EXHIBIT 99.1
SUBSCRIPTION AGREEMENT
This subscription (this "Subscription") is dated _______,
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200__, between ___________________________ ("Buyer") and Applied Digital
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Solutions Inc., a Missouri corporation ("Seller"), whereby the parties agree
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as 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 VALUE $.001 (THE "SHARES"), ON THE DATE HEREOF,
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AT A PRICE PER SHARE EQUAL TO $________ FOR AN AGGREGATE PURCHASE
PRICE OF $_______________ (THE "PURCHASE PRICE") PURSUANT TO THE
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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-______, WHICH REGISTRATION STATEMENT (THE "REGISTRATION
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STATEMENT") HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
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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
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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
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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
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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
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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.
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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
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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 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
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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
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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
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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.
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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.
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 _________, 200_:
BUYER:
____________________________ Address for Notice:
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By:_________________________
Name:
Title:
Taxpayer ID No.:
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No. of Shares subscribed:
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Amount of Wire: $
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