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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
