EXHIBIT 99.1
SUBSCRIPTION AGREEMENT
This subscription (this "Subscription") is dated _______, 200__,
------------
between ___________________________ ("Buyer") and Applied Digital Solutions
-----
Inc., a Missouri corporation ("Seller"), whereby the parties agree as
------
follows:
1. Subscription.
------------
a) The Buyer shall buy and the Seller agrees to sell and issue
to the Buyer ____________________ shares of the Seller's common stock, par
value $.001 (the "Shares"), on the date hereof, at a price per Share equal
------
to $________ for an aggregate purchase price of $_______________ (the
"Purchase Price") pursuant to the Seller's best efforts offering of up to a
--------------
maximum of 50,000,000 shares of its common stock.
b) The Shares are registered on the Form S-1, File No.
333-102165, which registration statement (the "Registration Statement") has
----------------------
been filed with the Securities and Exchange Commission, was declared
effective on _____________, 2003, and no stop order has been entered by the
Securities and Exchange Commission as of the date hereof.
c) The Purchase Price is payable by wire transfer of immediately
available funds made payable to Applied Digital Solutions, Inc.
contemporaneously with the execution and delivery of this Subscription by
the Buyer or within three business days thereafter. All wires should be sent
to:
Applied Digital Solutions, Inc.
Bank Account - ABA:______________________________
Certificates for the Shares will be delivered by the
Seller through its transfer agent to the Buyer promptly following the
Closing (as herein defined). The "Closing" shall occur no later than three
(3) business days after receipt hereof by the Seller of this Subscription
and full payment of the Purchase Price to the Seller.
d) The Buyer acknowledges receipt of the Registration Statement
prospectus dated _________, 2003, of the Seller relating to the offering of
the Shares.
2. Seller Representations and Warranties. The Seller represents and
-------------------------------------
warrants that:
a) it has full right, power and authority to enter into this
Subscription and to perform all of its obligations hereunder;
b) this Subscription has been duly authorized and executed by
and constitutes a valid and binding agreement of the Seller enforceable in
accordance with its terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors' rights and remedies;
c) the execution and delivery of this Subscription and the
consummation of the transactions contemplated hereby do not conflict with or
result in a breach of: (i) the Seller's certificate of incorporation or
by-laws, or (ii) in any material respect, any agreement to which the Seller
is a party or by which any of its property or assets is bound;
d) upon issuance in accordance with the terms hereof, the
Shares shall be duly and validly issued and outstanding, fully paid and
non-assessable, and the Buyer shall be entitled to all rights accorded to a
holder of the Seller's common stock; and
e) the Registration Statement and the prospectus included
therein do not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading in light of the circumstances
under which they were made.
3. Buyer Representations and Warranties. The Buyer represents and
------------------------------------
warrants that:
a) Authorization; Enforceability. This Subscription has been
-----------------------------
duly and validly authorized, executed and delivered on behalf of such Buyer
and constitutes a valid and binding agreement of such Buyer, enforceable
against such Buyer in accordance with its terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar
laws relating to, or affecting generally, the enforcement of creditors'
rights and remedies.
b) Investigation; Economic Risk. Such Buyer has received and
----------------------------
reviewed the Registration Statement prospectus and has had the opportunity
to speak to representatives of the Seller and obtain from the Seller such
information as is necessary to permit such Buyer to evaluate the merits and
risks of its investment in the Shares. Such Buyer understands that its
investment in the Shares involves a high degree of risk and hereby
represents that it is able to bear the economic risk of holding such Shares
as may be required pursuant to this Subscription.
c) Buyer Status. Such Buyer is acquiring the Shares as
------------
principal for its own account for investment purposes only. Such Buyer is
acquiring the Shares hereunder in the ordinary course of its business. Such
Buyer does not have any agreement or understanding, directly or indirectly,
with any person to distribute any of the Shares. Such Buyer is an accredited
investor within the meaning of Rule 501(a) of the Securities Act of 1933,
as amended. The Buyer understands that the Seller is relying on information
provided by the Buyer in a purchaser questionnaire executed by the Buyer
to confirm that the Buyer is an accredited investor.
4. Indemnification.
---------------
a) The Seller agrees that it shall indemnify and hold
harmless, the Buyer, its stockholders, directors, officers, employees,
agents, affiliates and controlling persons within the meaning of Section 20
of the Securities Exchange Act of 1934 and Section 15 of the Securities Act
of 1933, each as amended (any and all of whom are referred to as an
"Indemnified Party"), from and against any and all losses, claims, damages,
-----------------
liabilities, or expenses, and all actions in respect thereof (including, but
not limited to, all legal or other expenses reasonably incurred by an
Indemnified Party in connection with the
2
investigation, preparation, defense or settlement of any claim, action or
proceeding, whether or not resulting in any liability (provided, however,
that the Seller shall only pay for one separate legal counsel for the
Indemnified Parties, and such counsel shall be selected by Buyers holding a
majority-in-interest of the Shares included in the Registration Statement to
which the claim relates)), incurred by an Indemnified Party arising out of
or resulting from: (i) any actions taken or omitted to be taken by the
Seller, its affiliates, employees or agents arising out of or resulting from
the execution, delivery, performance, breach by the Seller or enforcement of
this Subscription; or (ii) any untrue statement or alleged untrue statement
of a material fact contained in any of the financial or other information
contained in the Registration Statement prospectus furnished to the Buyer by
or on behalf of the Seller or the omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, the Seller will not be liable: (i) to the
-------- -------
extent, that any loss, claim, damage, liability or expense is finally
judicially determined to have resulted primarily from the Buyer's willful
misconduct, fraudulent action(s), or negligence in performing its
obligations hereunder; (ii) for any amounts paid in settlement of any claim
if such settlement is effected without the prior written consent of the
Seller, which consent shall not be unreasonably withheld; or (iii) for any
claim arising out of or based upon any information furnished in writing to
the Seller by any Indemnified Party expressly for use in connection with the
preparation of the Registration Statement prospectus or any amendment or
supplement thereto.
b) If the indemnification provided for herein is conclusively
determined (by an entry of final judgment by a court of competent
jurisdiction and the expiration of the time or denial of the right to
appeal) to be unavailable or insufficient to hold any Indemnified Party
harmless in respect to any losses, claims, damages, liabilities or expenses
referred to herein, then the Seller shall contribute to the amounts paid or
payable by such Indemnified Party in such proportion as is appropriate and
equitable under all circumstances taking into account the relative benefits
received by the Seller on the one hand and the Buyer on the other, from the
transaction or proposed transaction under this Subscription or, if
allocation on that basis is not permitted under applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
received by the Seller on the one hand and the Buyer on the other, but also
the relative fault of the Seller and the Buyer.
5. Notice. All communications hereunder, except as may be otherwise
------
specifically provided herein, shall be in writing and shall be deemed to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile transmission (provided confirmation of
transmission is mechanically or electronically generated and kept on file by
the sending party); or (iii) on the next business day after deposit with a
nationally recognized overnight courier with next-day delivery guaranteed.
The address and facsimile numbers for such communications shall be:
To the Seller: 000 Xxxxx Xxxx Xxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
To the Buyer: as set forth on the signature page hereto.
3
6. Jurisdiction. This Subscription shall be governed by and
------------
interpreted in accordance with the laws of the State of Florida for
contracts to be wholly performed in such state and without giving effect to
the principles thereof regarding the conflict of laws. Each of the parties
consents to the exclusive jurisdiction of the federal courts whose districts
encompass any part of Palm Beach County, Florida or the state courts of the
State of Florida in connection with any dispute arising under this
Subscription and hereby waives, to the maximum extent permitted by law, any
objection based on forum non conveniens, to the bringing of any such
proceeding in such jurisdiction. To the extent determined by such court, the
prevailing party shall reimburse the other party for any reasonable legal
fees and disbursements incurred in enforcement of, or protection of any of
its rights under this Subscription.
7. Miscellaneous.
-------------
a) This Subscription constitutes the entire understanding
and agreement between the parties with respect to its subject matter and
there are no agreements or understandings with respect to the subject matter
hereof which are not contained in this Subscription. This Subscription may
be modified only in writing signed by the party to be charged hereunder.
b) This Subscription may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and shall become effective when counterparts have been signed by
each party and delivered to the other parties hereto, it being understood
that all parties need not sign the same counterpart. Execution may be made
by delivery by facsimile.
c) The provisions of this Subscription are severable and, in
the event that any court or officials of any regulatory agency of competent
jurisdiction shall determine that any one or more of the provisions or part
of the provisions contained in this Subscription shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision or part of a provision of this Subscription and this Subscription
shall be reformed and construed as if such invalid or illegal or
unenforceable provision, or part of such provision, had never been contained
herein, so that such provisions would be valid, legal and enforceable to the
maximum extent possible, so long as such construction does not materially
adversely effect the economic rights of either party hereto.
4
If the foregoing correctly sets forth our agreement, please confirm
this by signing and returning to us the duplicate copy of this Subscription.
AGREED AND ACCEPTED:
SELLER:
APPLIED DIGITAL SOLUTIONS, INC.
By:____________________________________
Name:
Title:
THIS SUBSCRIPTION IS AGREED TO AND ACCEPTED AS OF _________, 2003:
BUYER:
____________________________ Address for Notice:
------------------
By:_________________________
Name:
Title:
Taxpayer ID No.:
----------------------------
No. of Shares subscribed:
-------------------
Amount of Wire: $
---------------------------
5
