable upon the exercise of the Warrants included in the Units acquired
by the Holders in the Offering (collectively, the "Registrable Securities").
The Company will undertake reasonable best efforts to cause the registration
statement to become effective with the SEC as soon as possible after its filing.
(b) As to any registration statement, the Company's obligations contained
in this Section 3 shall be conditioned upon timely receipt by the Company in
writing of information as to the terms of the contemplated transfer to be
registered furnished by and on behalf of the Holders, and such other information
as the Company reasonably may require from the Holders or any underwriter for
any Registrable Securities for inclusion in the registration statement. Such
information shall be provided to the Company in writing within 20 days after the
request for that information by the Company.
(c) In connection with any registration undertaken by the Company on
behalf of the Holders pursuant to this Section 3, the Company shall (i) furnish
to each Holder such numbers of copies of a summary prospectus or other
prospectus, including a preliminary prospectus or any amendment or supplement to
any prospectus, in conformity with the requirements of the Act, and such other
documents, as such Holder may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities owned by such
Holder, and (ii) notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto covered
by such registration statement is required to be delivered under the Act, of the
happening of any event of which it has knowledge as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(d) All registration expenses incurred by the Company in connection with
any registration, qualification or compliance pursuant to this Section 3,
including reasonable printing expenses, fees and disbursements of the Company's
counsel, and registration and filing fees relating to the sale of the
Registrable Securities to be registered on behalf of the Holders pursuant to any
registration statement required to be filed by the Company on behalf of the
Holders pursuant to this Section 3, and expenses, fees and disbursements in
connection with the registration or qualification of the sale of the Registrable
Securities in various states pursuant to Section 3(g) shall be borne by the
Company. All expenses incurred by the Holders in connection with any
registration, qualification or compliance pursuant to this Section 3 and all
selling expenses, including commissions, allocable to the sale of the shares of
the Registrable Securities registered on behalf of the Holders shall be borne by
the Holders.
(e) In the case of a registration, qualification or compliance effected by
the Company on behalf of the Holders pursuant to this Section 3, the Company
shall keep the Holders advised in writing as to the initiation of such
registration, qualification, and compliance and as to the completion thereof.
The Company will keep such registration, qualification or compliance effective
until the later to occur of (i) one year after the date on which the
registration statement becomes effective with the SEC, or (ii) until the
Holders have completed the distribution described in the registration statement
relating thereto, or (iii) the Registrable Securities become eligible for sale
without restriction under Rule 144(k) under the Act or another or successor
provision. The Company and the undersigned acknowledge and agree that the
Registrable Securities will not be eligible for sale under Rule 144(k) at times
that the undersigned is an affiliate of the Company.
(f) In the case of a registration, qualification or compliance effected by
the Company on behalf of the Holders pursuant to this Section 3, the Company
shall, at the expense of the
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Holders, take such action as may be reasonably necessary to register or qualify
the sale by the Holders of the Registrable Securities under the securities acts
or blue sky laws of such jurisdictions as the Holders may reasonably request and
to do any and all other acts and things which may be necessary or advisable to
enable the Holders to complete such proposed sale or other distribution by the
Holders of Registrable Securities in any such jurisdiction; provided however,
that in no event shall the Company be obligated to register or qualify under the
blue sky laws of any state in which the Common Stock of the Company currently is
not qualified for resale pursuant to a currently effective registration or an
exemption from registration, or be obligated to register or qualify the
securities in any jurisdiction which would require the Company to qualify to do
business.
(g) The Company will indemnify and hold harmless the Holders against any
loss, claim, damage or liability (or action in respect thereof) to which the
Holders may become subject, under the Act, or otherwise, insofar as any such
loss, claim, damage or liability (or action in respect thereof) is caused by any
untrue statement or alleged untrue statement of any material facts contained in
the registration statement, any prospectus contained in the registration
statement, or any amendment or supplement thereto, or arises out of or is based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements made therein not
misleading. Notwithstanding the foregoing provisions of this paragraph, the
Company will not be liable in any such case to the extent that any such loss,
claim, damage, expense or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by the Holders or any agent or other
representative of the Holders.
(h) The Holders will indemnify and hold harmless the Company and any
underwriter (as defined in the Act) for the Company and each person, if any, who
controls the Company or such underwriter against any loss, claim, damage or
liability (or action in respect thereof) to which the Company or such
underwriter or controlling person may become subject, under the Act or
otherwise, insofar as any such loss, claim, damage or liability, (or action in
respect thereof) is caused by any untrue statement or alleged untrue statement
or omission or alleged omission made in conformity with information furnished by
the Holders or any agent or other representative of the Holders or other
representative of the Holders for use in the registration statement.
4. INDEMNIFICATION
The undersigned acknowledges that the undersigned understands the meaning
and legal consequences of the representations, warranties, agreements, and
certifications contained above, and the undersigned hereby agrees to indemnify
and hold harmless each of the Company, its managers, officers, directors,
representatives and agents from and against any and all loss, damage, or
liability due to or arising out of a breach of any representation, warranty,
agreement, or certification, or the inaccuracy of any statement, of the
undersigned contained in this Subscription Agreement or any other document
submitted by the undersigned in connection with the undersigned's subscription
for the Securities. The foregoing notwithstanding, nothing in this Subscription
Agreement, including the representations, warranties, agreements and
certifications contained above, shall be deemed to constitute a waiver of any
rights that the undersigned may have under the Act and other federal and state
securities laws.
5. MISCELLANEOUS
(a) This Subscription Agreement may be executed in one or more
counterparts all of which taken together shall constitute a single instrument.
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(b) This Subscription Agreement shall be governed and construed as binding
upon the parties hereto, and their respective successors, and no other person
shall have any right or obligation hereunder. This subscription shall be
irrevocable, and may not be assigned by the undersigned. Subject to the
foregoing, this Subscription Agreement shall be binding upon and inure to the
benefit of the heirs, executors, administrators, legal representatives,
successors and assigns of the undersigned.
(c) This Subscription Agreement constitutes the entire agreement between
the undersigned and the Company with respect to the subject matter of this
Subscription Agreement and supersedes all prior and contemporaneous agreements
between the undersigned and the Company with respect to the subject matter
of this Subscription Agreement.
(d) This Subscription Agreement will be construed and enforced in
accordance with and governed by the laws of the State of Colorado, except for
matters arising under the Act, without reference to principles of conflicts of
law.
With such full understandings and acknowledgements, the undersigned does
hereby affirm the undersigned's subscription to the purchase of the Securities
being offered by the Company as described herein and in the Memorandum. The
undersigned does further acknowledge the undersigned's understandings of all the
terms and provisions of this Subscription Agreement and agrees to be bound by
all of the terms and conditions of this Subscription Agreement.
(Continued on next page)
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SIGNATURE PAGE FOR INDIVIDUALS
Please complete the following:
Date:
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Exact Name in Which Title is to be Held
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Signature Signature of Co-Owner
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Print Name Print Name of Co-Owner
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Social Security Number or Tax Social Security Number or Tax
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Address
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City, State, Postal or Zip Code, Country
STATE OF )
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) ss.
COUNTY OF )
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On this _____________ day of ______________, 1999, before me personally
appeared ________________, who being duly sworn by me, acknowledged that (s)he
executed the foregoing instrument for the uses and purposes therein stated.
My commission expires:________________________
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Notary Public Address
* If the Securities are to be held in joint tenancy or as tenants in
common, both persons must sign above and please indicate the manner in which the
Securities are to be held:
Tenants in Common Joint Tenants
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This subscription is accepted by Antennas America, Inc. on this ______ day
of ________, 1999.
ANTENNAS AMERICA, INC.
By:
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Xxxxxxx X. Xxxx, Chief Executive Officer
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SIGNATURE PAGE FOR ENTITIES
Please complete the following if the subscriber is an entity:
DATE: 2/7/00
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Xxxxxx River Investments, Inc.
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Printed Name of Entity
By: [SIG]
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Signature
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Printed Name and Title
000 Xxxxx Xxx, 0xx Xxxxx X.X. 00000 N.Y
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Address
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City, State, Postal or Zip Code, Country
--
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Tax Identification Number
STATE OF )
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) ss.
COUNTY OF )
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On this day of , 1999, before me personally appeared , who
being duly sworn by me, acknowledged that (s)he executed the foregoing
instrument in the name of said entity, that (s)he had the authority to execute
the same, and that (s)he executed the same as the act and deed of said entity
for the uses and purposes therein stated.
My commission expires:
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Notary Public Address
This subscription is accepted by Antennas America, Inc. on this day
of 1999.
ANTENNAS AMERICA, INC.
By:
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Xxxxxxx X. Xxxx, Chief Executive Officer
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