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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
ANTENNAS AMERICA, INC.
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(NAME OF THE ISSUER)
Common Stock, $0.005 par value per share
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(TITLE OF CLASS OF SECURITIES)
036727 105
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(CUSIP NUMBER)
Randall P. Marx
Antennas America, Inc.
4860 Robb Street 101
Wheat Ridge, Colorado 80833
(303) 421-4063
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(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
February 7, 2000
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(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see,
the Notes).
(Page 1 of 6 Pages)
(Continued on following pages)
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CUSIP NO. 036727 105 13D Page 2 of 6 Pages
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
HUDSON RIVER INVESTMENTS, INC.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
BRITISH VIRGIN ISLANDS
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NUMBER OF 7 SOLE VOTING POWER
SHARES 4,001,175
BENEFICIALLY
OWNED BY
REPORTING -----------------------------------------------------------------
PERSON 8 SHARED VOTING POWER
WITH 0
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9 SOLE DISPOSITIVE POWER
4,001,175
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,002,350- SEE ITEM 5
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.67% - SEE ITEM 5
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14 TYPE OF REPORTING PERSON CO
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* Based upon 119,898,467 shares of Common Stock issued and outstanding as
reported on the Issuer's Registration Statement filed on Form S-B2 which
was filed on February 8, 2000.
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ITEM 1. SECURITY AND THE ISSUER
(a) TITLE OF SECURITY:
Common Stock, $0.005 par value per share.
(b) NAME OF THE ISSUER:
Antennas America, Inc., a Utah corporation.
(c) THE ISSUER'S PRINCIPAL EXECUTIVE OFFICE:
One Robb Street 101
Wheat Ridge, Colorado 80033
ITEM 2. IDENTITY AND BACKGROUND
(a) This statement is being filed on behalf of Hudson River
Investments, Inc. ("Hudson").
(b)-(c) c/o Mossack Fonseca Co (BVI) Ltd. Skelton Building,
Main Street, P.O. Box 3136, Road Town, Tortola, British Virgin Islands
(d)-(e) During the last five years, there have been no criminal
proceedings against Hudson.
During the last five years, Hudson has not been a party to any
civil proceeding of a judicial or administrative body of competent
jurisdiction resulting in a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with
respect to such laws.
(f) Hudson was formed under the laws of the British Virgin
Islands.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Pursuant to agreements among Hudson and the Issuer, Hudson agreed
to acquire an aggregate of 4,001,174 Units at price of $0.0525 per
Unit. Each Unit consisted of one share of Common Stock and on Common
Stock purchase warrant to purchase one share of Common Stock for
$0.175 per share. The aggregate purchase price was $210,061.68. The
Units were purchased in separate transactions on September 29, 1999
(3,800,000 Units) and on February 7, 2000 (201,175 Units). The second
purchase represented the conclusion of the private placement for the
Units.
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The funds for the acquisition of the Units were personal funds
of Hudson.
ITEM 4. PURPOSE OF THE TRANSACTION
Hudson acquired Units of the Issuer for general investment
purposes.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a)-(b) Based on the Issuer's Registration Statement on Form
S-B2, there were 119,898,467 shares of Common Stock outstanding. The
following summarizes the shares of the Issuer beneficially owned by
Hudson.
<TABLE>
<CAPTION>
NUMBER OF SHARES OF
NUMBER OF SHARES OF STOCK BENEFICIALLY PERCENTAGE OF CLASS
INVESTOR STOCK OWNED BENEFICIALLY OWNED
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Hudson 4,001,175 8,002,350(i) 6.67%
</TABLE>
(i) Includes warrants to acquire 4,001,175 shares of Common Stock
at $0.175 per share.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
In connection with the sale of the Units, Hudson was granted
certain registration rights relating to the Units.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
99.1 Subscription Agreement dated September 29, 1999, between
Hudson and the Issuer.
99.2 Subscription Agreement dated February 7, 2000, between
Hudson and the Issuer.
99.3 Form of Warrant.
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SIGNATURES
After reasonably inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
February 9, 2000
Hudson River Investments, Inc.
By: /s/ Oliver Dunant
-------------------------
Oliver Dunant, President
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EXHIBIT INDEX
EXHIBIT DESCRIPTION OF DOCUMENT
99.1 Subscription Agreement dated September 29, 1999, between Hudson River
Investments, Inc. and Antennas America, Inc.
99.2 Subscription Agreement dated February 7, 2000, between Hudson River
Investments, Inc., and Antennas America, Inc.
99.3 Form of Warrant.
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EXHIBIT 99.1
SUBSCRIPTION AND REGISTRATION RIGHTS AGREEMENT
Antennas America, Inc.
4860 Robb Street, Suite 101
Wheat Ridge, Colorado 80033
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 3,800,000
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
2
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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:
-------------------------------------
- ------------------------------------------
Exact Name in Which Title is to be Held
- ------------------------------------------ ------------------------------
Signature Signature of Co-Owner
- ------------------------------------------ ------------------------------
Print Name Print Name of Co-Owner
- ------------------------------------------ ------------------------------
Social Security Number or Tax Social Security Number or Tax
- --------------------------------------------------------------------------------
Address
- --------------------------------------------------------------------------------
City, State, Postal or Zip Code, Country
STATE OF )
----------------
) ss.
COUNTY OF )
---------------
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:________________________
- ------------------------------------------ ------------------------------
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
------ -------
This subscription is accepted by Antennas America, Inc. on this ______ day
of ________, 1999.
ANTENNAS AMERICA, INC.
By:
--------------------------------------------
Randall P. Marx, Chief Executive Officer
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SIGNATURE PAGE FOR ENTITIES
Please complete the following if the subscriber is an entity:
DATE: Sept. 29, 1999
-------------------------
HUDSON RIVER INVESTMENTS, INC.
- ---------------------------------
Printed Name of Entity
By: [SIG]
------------------------------
Signature
H. NEMAZEE Power of Attorney
- ---------------------------------
Printed Name and Title
720 5th AVE, 9th FLOOR
- --------------------------------------------------------------------------------
Address
N.Y., N.Y. 10019 ATT: H. NEMAZEE
- --------------------------------------------------------------------------------
City, State, Postal or Zip Code, Country
- -------------------------------
Tax Identification Number
STATE OF NEW YORK )
-------------
) ss.
COUNTY OF NEW YORK )
------------
On this 29th day of September 1999, before me personally appeared
Hassan Nemazee, 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.
Craig Miller
Notary Public, State of New York
No. 01M16020177
Qualified in New York County
My commission expires: 2/22/01 Commission Expires February 22, 2001
----------
[SIG] 720 Fifth Ave, New York, NY 10019
- -------------------------------- -----------------------------------
Notary Public Address
This subscription is accepted by Antennas America, Inc. on this 17 day
of DEC. 1999.
ANTENNAS AMERICA,INC.
By: [SIG]
------------------------------------------
Randall P. Marx, Chief Executive Officer
9
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EXHIBIT 99.2
SUBSCRIPTION AND REGISTRATION RIGHTS AGREEMENT
Antennas America, Inc.
4860 Robb Street, Suite 101
Wheat Ridge, Colorado 80033
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;
<PAGE> 2
(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
2
<PAGE> 3
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.
3
<PAGE> 4
(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
4
<PAGE> 5
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
5
<PAGE> 6
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.
6
<PAGE> 7
(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)
7
<PAGE> 8
SIGNATURE PAGE FOR INDIVIDUALS
Please complete the following:
Date:
-------------------------------------
- ------------------------------------------
Exact Name in Which Title is to be Held
- ------------------------------------------ ------------------------------
Signature Signature of Co-Owner
- ------------------------------------------ ------------------------------
Print Name Print Name of Co-Owner
- ------------------------------------------ ------------------------------
Social Security Number or Tax Social Security Number or Tax
- --------------------------------------------------------------------------------
Address
- --------------------------------------------------------------------------------
City, State, Postal or Zip Code, Country
STATE OF )
----------------
) ss.
COUNTY OF )
---------------
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:________________________
- ------------------------------------------ ------------------------------
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
------ -------
This subscription is accepted by Antennas America, Inc. on this ______ day
of ________, 1999.
ANTENNAS AMERICA, INC.
By:
--------------------------------------------
Randall P. Marx, Chief Executive Officer
8
<PAGE> 9
SIGNATURE PAGE FOR ENTITIES
Please complete the following if the subscriber is an entity:
DATE: 2/7/00
-------------------------
Hudson River Investments, Inc.
- ---------------------------------
Printed Name of Entity
By: [SIG]
------------------------------
Signature
- ---------------------------------
Printed Name and Title
720 Fifth Ave, 9th Floor N.Y. 10019 N.Y
- --------------------------------------------------------------------------------
Address
- --------------------------------------------------------------------------------
City, State, Postal or Zip Code, Country
--
- -------------------------------
Tax Identification Number
STATE OF )
-------------
) ss.
COUNTY OF )
------------
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:
----------------------
- -------------------------------- -----------------------------------
Notary Public Address
This subscription is accepted by Antennas America, Inc. on this day
of 1999.
ANTENNAS AMERICA, INC.
By:
------------------------------------------
Randall P. Marx, Chief Executive Officer
9
<PAGE> 1
Exhibit D
(Attached To And Made A Part Of
The Confidential Private Placement Memorandum
Dated September 8, 1999 Of
Antennas America, Inc.)
Form Of Stock Warrant Agreement
THE SECURITIES REPRESENTED BY THIS DOCUMENT HAVE NOT BEEN REGISTERED WITH THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), AND ARE "RESTRICTED SECURITIES" AS THAT
TERM IS DEFINED IN RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE 1933 ACT.
ANTENNAS AMERICA, INC.
STOCK WARRANT AGREEMENT
THIS STOCK WARRANT AGREEMENT (the "Agreement") is made and entered into as
of the ____ day of _______ 1999 by and between Antennas America, Inc., a Utah
corporation (the "Company"), and the undersigned (the "Holder").
WITNESSETH:
WHEREAS, pursuant to the Subscription And Registration Rights Agreement
between the Company and Holder (the "Subscription Agreement") entered into in
connection with the Company's private offering of Units consisting of shares
(the "Placement Shares") of Common Stock and Common Stock purchase warrants
pursuant to the Confidential Private Placement Memorandum (the "Memorandum")
dated September 8, 1999, the Company agreed to issue to Holder warrants to
purchase shares of tbe $.0005 par value common stock of the Company
("Common Stock"), said warrants to be for the number of shares, at the price per
share and on the terms set forth in this Agreement; and
WHEREAS, the Holder desires to receive a warrant on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Grant Of Warrant. The Company hereby grants to the Holder the right
and warrant (the "Warrant") to purchase all or any part of an aggregate of ____
shares of the authorized and unissued $.005 par value common stock of the
Company (the "Warrant Shares") pursuant to the terms and conditions set forth in
this Agreement.
D-1
<PAGE> 2
2. Warrant Price. At any time when shares are to be purchased pursuant to
the Warrant, the purchase price for each Warrant Share shall be $.175 (the
"Warrant Price"), subject to adjustment as provided in this Agreement.
3. Exercise Period. The period for the exercise of the Warrant shall
commence immediately and, unless terminated earlier as provided in this
Agreement, shall terminate at 5:00 p.m., Denver, Colorado time, upon the earlier
to occur of (a) one year after the date that a registration statement (the
"Registration Statement") registering the transfer of the Warrant Shares and the
Placement Shares is declared effective by the U.S. Securities And Exchange
Commission, and (b) the fifth anniversary of the date of this Agreement.
4. Exercise Of Warrant.
(a) The Warrant may be exercised in whole or in part by delivering to
the Treasurer or President of the Company at the address of the Company's
principal office (i) a Notice And Agreement Of Exercise Of Warrant,
substantially in the form attached hereto as Exhibit A, specifying the number of
Warrant Shares with respect to which the Warrant is exercised, and (ii) full
payment of the Warrant Price for such shares. Payment shall be made by certified
check or cleared funds. The Warrant may not be exercised in part unless the
purchase price for the Warrant Shares purchased is at least $1,000 or unless the
entire remaining portion of the Warrant is being exercised.
(b) Promptly upon receipt of the Notice And Agreement Of Exercise Of
Warrant together with the full payment of the Warrant Price, the Company shall
deliver to the Holder a properly executed certificate or certificates
representing the Warrant Shares being purchased.
5. Right To Repurchase Warrant. At any time that the Registration
Statement is effective, and prior to the exercise or expiration of the Warrant,
the Company may repurchase the Warrant, at a repurchase price of $.001 per share
of Common Stock underlying the Warrant being repurchased (the "Repurchase
Price"), if the Weighted Average Trading Price, as defined below, of a share of
Common Stock for 20 of the 30 consecutive business days prior to the date of the
Repurchase Notice, as defined below, equals or exceeds $.2275 per share. The
repurchase procedure shall be as set forth in this Section 5.
(a) Repurchase Procedure. At least 30 days but not more than 60 days
prior to a date set for repurchase of all or part of the Warrant (a "Repurchase
Date"), the Company shall mail a written notice of such repurchase (a
"Repurchase Notice"), postage prepaid, to the Holder. The Repurchase Notice
shall state (1) the number of shares of Common Stock underlying the Warrant to
be redeemed, (2) the Repurchase Date and the total repurchase price, (3) that
the Holder must surrender to the Company, in the manner and at the place
designated by the Company, the Holder's Stock Warrant Agreement representing the
Warrant, and (4) stating the basis upon which the Company is entitled to redeem
the Warrant.
(b) Notice Of Repurchase. The Repurchase Notice shall notify the
Holder that on or before the Repurchase Date, the Holder shall surrender the
Holder's Stock Warrant Agreement representing the Warrant to the Company, in the
manner and at the place designated in the notice from the Company, and thereupon
the Repurchase Price of such Warrant shall be payable to the order of the person
whose name appears on such certificate or certificates as the owner thereof, and
each surrendered Stock Warrant Agreement shall be cancelled. Such Repurchase
Notice shall also state the current Exercise Price and the date on which the
right to exercise the Warrant or portion thereof for shares of Common Stock will
expire.
D-2
<PAGE> 3
For purposes of this Agreement, "Weighted Average Trading Price" shall
mean the average trading price determined by multiplying the number of shares
involved in each individual trade during the period of determination by the sale
price for that trade and dividing the sum of all those amounts by the total
number of shares traded during the relevant period of determination.
At any time prior to the Repurchase Date, even after a Repurchase
Notice has been sent, the Holder is entitled to exercise the Warrant pursuant to
the other provisions of this document.
6. Withholding Taxes. The Company may take such steps as it deems necessary
or appropriate for the withholding of any taxes which the Company is required by
any law or regulation or any governmental authority, whether federal, state or
local, domestic or foreign, to withhold in connection with the Warrants
including, but not limited to, the withholding of all or any portion of any
payment owed by the Company to the Holder or the withholding of issuance of
Warrant Shares to be issued upon the exercise of the Warrant.
7. Securities Laws Requirements. Pursuant to, and subject to the conditions
of, Section 3 of the Subscription Agreement, the Company has agreed to register
under the Securities Act of 1933, as amended (the "1933 Act"), the sale of the
Warrant Shares by Holder. The Company will file with the Securities And Exchange
Commission (the "SEC") a registration statement (the "Registration Statement")
under the 1993 Act covering the sale of the Warrant Shares by the Holder. At the
time that the Registration Statement is declared effective by the SEC, Holder
will be able to freely sell the Warrant Shares so that the purchaser of the
Warrant Shares receives certificates representing the Warrant Shares, without a
restrictive legend; that will be freely transferable. Until the Registration
Statement is declared effective by the SEC, the Warrant Shares will be
"restricted securities" as that term is defined in Rule 144 under the 1933 Act.
Pursuant to this Agreement, and pursuant to the terms of the Notice And
Agreement Of Exercise Of Warrant (Exhibit A) that shall be delivered to the
Company upon each exercise of the Warrant, the Holder does hereby, and shall
upon each exercise of the Warrant, acknowledge, represent, warrant and agree as
follows:
(a) Holder is acquiring the Warrant Shares for investment purposes
only and the Warrant Shares that Holder is acquiring will be held by Holder
without sale, transfer or other disposition for an indefinite period unless the
Registration Statement covering the transfer of those securities is subsequently
is declared effective or unless exemptions from registration are available;
(b) Holder's overall commitment to investments that are not readily
marketable is not disproportionate to Holder's net worth and Holder's investment
in the Warrant and the Warrant Shares will not cause such overall commitments to
become excessive;
(c) Holder's financial condition is such that Holder is under no
present or contemplated future need to dispose of any portion of the Warrant
Shares to satisfy any existing or contemplated undertaking, need or
indebtedness;
(d) Holder has sufficient knowledge and experience in business and
financial matters to evaluate, and Holder has evaluated), the merits and risks
of an investment in the Warrant Shares;
(e) The address set forth in this Agreement is Holder's true and
correct residence, and Holder has no present intention of becoming a resident of
any other state or jurisdiction;
D-3
<PAGE> 4
(f) Holder confirms that all documents, records and books pertaining to
an investment in the Warrant Shares have been made available or delivered to
Holder. Without limiting the foregoing, Holder has received and reviewed the
Company's Annual Report on Form 10-KSB for the year ended December 31, 1998 and
Quarterly Reports on Form l0-QSB for each of the quarters ended March 31, 1999
and June 30, 1990 and each of the Company's Press Releases since December 31,
1998, and all other periodic reports filed by the Company with the Securities
And Exchange Commission after the Form 1O-Q for the quarter ended June 30, 1999
and on or before the date that Holder signs this Agreement, and Holder has had
the opportunity to discuss the acquisition of the Warrant Shares with the
Company, and Holder has obtained or been given access to all information
concerning the Company that Holder has requested;
(g) Holder has had the opportunity to ask questions of, and receive
the answers from, the Company concerning the terms of the investment in the
Warrant and the Warrant Shares and to receive additional information necessary
to verify the accuracy of the information delivered to Holder, to the extent
that the Company possesses such information or can acquire it without
unreasonable effort or expense;
(h) Holder understands that the Company will register the Holder's
sale of the Warrant Shares under the 1933 Act as described in the first
paragraph of this Section 7; Holder also understands that the issuance of the
Warrant Shares issuable upon exercise of the Warrant will not be registered
under the 1933 Act or any state securities laws and that, because the issuance
of the Warrant Shares will not be registered, the Warrant Shares will be issued
in reliance upon an exemption that is available only if Holder acquires the
Warrant Shares for investment and not with a view to distribution; Holder is
familiar with the phrase "acquired for investment and not with a view to
distribution" as it relates to the 1933 Act and the special meaning given to
such term in various releases of the SEC; and no federal or state agency has
made any finding or determination as to the fairness of this investment or any
recommendation or endorsement of the sale of the Warrant Shares;
(i) The Warrant Shares that Holder is acquiring will be solely for
Holder's own account, for investment, and are not being purchased with, a view
to or for the resale, distribution, subdivision or fractionalization thereof.
Holder has no agreement or arrangement for any such resale, distribution,
subdivision or fractionalization thereof; and
(j) Holder acknowledges and is aware of the following:
(1) The Warrant Shares constitute a speculative investment and
involve a high degree of risk of loss by Holder of Holder's total investment in
the Warrant Shares.
(2) Until the Registration Statement described in the first
paragraph of this Section 7 is declared effective, there are substantial
restrictions on the transferability of the Warrant Shares. The Warrant Shares
cannot be transferred, pledged, hypothecated, sold or otherwise disposed of
unless they are registered under the 1933 Act or an exemption from such
registration is available and established to the satisfaction of the Company.
Except as provided in Section 3 of the Subscription Agreement, the Company is
under no obligation to comply, or to assist the Holder in complying, with any
exemption from such registration requirement, including supplying the Holder
with any information necessary to permit routine sales of the Warrant Shares
under Rule 144 of the Securities And Exchange Commission. Holder also
understands that, with respect to Rule 144, routine sales of securities made in
reliance upon such Rule can be made only in limited amounts in accordance with
the terms and conditions
D-4
<PAGE> 5
of the Rule, and that in cases in which the Rule is inapplicable, compliance
with either Regulation A or another disclosure exemption under the 1933 Act
will be required. The Holder has no rights to require that the Warrant Shares
be registered except as set forth in Section 3 of the Subscription Agreement.
There is no right of presentment of the Warrant Shares and there is no
obligation by the Company to repurchase any of the Warrant Shares. Accordingly,
Holder may have to hold the Warrant Shares indefinitely and it may not be
possible for Holder to liquidate Holder's investment in the Company.
(3) Each certificate issued representing the Warrant Shares
issued to Holder shall be imprinted with a legend that sets forth a description
of the restrictions on transferability of those securities, which legend will
read substantially as follows:
"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)."
The restrictions described in this Section 7 or notice thereof may be
placed on the certificates representing the Warrant Shares purchased pursuant
to the Warrant, and the Company may refuse to issue the certificates or to
transfer the shares on its books unless it is satisfied that no violation of
such restrictions will occur.
8. Adjustment By Stock Split, Stock Dividend, Etc. If at any time the
Company increases or decreases the number of its outstanding shares of common
stock, or changes in any way the rights and privileges of such shares, by means
of the payment of a stock dividend or the making of any other distribution on
such shares payable in its common stock, or through a stock split or subdivision
of shares, or a consolidation or combination of shares, or through a
reclassification or recapitalization involving its common stock, the numbers,
rights and privileges of the shares of common stock included in the Warrant
shall be increased, decreased or changed in like manner as if such shares had
been issued and outstanding, fully paid and nonassessable at the time of such
occurrence.
9. Merger Or Consolidation.
(a) Upon the occurrence of any of the following events, and subject to
the 30-day period provided for in Subparagraph 9(b), the Warrant shall
automatically terminate and be of no further force or effect whatever if and
only if the notice described in Subparagraph 9(b) has been given to Holder: (i)
the merger or consolidation of the Company with one or more other corporations,
regardless of which entity survives the transaction; (ii) the dissolution or
liquidation of the Company; (iii) the appointment of a receiver for all, or
substantially all, of the Company's assets or business; (iv) the appointment of
a trustee for the Company after a petition has been filed for the Company's
reorganization under applicable statutes; or (v) the sale, lease or exchange of
all, or substantially all, of the Company's assets and business.
(b) If any of the events described in clauses (i), (ii), (iii), (iv),
or (v) of Subparagraph 9(a) occurs, then the Company, at the Company's option,
may cause the Warrant to terminate and be of no further force or effect whatever
if the Company gives written notice to the Holder at least 30 days prior
D-5
<PAGE> 6
to the occurrence of any such event. After receipt of such notice, the Holder
may at any time before the occurrence of the event requiring the giving of
notice exercise the unexercised portion of the Warrant. Notwithstanding the
foregoing, if the notice given under this Subparagraph 9(b) is given fewer than
30 days prior to occurrence of the event, then the Warrant shall not terminate
pursuant to Subparagraph 9(a), and may be exercised, until 30 days after the
date on which the notice was given. If no notice shall be given with respect to
a transaction described in clauses (i), (ii), or (v) of Subparagraph 9(a), the
provisions of Subparagraph 9(a) shall not apply and the Warrant shall not
terminate until the termination is pursuant to Subparagraph 9(a) or any other
applicable provision of this Agreement. Notice pursuant to this Subparagraph
9(b) shall be given pursuant to the provisions of Paragraph 12 of this
Agreement.
(c) Notwithstanding the foregoing subparagraphs (a) and (b) of this
Section 9, the provisions of subparagraphs (a) and (b) of this Section 9 shall
not become effective until the Registration Statement described in Section 7
becomes effective with the Securities And Exchange Commission. If that does not
occur on or before December 31, 1999, the provisions of subparagraphs (a) and
(b) of this Section 9 shall terminate.
10. Privilege Of Ownership. Holder shall not have any of the rights of a
stockholder with respect to the shares covered by the Warrant except to the
extent that one or more certificates for such shares shall be delivered to him
upon exercise of the warrant.
11. Relationship To Engagement. Nothing contained in this Agreement (i)
shall confer upon the Holder any right with respect to continuance of Holder's
engagement by, or affiliation with, or relationship to, the Company, or (ii)
shall interfere in any way with the right of the Company at any time to
terminate the Holder's engagement by, position or affiliation with, or
relationship to, the Company.
12. Notices. All notices, requests, demands, directions and other
communications ("Notices") concerning this Agreement shall be in writing and
shall be mailed or delivered personally or sent by telecopier or facsimile to
the applicable party at the address of such party set forth below in this
Section 12. When mailed, each such Notice shall be sent by first class,
certified mail, return receipt requested, enclosed in a postage prepaid wrapper,
and shall be effective on the fifth business day after it has been deposited in
the mail. When delivered personally, each such Notice shall be effective when
delivered to the address for the respective party set forth in this Section 12,
provided that it is delivered on a business day and further provided that it is
delivered prior to 5:00 p.m., local time of the party to whom the notice is
being delivered, on that business day; otherwise, each such Notice shall be
effective on the first business day occurring after the Notice is delivered.
When sent by telecopier or facsimile, each such Notice shall be effective on the
day on which it is sent provided that it is sent on a business day and further
provided that it is sent prior to 5:00 p.m., local time of the party to whom the
Notice is being sent, on that business day; otherwise, each such Notice shall be
effective on the first business day occurring after the Notice is sent. Each
such Notice shall be addressed to the party to be notified as shown below:
(a) if to the Company: Antennas America, Inc.
4860 Robb Street, Suite 101
Wheat Ridge, CO 80033
Facsimile No. (303) 484-5085
Attention: Mr. Randall P. Marx
D-6
<PAGE> 7
(b) if to the Holder: At the address set forth following
Holder's signature below.
Either party may change its respective address for purposes of this Section
12 by giving the other party Notice of the new address in the manner set forth
above.
13. General Provisions. This instrument (a) contains the entire agreement
between the parties, (b) may not be amended nor may any rights hereunder be
waived except by an instrument in writing signed by the party sought to be
charged with such amendment or waiver, (c) shall be construed in accordance
with, and governed by the laws of Colorado, and (d) shall be binding upon and
shall inure to the benefit of the parties and their respective personal
representatives and assigns, except as above set forth. All pronouns contained
herein and any variations thereof shall be deemed to refer to the masculine,
feminine or neuter, singular or plural as the identity of the parties hereto may
require.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
set forth below.
ANTENNAS AMERICA, INC.
Date: By:
----------------- ------------------------------
Randall P. Marx
Chief Executive Officer
HOLDER
---------------------------------
Entity Name, if applicable
D-7
<PAGE> 8
Date: By: [sig]
---------------------- -------------------------------
Signature
[sig]
----------------------------------
Printed Name and Title
----------------------------------
Address
----------------------------------
----------------------------------
Facsimile Number
*****
<PAGE> 9
EXHIBIT A
(To Antennas America, Inc.
Stock Warrant Agreement)
ANTENNAS AMERICA, INC.
NOTICE AND AGREEMENT OF EXERCISE OF WARRANT
The undersigned (the "Holder") hereby exercises Holder's Antennas America,
Inc. stock Warrant pursuant to the Stock Warrant Agreement as to shares
(collectively, the "Warrant Shares") of the $.0005 par value common stock of
Antennas America, Inc. (the "Company"). The total exercise price for these
Warrant Shares is $_____.
Enclosed is the payment specified in Section 3 of the Stock Warrant
Agreement.
Pursuant to Section 3 of the Subscription And Registration Rights Agreement
(the "Subscription Agreement") between the Holder and the Company, the Company
has agreed to register under the Securities Act of 1933, as amended (the "1933
Act"), the sale of the Warrant Shares by Holder. The Company will file with the
Securities And Exchange Commission (the "SEC") a registration statement (the
"Registration Statement") under the 1993 Act covering the sale the Warrant
Shares. At the time that the Registration Statement is declared effective by the
SEC, Holder will be able to freely sell the Warrant Shares so that the purchaser
of the Warrant Shares receives certificates representing the Warrant Shares,
without a restrictive legend, that will be freely transferable. Until the
Registration Statement is declared effective by the SEC, the Warrant Shares will
be "restricted securities" as that term is defined in Rule 144 under the 1933
Act. Holder hereby acknowledges, represents, warrants and agrees, to and with
the Company as follows:
(a) Holder is acquiring the Warrant Shares for investment purposes only
and the Warrant Shares that Holder is acquiring will be held by Holder without
sale, transfer or other disposition for an indefinite period unless the
Registration Statement covering the transfer of those securities subsequently is
declared effective or unless exemptions from registration are available;
(b) Holder's overall commitment to investments that are not readily
marketable is not disproportionate to Holder's net worth and Holder's investment
in the Warrant Shares will not cause such overall commitments to become
excessive;
(c) Holder's financial condition is such that Holder is under no present
or contemplated future need to dispose of any portion of the Warrant Shares to
satisfy any existing or contemplated undertaking, need or indebtedness;
(d) Holder has sufficient knowledge and experience in business and
financial matters to evaluate, and Holder has evaluated, the merits and risks of
an investment in the Warrant Shares.
(e) The address set forth in this Agreement is Holder's true and correct
residence, and Holder has no present intention of becoming a resident of any
other state or jurisdiction;
<PAGE> 10
(f) Holder confirms that all documents, records and books pertaining to an
investment in the Warrant Shares that have been requested by Holder have been
made available or delivered to Holder. Without limiting the foregoing, Holder
has received and reviewed the Company's Annual Report on Form 10-KSB for the
year ended December 31, 1998 and Quarterly Reports on Form 10-QSB for each of
the quarters ended March 31, 1999 and June 30, 1999, and each of the Company's
press releases since December 31, 1998, and all other periodic reports filed by
the Company with the SEC after the Company's Quarterly Report on Form 10-QSB for
the quarter ended June 30, 1999, and Holder has had the opportunity to discuss
the acquisition of the Warrant Shares with the Company, and Holder has obtained
or been given access to all information concerning the Company that Holder has
requested;
(g) Holder has had the opportunity to ask questions of, and receive the
answers from, the Company concerning the terms of the investment in the Warrant
Shares and to receive additional information necessary to verify the accuracy of
the information delivered to Holder, to the extent that the Company possesses
such information or can acquire it without unreasonable effort or expense;
(h) The Holder understands that the Company will register the Holder's
sale of the Warrant Shares under the 1933 Act as described above. Holder also
understands that the issuance of the Warrant Shares to the Holder will not be
registered, under the 1933 Act or any state securities laws and that, because
the issuance of the Warrant Shares to the Holder will not be registered, the
Warrant Shares will be issued in reliance upon an exemption that is available
only if Holder acquires the Warrant Shares for investment and not with a
view to distribution. Holder is familiar with the phrase "acquired for
investment and not with a view to distribution" as it relates to the 1933 Act
and the special meaning given to such term in various releases of the SEC; and
no federal or state agency has made any finding or determination as to the
fairness of this investment or any recommendation or endorsement of the sale of
the Warrant Shares;
(i) The Warrant Shares that Holder is acquiring will be solely for
Holder's own account, for investment, and are not being purchased with a view
to or for the resale, distribution, subdivision or fractionalization thereof.
Holder has no agreement or arrangement for any such resale, distribution,
subdivision or fractionalization thereof; and
(j) Holder acknowledges and is aware of the following:
(1) The Warrant Shares constitute a speculative investment and involve
a high degree of risk or loss by Holder of Holder's total investment in the
Warrant Shares.
(2) Until the Registration Statement described above is declared
effective, there are substantial restrictions on the transferability of the
Warrant Shares. The Warrant Shares cannot be transferred, pledged, hypothecated,
sold or otherwise disposed of unless they are registered under the 1933 Act or
an exemption from such registration is available and established to the
satisfaction of the Company. Except as provided in Section 3 of the Subscription
Agreement, the Company is under no obligation to comply, or to assist the
Holder in complying with any exemption from such registration requirement
including supplying the Holder with any information necessary to permit routine
sales of the Warrant Shares under Rule 144 of the Securities And Exchange
Commission. Holder also understands that, with respect to Rule 144, routine
sales of securities made in reliance upon such Rule can be made only in limited
amounts in accordance with the terms and conditions of the Rule, and that in
cases which the Rule is inapplicable, compliance with either Regulation A or
another disclosure exemption
<PAGE> 11
under the 1933 Act will be required. The Holder has no rights to require
that the transfer of the Warrant Shares be registered except as set forth in
Section 3 of the Subscription Agreement. There is no right of presentment of the
Warrant Shares and there is no obligation by the Company to repurchase any of
the Warrant Shares. Accordingly, Holder may have to hold the Warrant Shares
indefinitely and it may not be possible for Holder to liquidate Holder's
investment in the Company.
(3) Each certificate issued representing the Warrant Shares issued to
Holder shall be imprinted with a legend that sets forth a description of the
restrictions on transferability of those securities, which legend will read
substantially as follows:
"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)."
The number of Warrant Shares specified above are to be issued in the name
or names set forth below in the left-hand column.
HOLDER:
- --------------------------------------------------
Name of Entity, if applicable
By:
------------------------------------ -------------------------
Signature Date
- -----------------------------------------------
Printed Name and Title
