Exhibit 99.2
WIRELESS AGE COMMUNICATIONS, INC.
00000 Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxx, X0X 0X0 Xxxxxx
Facsimile: (000) 000-0000
SUBSCRIPTION AGREEMENT
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT"), AND ARE BEING OFFERED AND SOLD ONLY TO ACCREDITED INVESTORS
IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT. SUCH
SECURITIES MAY NOT BE REOFFERED FOR SALE OR RESOLD OR OTHERWISE TRANSFERRED
UNLESS THEY ARE REGISTERED UNDER THE APPLICABLE PROVISIONS OF THE ACT OR ARE
EXEMPT FROM SUCH REGISTRATION. THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") OR BY
ANY STATE SECURITIES ADMINISTRATION OR REGULATORY AUTHORITY.
This agreement (the \"Subscription Agreement\"), by and between WIRELESS AGE
COMMUNICATIONS, INC., a Nevada corporation (the "Company") and the purchaser
signatory hereto (referred to herein as \"you\" and the "Subscriber"), who is
subscribing hereby for the common stock, par value $0.001 per share of the
Company, at such price and in such amount as calculated and described on the
signature page hereto (each, a \"Share\" and collectively, the "Shares"), in
connection with a private placement offering made solely to accredited investors
(the "Private Placement Offering") as a non-public offering made in accordance
with the provisions of Section 4(2) of the Securities Act of 1933, as amended
(the \"1933 Act\").
In consideration of the Company's agreement to accept the undersigned Subscriber
as a purchaser of the Shares, the Subscriber agrees to the terms and conditions
set forth herein:
1. Subscription; Tender of Consideration. The Subscriber hereby irrevocably
subscribes for and irrevocably offers to purchase the principal amount of Shares
set forth on the signature page hereto, on the terms and conditions described
herein. In consideration for such subscription, the Subscriber hereby
irrevocably tenders to the Company this Subscription Agreement and undertakes to
promptly deliver to the Company the Consideration, as such term is defined on
the signature page below, to the address specified on Annex A attached hereto.
2. Acceptance of Subscription; Return of Consideration. The Company shall
have the right, exercisable in its sole and absolute discretion, to accept or
reject this subscription within thirty days of the date of tender. If the
subscription is accepted, the Company will return an executed counterpart of
this Subscription Agreement to you. If the subscription is not accepted, the
Consideration will be returned to you. Following tender, no interest will be
earned by you on any Consideration. Upon acceptance by the Company, you agree
to any and all further actions reasonably necessary and reasonably requested by
the Company, which shall be determined at the sole discretion of the Company, in
order to fully vest in the name of the Company all right, title and interest to
the Consideration.
3. Closing. The closing with respect to each sale of Shares to each
Subscriber under the Private Placement Offering shall be deemed to occur as of
the date upon which (a) this Agreement shall have been executed by both the
Subscriber and the Company; (b) the Escrow Agreement shall have been executed
and delivered by each of the Subscriber, the Company and the Company's agent as
set forth on Annex A; and (b) the Consideration for payment of the Shares hereby
subscribed shall have been received into the custody of the agent set forth on
Annex A attached hereto (each such event, a "Closing"). In the event that the
Company does not accept the Subscription, for any reason at the sole discretion
of the Company, all Consideration of the Subscriber in the possession of the
Company shall be promptly returned to the Subscriber without further obligation
and this Subscription Agreement shall have no further force or effect. The
Company shall as soon as reasonably practicable following the Closing deliver to
the Subscriber one or more originally executed Share Certificates in the
principal amount of the subscription hereunder.
4. Representations and Warranties of Subscriber. The Subscriber hereby
represents and warrants to the Company all of the following:
(a) THE SUBSCRIBER IS AN ACCREDITED INVESTOR AS SUCH TERM IS DEFINED UNDER
REGULATION D OF THE 1933 ACT, WHICH DEFINITION IS ATTACHED HERETO AS EXHIBIT A;
(b) THE SUBSCRIBER ACKNOWLEDGES THAT INVESTMENT IN THE SECURITIES OF THE
COMPANY OFFERED HEREBY IS HIGHLY SPECULATIVE AND INVOLVES A VERY HIGH DEGREE OF
RISK AND SHOULD NOT BE MADE UNLESS THE INVESTOR IS PREPARED TO, AND CAN AFFORD
TO, LOSE THE ENTIRE INVESTMENT;
(c) THE SUBSCRIBER (I) HAS SUFFICIENT KNOWLEDGE, SOPHISTICATION AND
EXPERIENCE IN BUSINESS AND FINANCE TO CAPABLY EVALUATE INFORMATION CONCERNING AN
INVESTMENT IN THE COMPANY, (II) HAS HAD AN OPPORTUNITY TO REVIEW THE COMPANY'S
PUBLICLY FILED REPORTS, AND TO ASK DETAILED QUESTIONS AND RECEIVE SATISFACTORY
ANSWERS FROM REPRESENTATIVES OF THE COMPANY, (III) HAS HAD ADEQUATE OPPORTUNITY
TO REQUEST AND REVIEW ANY AND ALL DOCUMENTS AND OTHER INFORMATION RELEVANT TO
SUBSCRIBER'S CONSIDERATION OF INVESTMENT IN THE SECURITIES OFFERED HEREBY, (IV)
HAS OTHERWISE OBTAINED SUFFICIENT INFORMATION FROM THE COMPANY TO EVALUATE THE
MERITS AND RISKS OF AN INVESTMENT IN THE COMPANY; (V) HAS INDEPENDENTLY
CONSIDERED AND DISCUSSED SUCH PROSPECTIVE INVESTMENT WITH THE SUBSCRIBER'S
BUSINESS, LEGAL, TAX AND FINANCIAL ADVISERS AS TO THE SUITABILITY OF SUCH
INVESTMENT WITH RESPECT TO THE SUBSCRIBER'S PARTICULAR FINANCIAL SITUATION, AND
(VI) ON THE BASIS OF THE FOREGOING, THE SUBSCRIBER HAS DETERMINED THAT
INVESTMENT IN THE SECURITIES OFFERED HEREBY IS A SUITABLE INVESTMENT;
(d) THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE 1933
ACT, OR UNDER ANY STATE SECURITIES ACT AND THIS SECURITIES OFFERING IS MADE IN
RELIANCE ON ONE OR MORE EXEMPTIONS FOR PRIVATE OFFERINGS UNDER THE 1933 ACT AND
APPLICABLE STATE SECURITIES LAWS, AND THE SUBSCRIBER FURTHER ACKNOWLEDGES THAT
HE OR SHE IS PURCHASING AN INTEREST IN THE COMPANY ONLY IN RELIANCE UPON SUCH
INFORMATION AS HAS BEEN OBTAINED FROM THE COMPANY'S FILINGS WITH THE UNITED
STATES SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") AND IN WRITING FROM
THE COMPANY.
(e) NO REPRESENTATIONS OR ASSURANCES OF THE OUTCOME, PROFITABILITY OR
OTHERWISE, OF ANY INVESTMENT IN THE COMPANY HAVE BEEN MADE TO SUBSCRIBER;
NEITHER THE COMMISSION NOR ANY OTHER FEDERAL OR STATE AGENCY HAS PASSED ON THE
MERITS OF AN INVESTMENT IN THE COMPANY, AND ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE;
(f) Unless and until the Shares are registered, there are substantial
restrictions on the transferability of the Shares; the Subscriber must bear the
economic risk of an investment in the Shares, in each case for an indefinite
period; the Shares have not been registered under the 1933 Act or under the
securities laws of any states and, therefore, cannot be sold, transferred,
assigned, hypothecated, pledged, or otherwise disposed of unless they are
registered under the 1933 Act and under the applicable securities laws of such
states, or an exemption from such registration is available, and Subscriber
further understands he or she has no right to require that the Shares be
registered by the Company under the 1933 Act or any state laws except as
expressly set forth herein in Paragraph 9 below;
(g) The Shares for which the Subscriber hereby subscribes are being acquired
solely for his or her own account (or a fiduciary account if he or she is a
fiduciary to an accredited investor, or for the joint account of Subscriber and
his or her spouse) and for investment only; the Shares are not being purchased
with a view to or for the resale, distribution, subdivision or fractionalization
thereof and the Subscriber has no plans to enter into any contract, undertaking,
agreement or arrangement for any such purpose;
(h) The Shares will bear a restrictive legend prohibiting transfers thereof
except in compliance with the 1933 Act and other applicable state securities
laws and will not be transferred of record except in compliance therewith or
exemption therefrom;
(i) If the Subscriber is a corporation, partnership trust or estate: the
person executing this Subscription Agreement on behalf of the Subscriber has
reached the age of 21 and such signatory has been duly authorized and is duly
qualified to execute and deliver this Subscription Agreement and all other
instruments executed and delivered on behalf of such entity, the Subscriber is
duly organized, validly existing, and in good standing in its jurisdiction of
organization under the laws of a state of the United States and has all the
requisite power and authority to invest in the Shares as provided herein and is
not controlled, directly or indirectly, by any person or entity not a citizen of
the United States; and an investment in the Shares does not result in any
violation of, or conflict with any term of the charter, bylaws, partnership
agreement, trust deed or other governing instrument of the Subscriber or any
other contract to which it is bound or any law or regulation applicable to it;
(j) The address set forth in this Subscription Agreement is the Subscriber's
true and correct residence and jurisdiction, and the Subscriber has no present
intention of becoming a resident of any other state or jurisdiction; all offers
or solicitations of interests about the Company were made to the Subscriber at
that address or elsewhere within that state; no offers or solicitations were
made to the Subscriber in any state other than that state; and the Subscriber
executed this Subscription Agreement within that state;
(k) There are no third party interests in the Consideration and such
Consideration has not served as a conduit for any illegal purposes or illegal
activity, including, without limitation, any money laundering and/or terrorist
activities;
(l) To the knowledge of Subscriber after reasonable investigation, the
Consideration is not subject to any security interest of any kind or nature and
is free and clear of any and all liens, encumbrances and/or claims which may
result, directly or indirectly, contingent or otherwise, in the existence or
establishment of a security interest in the Consideration; and
(m) The foregoing representations and warranties are true and accurate as of
the date hereof, shall be true and accurate as of the date of the acceptance
hereof by the Company and shall survive thereafter. If such representations and
warranties shall not be true and accurate in any respect, the Subscriber will,
prior to such acceptance, give written notice of such fact to the Company
specifying which representations and warranties are not true and accurate and
the reasons therefore.
5. Indemnification. The Subscriber acknowledges that he or she understands
the meaning and legal consequences of the representations and warranties
contained herein, and the Subscriber hereby agrees to indemnify and hold
harmless the Company, its officers, directors, employees, and each person, if
any, who controls the Company, within the meaning of Section 15 of the 1933 Act
and all representatives, agents and counsel of the Company (the Company and all
of the aforementioned persons and legal entities, collectively, the
\"Indemnified Persons\") against any and all loss, liability, claim, damage and
expense whatsoever (including, but not limited to, any and all expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any litigation commenced or threatened or any claim whatsoever) arising out of
or based upon any false representation or warranty or breach or failure by the
Subscriber to comply with any covenant or agreement made by the Subscriber
herein or in any other document furnished by the Subscriber to any of the
foregoing in connection with this transaction. The Subscriber shall indemnify
and hold harmless the Company or any of its officers, employees, registered
representatives, directors, or control persons of any such entity who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of or arising from any actual or alleged
misrepresentation or misstatement of facts or omission to represent or state
facts made by the Subscriber to the Company concerning, without limitation,
Subscriber or Subscriber's status as an Accredited Investor or financial
position in connection with the offering or sale of the Shares which is not
remedied by timely notice to the Company as provided above, against losses,
liabilities and expenses for which any of the Indemnified Persons have not
otherwise been reimbursed (including attorneys' fees, judgments, fines and
amounts paid in settlement) as actually and reasonably incurred by such person
or entity in connection with such action, suit, or proceeding.
6. Covenants and Dispute Resolution.
(a) Non-Assignment Covenant. The Subscriber agrees not to transfer or
assign this Subscription Agreement and further agrees, except as provided
herein, that the assignment and transferability of the Shares acquired pursuant
hereto shall be undertaken only in accordance with registration under the 1933
Act and applicable state laws, or by an exemption from registration which may be
available therefrom.
(b) Arbitration. Any controversy or claim arising out of or relating
to this Subscription Agreement, or the breach or interpretation thereof (each a
\"Controversy\") shall be settled by finally arbitration in accordance with the
Commercial Arbitration Rules, then obtaining, of the American Arbitration
Association. Unless parties to such Controversy shall have agreed to alternative
terms, the arbitration shall be conducted in Las Vegas, Nevada, before a single
arbitrator, who shall be an attorney with at least ten (10) years experience in
corporate and securities matters and who shall have no affiliation whatsoever
with any of the parties to the Controversy. Liability for the fees and expenses
of such arbitrator shall be paid by the non-prevailing party to the arbitration.
The parties agree that neither of them shall be liable to the other for any
punitive damages as a result of any breach of this Subscription Agreement. Any
other contrary provision of this Subscription Agreement notwithstanding the
provisions of this paragraph shall be construed according to the laws of the
state of New York, irrespective of any conflict of law provision. The
determination rendered by the arbitrator shall specify the finding of facts upon
which it is based and the reasons therefore, and shall be conclusive and binding
upon the parties and a judgment thereon may be entered in any court of competent
jurisdiction over the parties.
7. Revocation. The Subscriber agrees that he or she will not cancel,
terminate, or revoke this Subscription Agreement or any agreement made hereunder
and that this Subscription Agreement shall survive the death or disability of
the Subscriber.
8. Acceptance of Subscription. Execution of this Subscription Agreement by
the Subscriber constitutes an irrevocable offer by the Subscriber to subscribe
for the number of Shares specified on the signature page hereto. If this offer
is rejected for any reason, the Subscriber's subscription Documents shall be
returned to the Subscriber as promptly as practicable and the Company and the
Subscriber shall have no further obligations to each other, other than the
obligation of the Company to return the Subscriber's Consideration to such
Subscriber.
9. Registration. The Company at its sole cost and expense shall file a
registration statement with the U.S. Securities and Exchange Commission covering
the Shares (the "Registration Statement") no later than ninety (90) after the
Closing. The Company shall prepare and file with the Commission such
Registration Statement to be made on a continuous basis pursuant to Rule 415 and
to keep such Registration Statement continuously effective under the Securities
Act until such date as is the earlier of (i) the date when all securities
covered by such Registration Statement have been sold or (ii) the date on which
the securities may be sold pursuant to Rule 144. The Subscriber agrees to
cooperate with the Company in the preparation and filing of the Registration
Statement, and in the furnishing of information concerning the Subscriber for
inclusion therein, including, without limitation, any efforts by the Company to
establish the exemption under the Securities Act of the sale of the Securities
to the Subscriber hereunder. If the Registration Statement is not filed within
the foregoing time period, an amount equal to the purchase price of the Shares
shall be payable to the Subscriber at an interest rate of 8% per annum with
respect to the period in which the Company is in default of such filing until
the earlier of (a) registration rights are no longer required to be effective
and/or (b) Subscriber no longer owns any of the Shares. Subscriber agrees and
acknowledges that such Registration Statement shall be filed by the Company on
the basis of commercially reasonable efforts and there can be no assurance that
such Registration Statement will be declared effective by the Securities and
Exchange Commission. Subscriber furthermore acknowledges and agrees that the
Registration Statement is not exclusive to the Subscriber and the Company, as
well as other shareholders of the Company, may, at the sole discretion of the
Company, register other shares of the Company's common stock and/or other
securities thereon.
9. Miscellaneous.
All notices or other communications given or made hereunder shall be in
writing and shall be delivered or mailed by certified mail return receipt
requested or by recognized overnight courier service requiring acknowledgement
of receipt of delivery, which in all cases shall be deemed delivered upon
confirmation of receipt thereof, and in the case of the Subscriber at the
address set forth below and to the Company at its address written above.
(a) This Subscription Agreement and the executed Share representing the
purchase of the Share as subscribed herewith, constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and may be
amended only by a writing executed by all parties.
(b) Whenever required by the context hereof, the singular shall include the
plural, and vice-versa; the masculine shall include the feminine and neuter
genders, and vice-versa.
(c) If the Subscriber consists of one or more persons or entities, the
obligations hereunder shall be joint and several.
(d) This Subscription Agreement may be severable and the invalidity or
illegality of any portion hereof shall not affect the validity or legality of
the remainder hereof.
(e) This Subscription Agreement may be executed in one or more
counterparts, each of with together shall constitute one and the same original
instrument.
(f) This Agreement, including without limitation the representations,
warranties, acknowledgements, undertakings and indemnities given by Subscriber,
shall survive the Closing of the sale of the Shares.
(g) The Subscriber agrees to maintain strict confidentiality with respect
to this Subscription Agreement and any and all materials provided to Subscriber
by the Company, except with respect to consultations which Subscriber may have
with his or her financial and legal advisors, as to which Subscriber shall
obtain undertakings of confidentiality from such persons with respect to all
such materials. The Company may make any and all disclosures regarding the
Subscriber and this Subscription Agreement which the Company believes are
reasonably necessary, as determined in the Company's sole discretion, to comply
with any and all rules, regulations and laws applicable to the Company.
(h) The Subscriber agrees to do such further acts and to execute and
deliver such statements, assignments, agreements, instruments and other
documents as the Company may request reasonably from time to time in connection
with the administration, maintenance, enforcement and effectiveness of this
Agreement, including, without limitation, provision of any and all information
and due diligence materials relating to anti-money laundering compliance as may
be reasonably requested by the Company and/or the bank or other financial
institution serving the Company in connection with the Closing contemplated
herein.
[Signature Page Follows]
IN WITNESS WHEREOF, the Subscriber has executed this Subscription Agreement as
of this ___ day of ____________, 2004.
Print Full Legal Name of Subscriber:
(check investor type ):
[ ] Individual [ ] Tenants in Common [ ] Partnership
[ ] Joint Tenants [ ] Corporation [ ] Trust
[ ] Minor with adult custodian under the Uniform Gift to Minors Act
Subscriber's Social Security Number(s) or Taxpayer Identification Number:
Description of Subscriber Consideration: 8% Convertible Subordinated Promissory
Note of Relm Wireless Corporation (the \"Debenture\")
Calculation of Purchase Price and Shares to be Issued:
Face value of Debenture $__________________ (A)
Times 1.5 X 1.5 (B)
Notional amount $__________________ (A) X (B)
Divided by $2.00 /$2.00 /(C)
Wireless Age Communications Inc.
Shares to be issued __________________ (A) X (B) divided by (C)
Signature(s) of Subscriber or Subscriber's authorized officer(s), trustee(s) or
fiduciary(ies):
_______________________________________
Print Name:
Title:
_______________________________________
Print Name:
Title:
Address for Notices:
Telephone Number:
Fax Number:
e-mail:
Subscription Accepted for Subscriber's Purchase of Shares
Agreed this ___ day of _______________, 2004:
WIRELESS AGE COMMUNICATIONS, INC.
By:
Name:
Title:
Exhibit A
Definition of "Accredited Investor"
"Accredited investor" shall mean any person who comes within any of the
following categories, or who the issuer 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 any 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; any broker or dealer
registered pursuant to section 15 of the Securities Exchange Act of 1934; any
insurance company as defined in section 2(13) of the Act; any investment company
registered under the Investment Company Act of 1940 or a business development
company as defined in section 2(a)(48) of that Act; any 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; any 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; any
employee benefit plan within the meaning 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, savings and loan
association, insurance company, or registered adviser, 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;
(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 in excess of $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 the same income 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 ss. 230.506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited investors.
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