EXHIBIT 10.39
SUBSCRIPTION AGREEMENT AND
EXECUTION DOCUMENTS
UNIVERSAL COMMUNICATION SYSTEMS, INC.
COMMON STOCK
____________ SHARES
Enclosed herewith are the documents necessary to subscribe for Shares
of Common Stock, $.001 par value per share (the "Shares"), of Universal
Communication Systems, Inc. ("UCSI" or the "Company"). Set forth herein are
instructions for the execution of the enclosed documents.
TABLE OF CONTENTS
How to subscribe
A. Instructions
B. Communications
Subscription Agreement (2 copies)
Appendix A-Consideration to be Delivered
Appendix B-Accredited Investor Certificate
HOW TO SUBSCRIBE
A. Instructions.
Each person considering subscribing the Shares should review the following
instructions:
Subscription Agreement: Two copies of the form Subscription Agreement and
Appendixes A and B attached to the Subscription Agreement should be completed,
executed and delivered to the company at the address set forth below. The
Company will execute both copies of the Subscription Agreement and return one to
you for your records.
The company shall have the right to accept or reject any subscription, in
whole or in part.
An acknowledgement of the acceptance of your subscription for Shares will
be returned to you promptly after acceptance.
Payment: Payment of $______ for each Share subscribed for shall be made by
delivery at the Closing (as defined in Section 3 of the Subscription Agreement)
of cash to the Company at the address set forth below to an account specified by
the Company.
B. Communications.
All documents and checks should be forwarded to:
Universal Communication Systems, Inc.
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Attention: Chief Financial Officer
THE SHARES COMMON STOCK OF UNIVERSAL COMMUNICATION SYSTEMS, INC. HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS
OF ANY STATE. THERE ARE FURTHER RESTRICTIONS ON THE TRANSFERABILITY OF THE
SHARES DESCRIBED HEREIN.
THE PURCHASE OF SHARES COMMON STOCK OF UNIVERSAL COMMUNICATION
SYSTEMS, INC. INVOLVES A HIGH DEGREE OF RISK AND SHOULD BE CONSIDERED ONLY
BY PERSONS WHO CAN BEAR THE RISK OF THE LOSS OF THEIR ENTIRE INVESTMENT.
SUBSCRIPTION AGREEMENT
Universal Communication Systems, Inc.
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Gentlemen:
The undersigned understands that Universal Communication Systems, Inc.
(the "Company"), is offering for sale up to __________ Shares of its Common
Stock, $.001 par value per share (the "Shares"), having the rights, privileges
and preferences as set forth in the Certificate of Designations (the
"Certificate") attached hereto as Exhibit A. The undersigned further understands
that the offering is being made without registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"), and is being made
only to "accredited investors" (as defined in Rule 501 of Regulation D under the
Securities Act).
1. Subscription: Subject to the terms and conditions hererof and the
provisions of the Memorandum, the undersigned hereby irrevocably
subscribes for that number of Shares set forth in Appendix A
hereto at a price per share of $_______, which is payable as
described in Section 4 hereof.
2. Acceptance of Subscription and Issuance of Shares. It is
understood and agreed that the Company shall have the sole right,
at its complete discretion, to accept or reject this subscription,
in whole or in part, for any reasons and that the same shall be
deemed to be accepted by the Company only when it is signed by a
duly authorized officer of the Company and delivered to the
undersigned at the Closing referred to in Section 3 hereof.
Notwithstanding anything in this Agreement to the contrary, the
Company shall have no obligation to issue any of the Shares to any
person who is a resident of a jurisdiction in which the issuance
of Shares to him would constitute a violation of the securities,
"blue sky" or other similar laws of such jurisdiction
(collectively referred to as the "State Securities Laws").
3. The Closing. The closing of the purchase and sale of the Shares
(the "Closing") shall take place at such time and place as the
Company shall designate by notice to the undersigned.
4. Payment for Shares. Payment for the Shares shall be received by
the Company from the undersigned by cashier's check or wire
transfer of immediately available funds at or prior to the
Closing, in an amount as set forth in Appendix A hereto. The
Company shall deliver the Shares to the undersigned at the
Closing.
5. Representations and Warranties of the Company. As of the Closing,
the Company represents and warrants that:
(a) The Company is duly incorporated, validly existing and in good
standing under the laws of the State of Nevada, with full
power and authority to conduct its business as it is currently
being conducted and to own its own assets; and has secured any
other authorizations, approvals, permits and orders required
by law for the conduct by the Company of its business as it is
currently being conducted.
(b) The Company has duly authorized the issuance and sale of the
Shares upon the terms of their offer by all requisite
corporate action.
(c) The Shares, when issued and paid for, will represent validly
authorized, duly issued and fully paid and nonassessable
Shares of the Company, and the issuance thereof will not
conflict with the certificate of incorporation or bylaws of
the Company nor with any outstanding warrant, option, call,
preemptive right or commitment of any type relating to the
Company's capital stock. The Shares shall have the rights,
preferences and privileges set forth in the Certificate.
(d) No representation or warranty by the Company in this
Agreement, and no statement by an officer of the Company
contained in any document, certificate or other writing
furnished to the undersigned in connection with the
transactions contemplated hereby, when taken as a whole,
contains any untrue statement of a material fact or omits to
state any material fact necessary to make statements herein or
therein not misleading in light of the circumstances in which
they are made.
6. Representations, Warranties and Covenants of the Undersigned. The
undersigned hereby represents and warrants to and covenants with
the Company and each officer, director and agent of the Company
that:
(a) General:
(i) The undersigned has all requisite authority to enter
into this Agreement and to perform all the obligations
required to be performed by the undersigned hereunder.
(ii) The undersigned is a resident of the state or country
set forth on the signature page hereto and is not
acquiring the Shares as an agent or otherwise for any
person.
(b) Information Concerning the Company:
(i) The undersigned has been given the opportunity to obtain
any information necessary to verify the accuracy of the
information contained in documents supplied by the
Company and has been furnished all such information so
requested.
(ii) The undersigned understands that, unless he notifies the
Company in writing to the contrary at or before the
Closing, all the undersigned's representations and
warranties contained in this Agreement will be deemed to
have been reaffirmed and confirmed as of the Closing,
taking into account all information received by the
undersigned.
(iii) The undersigned understands that the purchase of the
Shares involves various risks, including those outlined
in this Agreement.
(iv) The undersigned understands that no federal or state
agency has passed upon the Shares or made any finding or
determination concerning the fairness or advisability of
this investment.
(c) Status of the Undersigned:
(i) The undersigned has such knowledge, skill and experience
in business, financial and investment matters so that he
is capable of evaluating the merits and risks of an
investment in the Shares. To the extent necessary, the
undersigned has retained, at his own expense, and relied
upon, appropriate professional advice regarding the
investment, tax and legal merits and consequences of
this Agreement and owning Shares.
(ii) The undersigned is an "accredited investor" as defined
in Rule 501 (a) under the Securities Act. The
undersigned 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 Shares. The undersigned
acknowledges that he has completed the Accredited
Investor Certificate contained in Appendix B and the
information contained therein is complete and accurate
as of the date thereof and is hereby affirmed as of the
date hereof.
(d) Restrictions on Transfer or Sale of Shares:
(i) The undersigned is acquiring The Shares solely for his
own beneficial Account, for investment purposes, and not
with a view to, or for resale in connection with, any
distribution of the Shares. The undersigned understands
that the Shares have not been registered under the
Securities 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
undersigned and of the other representations made by the
undersigned in this Agreement. The undersigned
understands that the Company is relying upon the
representations and agreements contained in this
agreement (and any supplemental information) for the
purpose of determining whether this transaction meets
the requirements for such exemptions.
(ii) The undersigned understands that the Shares are
"restricted securities" under applicable federal
securities laws and that the Securities Act and the
rules of the Securities and Exchange Commission (the
"Commission") provide in substance that the undersigned
may dispose of the Shares only pursuant to an effective
registration statement under the Securities Act or an
exemption therefrom, and the undersigned understands
that the Company has no obligation or intention to
register any of the Shares (except for the registration
rights granted hereunder), or to take action so as to
permit sales pursuant to the Securities Act (including
Rule 144 thereunder). Accordingly, the undersigned
understands that under the Commission's rules, the
undersigned may dispose of the Shares principally only
in "private placements" which are exempt from
registration under the Securities Act, in which event
the transferee will acquire "restricted securities"
subject to the same limitations as in the hands of the
undersigned. As a consequence, the undersigned
understands that he must bear the economic risks of the
investment in the Shares for an indefinite period of
time.
(iii) The undersigned agrees: (A) that he will not sell,
assign, pledge, give, transfer or otherwise dispose of
the Shares or any interest therein, or make any offer or
attempt to do any of the foregoing, except pursuant to
registration of the Shares, as applicable, under the
Securities Act and all applicable State Securities Laws
or in a transaction which is exempt from the
registration provisions of the Securities Act and all
applicable State Securities Laws; (B) that the
certificate(s) for the Shares will bear a legend making
reference to the foregoing restrictions; and (C) that
the Company and any transfer agent for the Shares shall
not be required to give effect to any purported transfer
of such shares except upon compliance with the foregoing
restrictions.
(iv) The undersigned has not offered or sold any portion of
his Shares with others or of reselling or otherwise
disposing of any portion of his Shares 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.
(v) The undersigned acknowledges that neither the
Corporation nor any other person offered to sell the
Shares to it by means of any form of general
advertising, such as media advertising or seminars.
(vi) The undersigned acknowledges that the Seller has the
right in its sole and Absolute discretion to abandon
this private placement at any time prior to the
completion of the offering and to return the previously
paid subscription price of the Shares without interest
thereon, to the respective subscribers.
(vii) The undersigned has not used any person as a "Purchaser
Representative" within the meaning of the SEC Regulation
D to represent it in determining whether it should
purchase the Shares.
7. Conditions to Obligations of the Undersigned and the Company. The
obligations of the undersigned to purchase and pay for the number
of Shares specified herein and of the Company to sell the Shares
are subject to the satisfaction at or prior to the Closing of the
following conditions precedent: the representations and warranties
of the Company contained in Section 5 hereof and of the
undersigned contained in Section 6 hereof shall be true and
correct on and as of the Closing in all respects with the same
effect as though such representations and warranties had been made
on and as of the Closing.
8. Obligations Irrevocable. The obligations of the undersigned
hereunder shall be irrevocable, except with the consent of the
Company, until December 31, 2002.
9. Legend. Each certificate for Shares (sold pursuant to this
Agreement) will be imprinted with a legend in substantially the
following form:
"THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED OR
OFFERED FOR SALE OR TRANSFER UNLESS A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS WITH RESPECT TO
SUCH SECURITIES IS THEN IN EFFECT, OR IN THE OPINION OF THE COUNSEL,
SUCH REGISTRATION UNDER THE SECURITIES ACT AND OTHER APPLICABLE
SECURITIES LAWS IS NOT REQUIRED."
10. Brokers. Subscriber has not entered into any agreement to pay any
broker's or finder's fee to any Person with respect to this
Agreement or the transactions contemplated hereby.
11. Waiver, Amendment. Neither this Agreement nor any provisions
hereof shall be modified, changed, discharged or terminated except
by an instrument in writing, signed by the party against whom any
waiver, charge, discharge or termination is sought.
12. Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof
shall be assignable by either the Company or the undersigned
without the prior written consent of the other party.
13. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada.
14. Section and Other Headings. The section and other headings
contained in this agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which together shall be
deemed to be one and the same agreement.
16. 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:
(a) If to the Company, to it at the following address:
Universal Communication Systems, Inc.
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Attention: Chief Financial Officer
(b) If to the undersigned, to him at the following page hereto;
_____________________________
_____________________________
_____________________________
Or at such other address as either party shall have specified by
notice in writing to the other.
17. Binding Effect. The provisions of this Agreement shall be binding
upon and accrue to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns.
18. Survival. All representations, warranties and covenants contained
in this Agreement shall survive (i) the acceptance of the
subscription by the Company, (ii) changes in the transactions,
documents and instruments which are not material or which are to
the benefit of the undersigned, and (iii) the death or disability
of the undersigned.
19. Notification of Changes. The undersigned hereby covenants and
agrees to notify the Company upon the occurrence of any event
prior to the closing of the purchase of the Shares pursuant to
this Agreement which would cause any representation, warranty or
covenant of the undersigned contained in this Agreement to be
false or incorrect.
IN WITNESS THEREOF, the undersigned has executed this Subscription
Agreement this ________ day of ___________________ 20__.
____________________________________
Signature
____________________________________
Print Name
____________________________________
Number and Street
____________________________________
City, State and Zip
____________________________________
Subscriber's Social Security Number
or Tax Identification Number
____________________________________
Signature of Co-owner if applicable
If Joint Ownership, check one (all parties must sign above):
( ) Joint Tenants with Right of Survivorship ( ) Tenants in Common
( ) Community Property
If Fiduciary or Corporation, check one:
( ) Trust ( ) Estate ( ) Power of Attorney ( ) Corporation
UNIVERSAL COMMUNICATION SYSTEMS, INC.
By:___________________________________
Name: _________________________
Title:_________________________
Accepted as of ____________________________ _____
APPENDIX A
CONSIDERATION TO BE DELIVERED
Shares of Common Stock to be Acquired Amount to be paid
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__________ Shares of Common Stock at
______ per share _____________
APPENDIX B
ACCREDITED INVESTOR CERTIFICATE
The undersigned Investor hereby certifies that he is an Accredited
Investor as that term is defined in Regulation D adopted pursuant to the
Securities Act of 1933 (the "Act"). The specific category(s) of Accredited
Investor applicable to the undersigned is checked below.
_____ a. An individual whose individual net worth, or joint net worth
with that individual's spouse, exceeds $1,000,000 (including the
value of homes, home furnishings and personal automobiles);
_____ b. An individual who had an individual income in excess of
$200,000 in the previous two years or joint income with that
person's spouse in excess of $300,000 in each of those years and
who reasonably expects to reach the same income level in the
current year. For purposes of this offering, individual income
shall equal adjusted gross income, as reported in the investor's
federal income tax return, less any income attributable to a
spouse or to a property owned by the spouse, and as may be further
adjusted in accordance with the rules, regulations and releases of
the Commission;
_____ c. A bank as defined in Section 3 (a) (2) of the Securities Act
of 1933, as amended (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; an insurance company as defined in Section 2 (13) of the
Act; an investment company registered under the Investment Company
Act of 1940 (the "1940 Act") or a 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 (c) or (d) of the Small Business
Investment Act of 1958; or an employee benefit plan within the
meaning of Title I 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 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;
_____ d. Private business development company as defined in Section
202 (a) (22) of the Investment Advisers Act of 1940;
_____ e. An 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 Shares, with total assets in excess of
$5,000,000;
_____ f. An individual who is a director or executive officer of the
Company; or
_____ g. An entity in which all of the equity owners are accredited
investors as set forth above.
IN WITNESS WHEREOF, the undersigned has executed this Accredited
Investor Certificate this __________ day of ____________________, ____.
___________________________________
Signature
___________________________________
Printed Name