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EXHIBIT 10.45
SUBSCRIPTION AGREEMENT
AND
INVESTMENT REPRESENTATIONS
Board of Directors
Xxxxxxxxxx.xxx, Inc.
00000 0xx Xxxxxx, Xxxxx X
Xxxxxx Xxxxxxxxx, XX 00000
Re: Subscription to Purchase Xxxxxxxxxx.xxx Stock
Gentlemen:
1. Subscription. Xxxxxxxxxx.xxx, Inc., a Florida
corporation, (referred to hereinafter as the "Issuer") has
offered for sale two million (2,000,000) shares of its common
stock, $0.001 par value (referred to hereinafter as
"Xxxxxxxxxx.xxx Stock") to the undersigned at a price of $5.00
per share. Subject to the terms and conditions set forth below,
the undersigned (referred to hereinafter as the "Subscriber"),
agrees to purchase 2,000,000 shares of Xxxxxxxxxx.xxx Stock. The
Subscriber tenders herewith the sum of $10,000,000 in investment
assets with a market value in excess of the Subscription and
insured against all perils through Lloyds of London, in full
payment of the purchase price, subject to the terms of the offer,
acceptance and the conditions described below.
2. Acceptance. It is understood and agreed that the
Issuer shall have the sole and unconditional right to accept or
reject this subscription and tender of the purchase price, in
whole but not in part. The Issuer will move promptly upon
receipt of this subscription to determine the acceptability of
this subscription. If this subscription is deemed to be
unacceptable, the Subscriber will be promptly notified, the
subscription price will be returned to the Subscriber without
interest, offset or deduction, and the subscription documents
will be marked "Void." The Issuer may elect to retain copies of
said documents for the sole purpose of demonstrating compliance
with the provisions of an exemption from the registration
requirements of federal and state securities laws.
3. Investment Representations, Warranties and Covenants.
The Subscriber represents and warrants to and covenants with The
Issuer as follows:
(a) The Subscriber has carefully reviewed the
materials supplied by the Issuer. The Subscriber acknowledges
that it has had the reasonable opportunity to ask questions and
to examine such supplemental documentation as it may deem
necessary to make an informed decision concerning investment in
the Xxxxxxxxxx.xxx Stock. The Subscriber acknowledges that it
has received satisfactory answers to its questions from
management of the Issuer and has verified to its satisfaction the
information in the materials provided. The Subscriber has relied
upon its own independent investigation in making its decision to
buy the Xxxxxxxxxx.xxx Stock.
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(b) The Subscriber understands that the financial
model (if any) contained in the materials provided or discussions
of the potential profitability of the Issuer or the future value
of its Xxxxxxxxxx.xxx Stock are not projections or guarantees of
future profitability; but, such forecasts are included or
discussed solely for the purpose of demonstrating the
hypothetical operations of the Issuer and are subject to the
disclaimers included therein. There can be no guarantee the
Company will achieve profitability or create value in the future
in its Xxxxxxxxxx.xxx Stock.
(c) The Subscriber understands that the offer and
sale of the Xxxxxxxxxx.xxx Stock are not registered with the
U.S. Securities and Exchange Commission or the securities
authority of any state or jurisdiction; but, the offer and sale
is made instead in reliance upon an exemption from registration
commonly referred to as the "private placement exemption." The
Subscriber understands that there is no public market for the
Xxxxxxxxxx.xxx Stock, that none is expected to develop under
current circumstances and that the sale or other transfer of the
Xxxxxxxxxx.xxx Stock, except by gift or inheritance, may be
restricted by federal and state securities laws and by the terms
of the offer and sale. The Subscriber understands that sale or
other transfer of the Xxxxxxxxxx.xxx Stock by it, except by gift
or inheritance, may require that the Xxxxxxxxxx.xxx Stock be the
subject of an effective registration statement on file or
qualification with the U.S. Securities and Exchange Commission
and appropriate state securities commission(s) or an opinion of
counsel acceptable to the Issuer and its counsel that the sale or
other transfer is exempt from such registration or qualification.
The Subscriber understands that the Issuer is under no
obligation, and it cannot compel the Issuer, to register the
Xxxxxxxxxx.xxx Stock for transfer. The Subscriber understands
that it may be required to bear the economic risk of the
investment indefinitely. The Subscriber understands a notice of
these restrictions will be printed on the Xxxxxxxxxx.xxx Stock
certificates and the transfer agent, if any, will be instructed
to honor the notice.
(d) The Subscriber is acquiring the Xxxxxxxxxx.xxx
Stock for investment for its own account and not for the purpose
of resale, division, fractionalization or distribution. The
Subscriber acknowledges that it is holding the Xxxxxxxxxx.xxx
pursuant to a "Lock-up" Agreement. The Subscriber has not
predetermined the occurrence of any event or condition upon which
it intends to sell the Xxxxxxxxxx.xxx Stock.
(e) The Subscriber understands that the Issuer has a
limited operating history and that investment in the
Xxxxxxxxxx.xxx Stock involves a high degree of risk which could
result in a complete loss of its investment.
(f) The Subscriber is an "accredited investor" as defined in
Regulation D under the Securities Act of 1933, as amended, in
that it has a net worth which exceeds $1,000,000 and its
investment in the Xxxxxxxxxx.xxx Stock does not exceed ten
percent of its net worth.
(g) The Subscriber has such knowledge and experience
in business and financial matters that it is able to evaluate the
merits and risks of investment in the Xxxxxxxxxx.xxx Stock. The
Subscriber acknowledges that it has sufficient income and net
worth that it is able to bear the economic risk of loss of its
investment and that the complete loss of investment in the
Xxxxxxxxxx.xxx Stock would not prevent it from providing for its
commitments and foreseeable contingencies.
4. Indemnification. The Subscriber acknowledges that it
understands the meaning and legal consequences of the
representations, warranties and covenants contained in paragraph
3, and it agrees to indemnify and hold harmless the Issuer, its
officers and directors, its accountants and counsel from and
against all claim, injury, loss, damage and liability due to or
arising out of any breach of the representations, warranties or
covenants contained in this Subscription Agreement. The
indemnification provided herein
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shall not expressly, impliedly or in any other manner be deemed
to be a waiver of any rights granted to the Subscriber under
federal or state securities laws. The Subscriber understands the
Issuer and its counsel will rely upon its representations and
warranties for the purpose of complying with the requirements of
federal and state securities laws.
5. Confidential Information. The disclosure materials
supplied by the Issuer contain confidential and proprietary
information and trade secrets. Furthermore, the requirements for
an exemption from registration and qualification under federal
and state securities laws include limitations on distribution of
disclosure materials. Accordingly, the Subscriber agrees, in
consideration for the Issuer offering it the opportunity to
invest in the Xxxxxxxxxx.xxx Stock, to keep all information in
the disclosure materials confidential and to discuss it only with
management of the Issuer.
6. General. This agreement shall be binding upon the
Subscriber, its successors and assigns. This agreement shall not
be assignable. This agreement shall be construed under the laws
of the State of Florida.
Subscribed this 15th day of April, 1999.
Signature of Subscriber
Life Foundation Trust
By: \s\ Xxxxxxxx X. Xxxxxxx, Trustee
The foregoing Subscription Agreement and Investment
Representations Accepted this 15th day of April, 1999.
Xxxxxxxxxx.xxx, Inc.
By: \s\ Xxxxx Xxxxxxxx
Authorized Officer
