Exhibit 10.5 Form of Subscription Agreement for Q Series Bond, between Eagle
Broadband and certain of the investors listed in the Selling
Stockholders table.
SUBSCRIPTION AGREEMENT
Q-SERIES BOND
EAGLE BROADBAND, INC.
(A Texas Corporation)
Eagle Broadband, Inc., a Texas corporation (the "Company"), is offering for
purchase to a limited number of qualified investors up to 400 units (the
"Units"), each Unit consisting of a $25,000 Bond. The Company reserves the right
to accept or reject any subscription, in whole or in part, and any subscription
that is not accepted will be returned without interest. Subscriptions that are
accepted will be placed in an escrow account until a minimum of $1,000,000 worth
of the Bonds have been sold unless the company elects to accept a lesser amount.
INSTRUCTIONS TO INVESTORS
Persons wishing to subscribe for Units in the Company must perform the
following:
1. Complete and execute the separate Subscription Agreement provided
(Section 5, pages A-6 through A-8), being sure to insert the number of
units purchased, the date and state of execution, the type of
ownership, the exact name in which your shares are to be registered,
tax ID information, and your address information. Execute the proper
signature section as dictated by your type of ownership. This section
must be fully completed and signed.
2. Sign the Q-Series Bond Agreement Signature Page provided in the
separate Subscription Agreement document.
3. Make a check payable to: "Eagle Broadband, Inc."
3. Forward to Eagle Broadband in the prepaid Federal Express envelope
provided.
4. Upon acceptance of the subscription by the Company, the Subscription
Agreement and the Bond Agreement will be executed by the Company and
final copies of the signature pages will be returned to the
Bondholder.
Note to Partnership, Corporate, and Trust Subscribers:
o Partnerships provide a copy of the partnership agreement, as amended
to date, showing the date of formation and giving evidence of the
authority of the person(s) signing the subscription documentation to
do so.
o Corporations provide a copy and the filing date of the articles of
incorporation and bylaws, as amended to date, and a corporate
resolution authorizing the purchase of the shares and giving authority
to the person(s) signing the subscription documents to do so.
o Trusts provide a copy of the trust agreement as amended to date,
showing the date of formation and giving evidence of the authority of
the person(s) signing the subscription documentation to do so.
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Q-SERIES BOND SUBSCRIPTION AGREEMENT
IN
EAGLE BROADBAND, INC.
Dr. H. ▇▇▇▇ ▇▇▇▇▇▇
Eagle Broadband, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
1. SUBSCRIPTION. The undersigned (often referred to individually as
"Purchaser") hereby makes application to become an investor in Eagle Broadband,
Inc., a Texas corporation ("Company"), and to purchase Units at a price of
$25,000 per Unit, in accordance with the terms and conditions of the Private
Offering dated October 1, 2002, and all appendices thereto (the "Memorandum").
This subscription may be rejected by the Company in its sole discretion.
2. ACCEPTANCE OF SUBSCRIPTION. It is understood and agreed that the Company
shall have the right, at any time prior to receipt of notice of cancellation
from the undersigned to accept or reject this Subscription Agreement, in whole
or in part, and that the same shall be deemed to be accepted by the Company only
when it is signed by the Chief Executive Officer.
3. REPRESENTATIONS BY THE UNDERSIGNED. The undersigned represents and
warrants as follows:
a. The Memorandum relating to the offering of the Units has been
received and carefully read and the undersigned will rely solely
upon the information contained in the Memorandum and the
independent investigations made by the undersigned or information
otherwise provided in writing by the Company and the undersigned
is not relying upon any oral representations in making the
decision to purchase the shares subscribed;
b. The undersigned is purchasing the Units without being furnished
any offering literature or prospectus other than the Memorandum
(including appendices);
c. The undersigned recognizes that the Bonds have not been registered
under the Securities Act of 1933, as amended ("Act"), nor under
the securities laws of any state and, therefore, cannot be resold
unless resale of the component parts of the Units is registered
under the Act or unless an exemption from registration is
available; no public agency has passed upon the accuracy or
adequacy of the information contained in the Memorandum or the
fairness of the terms of the offering; the undersigned may not
sell the shares without registering them under the Act and any
applicable state securities laws unless exemptions from such
registration requirements are available with respect to any such
sale;
d. The undersigned is acquiring the Units for his own account for
long-term investment and not with a view toward resale,
fractionalization or division, or distribution thereof; and he
does not presently have any reason to anticipate any change in his
circumstances, financial or otherwise, or particular occasion or
event which would necessitate or require his sale or distribution
of the shares. No one other than the undersigned has any
beneficial interest in said securities;
e. The undersigned understands and acknowledges that the undersigned
has no right to require registration of resale of the securities
purchased hereby under the Act or under any state securities laws.
f. The undersigned is an Accredited Investor. An Accredited Investor
shall mean any person who comes within any of the following
categories, or whom the Company reasonably believes comes within
any of the following categories, at the time of the sale of the
securities to that person:
(1) Any bank as defined in section 3(a)(2) of the Act or savings
and loan association or other institution as defined in
Section 3(a)(5)(A) of the Act whether acting in an
individual or fiduciary capacity; brokers and dealers
registered under Section 15 of the Securities Exchange Act
of 1934; an insurance company as defined in section 2(13) of
such act; an investment company registered under the
Investment Company Act of 1940 or a business development
company as defined in section 2(a)(48) of such act; a Small
Business Investment Company licensed by the U. S. Small
Business Administration under section 301(c) or (d) of the
Small Business Investment Act of 1958; an employee benefit
plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, if the investment
decision is made by a plan fiduciary, as defined in section
3(21) of such act, which is either a bank, insurance
company, or registered investment adviser, or if the
employee benefit plan has total assets in excess of
$5,000,000;
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(2) Any private business development company as defined in
section 202(a)(22) of the Investment Advisers Act of 1940;
(3) Any organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar
business trust, or partnership, not formed for the specific
purpose of acquiring the securities offered, with total
assets of more than $5,000,000;
(4) Any director, executive officer, or general partner of the
issuer of the securities being offered or sold, or any
director, executive officer, or general partner of a general
partner of that issuer;
(5) Any 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;
(6) Any 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 that same level in the current year;
(7) Any 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
person as described in Rule 506(b)(2)(ii) of Regulation D;
and
(8) Any entity in which all of the equity owners are Accredited
Investors.
g. The undersigned recognizes that the total amount of funds tendered
to purchase the Units is placed at the risk of the business and
may be completely lost. The undersigned understands that there can
be no assurance of profitable operations. The purchase of Units as
an investment involves risks, including those set forth in the
Memorandum;
h. The undersigned realizes that the Units cannot readily be sold,
that it may not be possible to sell or dispose of the Units; and,
therefore, the Units must not be purchased unless the undersigned
has liquid assets sufficient to assure that such purchase will
cause no undue financial difficulties and the undersigned can
provide for current needs and possible personal contingencies;
i. The undersigned confirms and represents that the undersigned is
able (i) to bear the economic risk of his investment, (ii) to hold
the securities for an indefinite period of time, and (iii) to
afford a complete loss of the undersigned's investment. The
undersigned also represents that the undersigned has (i) adequate
means of providing for the undersigned's current needs and
possible personal contingencies, and (ii) no need for liquidity in
this particular investment;
j. The undersigned understands that there are substantial
restrictions on the transferability of the component parts of the
Units and that any certificate or other document evidencing the
component parts of the Units will have substantially the following
restrictive legend thereon:
"The securities represented by this certificate have been
acquired for investment and have not been registered under the
Securities Act of 1933, as amended ("Act") or the securities
laws of any state. Such securities may not be sold, pledged,
hypothecated or otherwise transferred at any time except upon
registration or upon delivery to the Company of an opinion of
counsel satisfactory to the Company that such registration is
not required or evidence satisfactory to the Company that any
such transfer will not violate the Act or the securities laws
of any state."
k. All information which the undersigned has provided to the Company
concerning the undersigned's financial position and knowledge of
financial and business matters is correct and complete as of the
date set forth herein; and, if there should be any material change
in such information prior to acceptance of this Subscription
Agreement by the Company, the undersigned will immediately provide
the Company with such information;
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l. The undersigned has carefully considered and has, to the extent
the undersigned believes such discussion necessary, discussed with
the undersigned's professional legal, tax and financial advisors
and the undersigned's purchaser representative(s), if any, the
suitability of an investment in the Company for the undersigned's
particular tax and financial situation and the undersigned and the
undersigned's advisors or the undersigned's purchaser
representative(s), if any, have determined that the investment is
a suitable investment for the undersigned;
m. The undersigned has been presented with and has acted upon the
opportunity to ask questions and receive answers from the Company
relating to the terms and conditions of the offering in order to
obtain any additional information necessary to verify the accuracy
of the information made available to him;
n. The undersigned has not become aware of the offering of Units 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; and
o. The undersigned is a bona fide resident of the state set forth as
his "residence address" in the Subscription Agreement, and that
(i) if a corporation, partnership, trust, or other form of
business organization, it has its principal office within such
state; (ii) if an individual, he has his principal residence in
such state; and (iii) if a corporation, partnership, trust, or
other form of business organization which was organized for the
specific purpose of acquiring the Units in the Company, all of its
beneficial owners are residents of such state.
5. INDEMNIFICATION. It is acknowledged that the meaning and legal
consequences of the representations and warranties contained in
this Subscription Agreement are understood and the undersigned
hereby agrees to indemnify and hold harmless the Company and each
officer thereof from and against any and all loss, damage and
liability due to or arising out of a breach of any of the
representations and warranties made in this Subscription
Agreement. The representations and warranties contained herein are
intended to and shall survive delivery of the Subscription
Agreement, and the completion of the transactions set forth in the
Memorandum.
5. PURCHASE OF UNITS. The undersigned hereby subscribes to purchase
_______________ Units for a total investment of $_____________________ ($25,000
per Unit).
The purchase price is being paid herewith by delivery of a check payable to
"Eagle Broadband, Inc." All checks and subscription agreements should be
returned to Eagle Broadband, Inc., Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. You may use the prepaid FedEx mailer that is
enclosed in the offering folder. Subscription funds may also be wire transferred
directly into the Eagle Broadband bank account. Please call ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ at
▇-▇▇▇-▇▇▇-▇▇▇▇ for wire transfer instructions.
This Subscription Agreement, being an integral part of the Memorandum for
all purposes, is executed on this the _____ day of ______________________, 2002,
in the State of ________________________.
TYPE OF OWNERSHIP (CHECK ONE)
_____ INDIVIDUAL OWNERSHIP (one signature _____ COMMUNITY PROPERTY (one signature if shares
required) are held in one name, i.e., managing
spouse; two signatures required if interest
is held in both names)
_____ CORPORATION (Please include certified
corporate resolution authorizing _____ PARTNERSHIP (Please include a copy of the
signature.) statement of partnership or partnership
agreement authorizing signature.)
_____ TRUST (Please include name of trust,
name of trustee, date trust was formed
and copy of the trust agreement or other
authorization.)
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The exact name the Investor desires on records of the Company. Tax ID or Social Security Number
Please print the address and phone numbers that you would like us to use
for official notices regarding your investment (this includes the delivery of
your stock certificates):
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Address, City, State, Zip Code, Country
---------------- ---------------------- -----------------------------
Telephone Number Facsimile Number (FAX) Electronic Mail Address
Please provide the Company with an alternate address and phone number that could
be used for notifying you of newsworthy and other general Company announcements:
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Address, City, State, Zip Code, Country
---------------- ---------------------- -----------------------
Telephone Number Facsimile Number (FAX) Electronic Mail Address
EXECUTION
Please execute this Subscription Agreement by completing the appropriate section
below.
1. If the subscriber is an INDIVIDUAL, complete the following:
-----------------------------------
Signature of Investor
-----------------------------------
Name (please type or print)
-----------------------------------
Signature of Spouse or
Co-Owner if funds are to be
invested as joint tenants
by the entirety or
community property.
-----------------------------------
Name (please type or print)
2. If the subscriber is a CORPORATION, complete the following:
The undersigned hereby represents, warrants and covenants that the
undersigned has been duly authorized by all requisite action on the
part of the corporation listed below ("Corporation") to acquire the
Units and, further, that the Corporation has all requisite authority to
acquire such Units.
The officer signing below represents and warrants that each of the
above representations or agreements or understandings set forth herein
applies to that Corporation and that he has authority under the
articles of incorporation, bylaws, and resolutions of the board of
directors of such Corporation to execute this Subscription Agreement.
Such officer encloses a true copy of the articles of incorporation, the
bylaws and, as necessary, the resolutions of the board of directors
authorizing a purchase of the investment herein, in each case as
amended to date.
--------------------------------------------------
Name of Corporation (please type or print)
By:
------------------------------------------
(signature)
Name:
------------------------------------------
(please type or print)
Title:
------------------------------------------
(please type or print)
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3. If the subscriber is a PARTNERSHIP, complete the following:
The undersigned hereby represents, warrants and covenants that the
undersigned is a general partner of the partnership named below
("Partnership"), and has been duly authorized by the Partnership to
acquire the Units and that he has all requisite authority to acquire
such Units for the Partnership.
The undersigned represents and warrants that each of the above
representations or agreements or understandings set forth herein
applies to that Partnership and he is authorized by such Partnership to
execute this Subscription Agreement. Such partner encloses a true copy
of the partnership agreement of said Partnership, as amended to date,
together with a current and complete list of all partners thereof.
----------------------------------------------
Name of Partnership (please type or print)
By:
--------------------------------------
(signature)
Name:
--------------------------------------
(please type or print)
Title:
--------------------------------------
(please type or print)
4. If the subscriber is a TRUST, complete the following:
The undersigned hereby represents, warrants and covenants that he is
duly authorized by the terms of the trust instrument ("Trust
Instrument") for the ("Trust") set forth below to acquire the Units and
the undersigned, as trustee, has all requisite authority to acquire
such Units for the Trust.
The undersigned, as trustee, executing this Subscription Agreement on
behalf of the Trust, represents and warrants that each of the above
representations or agreements or understandings set forth herein
applies to that Trust and he is authorized by such Trust to execute
this Subscription Agreement. Such trustee encloses a true copy of the
Trust Instrument of said Trust as amended to date.
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Name of Trust (Please type or print
By:
-----------------------------------------
(signature)
Name:
-----------------------------------------
(please type or print)
Title:
-----------------------------------------
(please type or print)
ACCEPTED BY THE COMPANY this the ___ day of _______________, 2002.
EAGLE BROADBAND, INC.
By:
----------------------------------------
Dr. H. ▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
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