Exhibit 10.1
SUBSCRIPTION AGREEMENT
(Smith Micro Software, Inc.)
Smith Micro Software, Inc.
51 Columbia
Aliso Viejo, CA 92656
Ladies and Gentlemen:
The undersigned (the "Investor") hereby confirms its agreement with Smith Micro
Software, Inc., a Delaware corporation (the "Company"), as follows:
1.This Subscription Agreement, including the Terms and Conditions for Purchase
of Shares attached hereto as Annex I (collectively, this "Agreement"), is made
as of the latest date set forth on the signature page hereto between the Company
and the Investor.
2.The Company has authorized the sale and issuance to certain investors of up to
an aggregate of 2,400,000 shares (the "Shares") of its common stock, par value
$0.001 per share (the "Common Stock"), for a purchase price of $1.05 per Share
(the "Purchase Price").
3.The offering and sale of the Shares (the "Offering") are being made pursuant
to (a) an effective Registration Statement on Form S-3 (File No. 333-215786)
(the "Registration Statement") filed by the Company with the Securities and
Exchange Commission (the "Commission"), including the prospectus contained
therein (the "Base Prospectus"), (b) if applicable, certain "free writing
prospectuses" (as that term is defined in Rule 405 under the Securities Act of
1933, as amended (the "Act")), that have been or will be filed by the Company
with the Commission and delivered to the Investor on or prior to the date
hereof
(the "Issuer Free Writing Prospectus"), containing certain supplemental
information regarding the Shares, the terms of the Offering and the Company and
(c) a prospectus supplement (the "Prospectus Supplement" and, together with the
Base Prospectus, the "Prospectus") containing certain supplemental information
regarding the Shares and terms of the Offering that has been or will be filed
with the Commission and delivered to the Investor (or made available to the
Investor by the filing by the Company of an electronic version thereof with the
Commission) prior to execution of this Agreement by the Investor.
4.The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor the Shares set forth
below for the aggregate purchase price set forth below.
The Shares shall be
purchased pursuant to the Terms and Conditions for Purchase of Shares attached
hereto as Annex I and incorporated herein by this reference as if fully set
forth herein.
The Investor acknowledges that the Offering is not being
underwritten by either of the Placement Agents (the "Placement Agent") named in
the Prospectus Supplement and that there is no minimum offering amount.
5.The manner of settlement of the Shares purchased by the Investor shall be as
follows:
A.The Shares shall be delivered by crediting the account of the Investor's prime
broker (as specified by such Investor on Exhibit A annexed hereto) with the
Depository
1
Exhibit 10.1
Trust Company ("DTC") through its Deposit/Withdrawal At Custodian ("DWAC")
system, whereby Investor's prime broker shall initiate a DWAC transaction on the
Closing Date (as defined in Annex I) using its DTC participant identification
number, and released by Computershare