EXHIBIT 99.1
SUBSCRIPTION AGREEMENT
This subscription (this "Subscription") is dated , 200 ,
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between ("Buyer") and Applied Digital Solutions
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Inc., a Missouri corporation ("Seller"), whereby the parties agree as
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follows:
1. SUBSCRIPTION.
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a) The Buyer shall buy and the Seller agrees to sell and issue to
the Buyer shares of the Seller's common stock, par
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value $.001 (the "Shares"), on the date hereof, at a price per Share
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equal to $ for an aggregate purchase price of $
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(the "Purchase Price") pursuant to the Seller's best efforts offering
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of up to a maximum of 30,000,000 shares of its common stock.
b) The Shares are registered on the Form S-1, File No. 333- ,
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which registration statement (the "Registration Statement") has been
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filed with the Securities and Exchange Commission, was declared
effective on , 2003, and no stop order has been entered by
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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:
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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
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offering of the Shares.
2. SELLER REPRESENTATIONS AND WARRANTIES. The Seller represents and
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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
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that:
a) Authorization; Enforceability. This Subscription has been duly
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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
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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
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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.
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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,
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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 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:
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(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
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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
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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.
6. JURISDICTION. This Subscription shall be governed by and interpreted in
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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.
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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.
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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:
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Name:
Title:
THIS SUBSCRIPTION IS AGREED TO AND ACCEPTED AS OF , 200 :
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BUYER:
Address for Notice:
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By:
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Name:
Title:
Taxpayer ID No.:
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No. of Shares subscribed:
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Amount of Wire: $
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