EXHIBIT 10.1
SUBSCRIPTION AGREEMENT
Metropolitan Health Networks, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
The undersigned is writing to advise you of the following terms and
conditions under which the undersigned hereby offers to subscribe for shares of
common stock (the "Common Stock") of Metropolitan Health Networks. Inc. (the
"Company"). The purchase price of each share of Common Stock is $0.60.
The Company is offering a minimum of 3,300,000 shares of Common Stock
($1,980,000) on a "best efforts, all or none" basis (the "Minimum Offering"),
and the remaining 1,700,000 shares of Common Stock ($1,020,000) on a "best
efforts" basis. Proceeds from the offering will be placed in an escrow account
maintained by Lament & Neiman, P.A. (the "Escrow Agent"), and shall not be
available for use by the Company until such time as (i) the Company has received
subscriptions for shares representing at least the Minimum Offering, and (ii)
the Company has reached a full settlement of the Company's monetary obligations
to the Internal Revenue Service ("IRS") for unpaid payroll taxes, related
penalties and interest (the "IRS Obligations"). In the event both of the
foregoing conditions are not met by February 28, 2004, all subscription proceeds
that have been received by the Company at that time will be returned to the
investors without deduction or interest, unless that deadline is extended by the
mutual agreement of the Company and investors that have submitted subscriptions
covering at least the Minimum Offering.
The Company has agreed to file a registration statement with the
Securities and Exchange Commission within 90 days of the initial closing with
respect to the Minimum Offering covering the shares of Common Stock issued in
the offering, and to use its best efforts to have such registration statement
declared effective.
The Company is offering the Common Stock for sale only to persons who are
"accredited investors" as that term is defined in Rule 501 (a) under Regulation
D as promulgated under the Securities Act of 1933, as amended, and to entities
that are "qualified institutional buyers" as that term is defined under the
Securities Act of 1933, as amended. Each investor will be required to complete
either the Purchaser Questionnaire (if a person) or the Entity Questionnaire (if
an entity) provided herewith.
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1. Subscription.
Subject to the terms and conditions hereinafter set forth in this
Subscription Agreement, the undersigned hereby offers to purchase_________shares
of Common Stock.
If the Offer is accepted, the shares of Common Stock shall be paid for by
the investor by the delivery of $0.60 per share of Common Stock for which the
investor has subscribed (total of $____________), by cash, check or money order
payable to the order of Xxxxxx & Xxxxxx, P.A. Trust Account or by wire transfer
to a trust account maintained by Xxxxxx & Neiman, P.A., either (i)
contemporaneously herewith, or (ii) within five (5) business days of receipt by
the investor of written notice from the Company that terms of acceptable
settlement of the IRS Obligations have been reached with the IRS together with
documentation from the IRS that a settlement has been reached or an opinion from
the Company's outside counsel that such an agreement has been reached. Payment
made pursuant to (ii) above must be made by certified check or wire transfer
only.
2. Conditions to Offer.
The offering is made subject to the following conditions: (i) that the
Company shall have the right to accept or reject this Offer, in whole or in
part, for any reason whatsoever; and (ii) that the undersigned agrees to comply
with the terms of this Subscription Agreement and to execute and deliver any and
all further documents necessary to complete the transaction.
Acceptance of this Offer shall be deemed given by the countersigning of
this Subscription Agreement on behalf of the Company.
3. Representations and Warranties of the Undersigned.
The undersigned, in order to induce the Company to accept this Offer,
hereby warrants and represents as follows:
(A) The undersigned has sufficient liquid assets to sustain a loss of
the undersigned's entire investment.
(B) The undersigned represents that he/she/it is either a Qualified
Institutional Buyer as that term is defined under the Securities Act of 1933, as
amended (the "Act"), or is an Accredited Investor as that term is defined in
Regulation D promulgated under the Act. In general, an "Accredited Investor" is
deemed to be an institution with assets in excess of $5,000,000 or individuals
with net worth in excess of $1,000,000 or annual income exceeding $200,000 or
$300,000 jointly with their spouse.
(C) The Company has not made any other representations or warranties to
the undersigned with respect to the Company or rendered any investment advice.
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(D) The undersigned has not authorized any person or institution to act
as the undersigned's Purchaser Representative (as that term is defined in
Regulation D of the General Rules and Regulations under the Act) in connection
with this transaction. The undersigned has such knowledge and experience in
financial, investment and business matters that the undersigned is capable of
evaluating the merits and risks of the prospective investment in the securities
of the Company. The undersigned has consulted with such independent legal
counsel or other advisers as the undersigned has deemed appropriate to assist
the undersigned in evaluating the proposed investment in the Company.
(E) The undersigned represents that the undersigned (i) has adequate
means of providing for the undersigned's current financial needs and possible
personal contingencies and has no need for liquidity of investment in the
Company; (ii) can afford (a) to hold unregistered securities for an indefinite
period of time as required; and (b) sustain a complete loss of the entire amount
of the subscription; and (iii) has not made an overall commitment to investments
which are not readily marketable which is disproportionate so as to cause such
overall commitment to become excessive.
(F) The undersigned has been afforded the opportunity to ask questions
of, and receive answers from the officers and/or directors of the Company acting
on its behalf concerning the terms and conditions of this transaction and to
obtain any additional information, to the extent that the Company possesses such
information or can acquire it without unreasonable effort or expense, necessary
to verify the accuracy of the information furnished; and has availed himself of
such opportunity to the extent the undersigned considers appropriate in order to
permit the undersigned to evaluate the merits and risks of an investment in the
Company. It is understood that all documents, records and books pertaining to
this investment have been made available for inspection, and that the books and
records of the Company will be available upon reasonable notice for inspection
by investors during reasonable business hours at its principal place of
business.
(G) The undersigned further acknowledges that this offering has not been
passed upon or the merits thereof endorsed or approved by any state or federal
authorities.
(H) The shares being subscribed for are being acquired solely for the
account of the undersigned for investment purposes and not with a view to, or
for resale in connection with, any distribution in any jurisdiction where such
sale or distribution would be precluded. The undersigned does not intend to
dispose of all or any part of the shares except in compliance with the
provisions of the Act and applicable state securities laws, and understands that
the shares are being offered pursuant to a specific exemption under the
provisions of the Act, which exemption(s) depends, among other things, upon the
compliance with the provisions of the Act.
(I) The undersigned acknowledges that the undersigned has been provided
with a Confidential Term Sheet and copies of the Company's periodic report on
Form 10-
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K for the fiscal year ended December 31, 2002, and 10-Q for the 3 months ended
September 30, 2003, as filed with the United States Securities and Exchange
Commission. The undersigned acknowledges that the undersigned has reviewed the
foregoing.
(J) The undersigned hereby agrees that the Company may insert the
following or similar legend on the face of the certificates evidencing the
shares if required in compliance with the Securities Act or state securities
laws:
"These securities have not been registered under the Securities Act of
1933, as amended ("Act"), or any state securities laws and may not be sold
or otherwise transferred or disposed of except pursuant to an effective
registration statement under the Act and any applicable state securities
laws, or an opinion of counsel satisfactory to counsel to the issuer that
an exemption from registration under the act and any applicable state
securities laws is available."
The undersigned certifies that each of the foregoing representations and
warranties set forth in subsections (A) through (J) inclusive of this Section 3
are true as of the date hereof and shall survive such date.
4. Representations and Warranties of the Company. To induce each
investor to make this Offer, the Company represents and warrants to each such
investors that:
(A) Organization, Organization, Good Standing and Qualification. The
Company and each of its subsidiaries (each a "Subsidiary") is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. The Company and each Subsidiary has full
corporate power and authority to own and hold its properties and to conduct its
business. The Company and each Subsidiary is duly licensed or qualified to do
business, and in good standing, in each jurisdiction in which the nature of its
business requires licensing, qualification or good standing, except for any
failure to be so licensed or qualified or in good standing that would not have a
material adverse effect on the Company and each of its Subsidiaries taken as a
whole or the consolidated results of operations, assets, or financial condition
of the Company or on the Company's ability to perform its obligations hereunder
(a "Material Adverse Effect").
(B) Corporate Power, Authorization; Enforceability. The Company has full
corporate power and authority to consummate the transactions contemplated
hereby. All action on the part of the Company, its directors and stockholders
necessary for the authorization, sale, issuance and delivery of the Common Stock
contemplated hereby and the performance of the Company's obligations hereunder
has been taken. The Common Stock to be purchased has been duly authorized and,
when issued in accordance with the terms hereof, will be validly issued, fully
paid and nonassessable and will be free and clear of all liens and encumbrances
imposed by or through the Company other than restrictions imposed herein and
applicable securities laws. This Agreement constitutes a
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legal, valid, and binding Agreement of the Company, enforceable against the
Company in accordance with its terms.
(C) Financial Statements and Commission Filings; Undisclosed
Liabilities. (i) Included in the Company's Annual Report on Form 10-K for the
year ended December 31, 2002 (the "2002 10-K") are true and complete copies of
the Company's consolidated audited balance sheets (the "Balance Sheets") as of
December 31, 2002, and the related consolidated audited statements of
operations, changes in stockholders' equity (deficit) and comprehensive income
(loss) and cash flows for the year ended December 31, 2002 (the "Financial
Statements"), accompanied by the reports of the Company's auditor. The Financial
Statements have been prepared in accordance with United States generally
accepted accounting principles ("GAAP"), applied consistently with past
practices (except as may be indicated in the notes thereto), and as of their
respective dates, fairly present, in all material respects, the Company's
consolidated financial position and the results of the Company's operations as
of the time and for the periods indicated therein. The Financial Statements have
been prepared and are in accordance with the Company's accounting books and
records.
(ii) A copy of each report, schedule, effective registration statement
and definitive proxy statement filed by the Company with the Commission since
December 31, 2002 (as the documents may have been amended since the time of
their filing, the "Commission Documents") has also been made available to the
Purchasers either by physical delivery or via the Commission's XXXXX System. As
of their respective filing dates, each Commission Document complied in all
material respects with the requirements of the Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and
regulations of the Commission thereunder applicable to the Commission Documents.
The Company's financial statements included in the Commission Documents complied
as to form in all material respects with then applicable accounting requirements
and with the published rules and regulations of the Commission with respect
thereto, were prepared in accordance with GAAP, applied consistently with the
Company's past practices, and as of their respective dates, fairly presented in
all material respects the Company's financial position and the results of the
Company's operations as of the time and for the periods indicated therein
(except as may be indicated in the notes thereto or, in the case of the
unaudited statements, as permitted by Form 10-Q, and Regulations S-K and S-X of
the Commission).
(D) No Material Adverse Changes. Since September 30, 2003, except as
disclosed in the Commission Documents filed subsequent to that date, there has
not been any material adverse change in the business, financial condition or
operating results of the Company or its Subsidiaries.
(E) Compliance. Except as is disclosed in the Commission Documents or
herein the Company and each Subsidiary in compliance in all material respects
with all applicable laws and all orders of, and agreements with, any
governmental authority applicable to it or any of its assets. The Company and
each Subsidiary has all permits, certificates, licenses, approvals and other
authorizations required under applicable laws or
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necessary in connection with the conduct of its business, except where the
failure to have such permits, certificates, licenses, approvals and other
authorizations would not have a Material Adverse Effect.
(F) No Conflict; Governmental Consents, (i) The execution and delivery
by the Company of this Agreement and the consummation of the transactions
contemplated hereby will not (a) result in the violation of any provision of the
Certificate of Incorporation or By-laws of the Company, or (b) result in any
violation of any law, statute, rule, regulation, order, writ, injunction,
judgment or decree of any court or governmental authority to or by which the
Company or any Subsidiary is bound.
(ii) No consent, approval, license, permit, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority remains to be obtained or is
otherwise required to be obtained by the Company in connection with the
authorization, execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby, including, without limitation the issue
and sale of the Common Stock, except filings as may be required to be made by
the Company after the closing with (a) the Commission, and (b) state blue sky or
other securities regulatory authorities.
The Company certifies that each of the foregoing representations and
warranties set forth in this Section 4 are true as of the date hereof and shall
survive such date.
5. Indemnification.
The undersigned understands that the shares acquired as a result of the
subscription right provided in Section 1 hereof are being offered without
registration under the Act and applicable state securities laws and in reliance
upon the exemption for transactions by the Company not involving any public
offering; that the availability of such exemption is, in part, dependent upon
the truthfulness and accuracy of the representations made by the undersigned
herein; that the Company will rely on such representations in accepting any
subscriptions for the shares and that the Company may take such steps as it
considers reasonable to verify the accuracy and truthfulness of such
representations in advance of accepting or rejecting the undersigned's
subscription. The undersigned agrees to indemnify and hold harmless the Company
against any damage, loss, expense or cost, including reasonable attorneys' fees,
sustained as a result of any misstatement or omission on the undersigned's part.
6. FOR RESIDENTS OF ALL STATES: THE SECURITIES OFFERED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY
STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION
OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE
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REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME.
7. No Waiver.
Notwithstanding any of the representations, warranties, acknowledgments or
agreements made herein by the undersigned, the undersigned does not thereby or
in any manner waive any rights granted to the undersigned under federal or state
securities laws.
8. Revocation.
The undersigned agrees that the undersigned shall not cancel, terminate or
revoke this Subscription Agreement or any agreement of the undersigned made
hereunder other than as set forth under Section 6 above, and that this
Subscription Agreement shall survive the death or disability of the undersigned.
9. Termination of Subscription Agreement.
If the Company elects to cancel this Subscription Agreement, provided that
it returns to the undersigned, without interest and without deduction, all sums
paid, by the undersigned, this offer shall be null and void and of no further
force and effect, and no party shall have any rights against any other party
hereunder.
10. Miscellaneous.
(A) All notices or other communications given or made hereunder shall be
in writing and shall be mailed by registered or certified mail, return receipt
requested, postage prepaid, to the undersigned at the undersigned's address set
forth below and to Metropolitan Health Networks, Inc., 000 Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, ATTN: Xxxxx Xxxxxxx.
(B) This Subscription Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof and may be amended
only by a writing executed by all parties.
(C) The provisions of this Subscription Agreement shall survive the
execution hereof.
11. Certification.
The undersigned certifies that the undersigned has read this entire
Subscription Agreement and that every statement on the undersigned's part made
and set forth herein is true and complete.
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SUBSCRIPTION PROCEDURE
In order to subscribe for shares of Common Stock, a prospective investor
must deliver the following items to the Company at Metropolitan Health Networks,
Inc., 000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000,
ATTN: Xxxxx Xxxxxxx:
A. One completed copy of this Subscription Agreement (the "Subscription
Agreement") with signatures properly executed;
B. One completed copy of either the Purchaser Questionnaire (if the
investor is a person), or the Entity Purchaser Questionnaire (if the investor is
an entity), with signatures properly executed; and
C. A check payable to Xxxxxx & Xxxxxx, P.A. Trust Account in the amount
of the number of shares of Common Stock subscribed for multiplied by $0.60. In
the alternative, you may wire funds directly to Xxxxxx & Neiman, P.A. Trust
Account at:
City National Bank of Florida
0 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
(000) 000-0000
Bank's ABA No.: 000000000
Attn: Xxxxxxxxx Xxxxxxx or Xxxxxx Xx Xxxxxxxx
Account Name: Xxxxxx & Neiman. P.A. Trust Account
Account Number: 4001547575
Pursuant to Section 1 above, payment may also be made within five (5)
business days of receipt by the investor of written notice from the Company that
terms of acceptable settlement of the IRS Obligations have been reached with the
IRS together with documentation from the IRS that a settlement has been reached
or an opinion from the Company's outside counsel that such an agreement has been
reached. Payment made pursuant to this paragraph must be made by certified check
or wire transfer only.
Investors making payments by wire transfer must notify the Company at the
time the wire transfer is made.
All subscriptions must be made by the execution and delivery of a
Subscription Agreement and Purchaser Questionnaire. Subscriptions are not
binding on the Company until accepted by the Company. The Company will refuse
any subscription by giving written notice to the subscriber by personal delivery
or first-class mail. In the Company's sole discretion, the Company may establish
a limit on the number of shares of Common Stock subscribed for by a particular
subscriber.
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IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement on the date the undersigned's signature has been subscribed and sworn
to below.
The Shares of Common
Stock are to be issued in
(check one box): _________________________________________
Print Name of Investor
_________________________________________
[ ] individual name Print Name of Joint Investor
(if applicable)
[ ] joint tenants
with rights of _________________________________________
survivorship Signature of Investor
[ ] tenants in the
entirety
_________________________________________
Signature of Joint Investor
[ ] corporation
(an officer _________________________________________
must sign) Address of Investor
[ ] partnership
(all general partners
must sign)
Accepted as of___________,2004
METROPOLITAN HEALTH NETWORKS, INC.
By: ___________________________________
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
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