Exhibit 10.26
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT made as of this 16th day of September 2005,
between Health Benefits Direct Corporation, a Delaware corporation with offices
at 0000 Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000 (the "Company") and Xxxxx X.
Xxxxxxx, an individual with an address at Five Radnor Corporate Center, Xxxxx
000, 000 Xxxxxxxxxx Xxxx, Xxxxxx, XX 00000 (the "Subscriber").
WHEREAS, the Company is offering the Subscriber an opportunity to
make an investment in the Company; and
WHEREAS, the Subscriber desires to make an investment in the Company
on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants hereinafter set forth, the parties hereto do hereby agree as
follows:
I. SUBSCRIPTION FOR UNITS AND REPRESENTATIONS AND COVENANTS OF
SUBSCRIBER
1.1 Subject to the terms and conditions hereinafter set forth,
Subscriber hereby agrees to purchase from the Company and the Company agrees to
sell to the Subscriber (i) 300,000 shares of Common Stock, $0.001 par value per
share (the "Common Stock") and (ii) a five-year warrant to purchase 75,000
shares of Common Stock at an exercise price of $1.50 per shares (the Warrant"
and together with the Common Stock, the "Securities") at an aggregate purchase
price of $225,000. The purchase price is payable by cash or wire transfer of
immediately available funds to the account of the Company, pursuant to the wire
instructions attached hereto as Exhibit A.
1.2 The Subscriber recognizes that the purchase of the Common
Stock and the Warrants involves a high degree of risk in that (i) an investment
in the Company is highly speculative and only investors who can afford the loss
of their entire investment should consider investing in the Company and the
Common Stock and the Warrants; (ii) the Common Stock and the Warrants are not
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities law; (iii) there is no trading market for the Common Stock or
the Warrants, none is likely ever to develop, and the Subscriber may not be able
to liquidate his investment; (iv) transferability of the Common Stock and the
Warrants is extremely limited; and (v) an investor could suffer the loss of his,
her or its entire investment.
1.3 The Subscriber represents and warrants that the Subscriber
is an "accredited investor" as such term in defined in Rule 501 of Regulation D
promulgated under the Act and that the Subscriber is able to bear the economic
risk of an investment in the Common Stock and the Warrants.
1.4 The Subscriber acknowledges that the Subscriber has prior
investment experience (including investment in non listed and non registered
securities) and has evaluated, or has employed the services of an investment
advisor, attorney or accountant to evaluate, such an investment by the
Subscriber. The Subscriber represents that the Subscriber's overall commitment
to investments which are not readily marketable is not disproportionate to the
Subscriber's net worth, and that the Subscriber's investment in the Common Stock
and Warrants will not cause such overall commitment to become excessive. The
Subscriber represents that he has adequate means of providing for his current
needs and personal and family contingencies and has no need for liquidity in his
investment in the Common Stock and Warrants. The Subscriber is financially able
to bear the economic risk of this investment, including the ability to afford
holding the Common Stock and Warrants for an indefinite period or to afford a
complete loss of this investment.
1.5 The Subscriber acknowledges that the Subscriber has been
afforded the opportunity to ask questions of and receive answers from duly
authorized officers or other representatives of the Company concerning the
Company and the purchase of the Securities, and any additional information which
the Subscriber has requested.
1.6 The Subscriber acknowledges that the purchase of the
Securities may involve tax consequences to the Subscriber. The Subscriber
acknowledges that the Subscriber must retain his own professional advisors to
evaluate the tax and other consequences to the Subscriber of an investment in
the Securities.
1.7 The Subscriber acknowledges that this offering has not been
reviewed by the SEC or any state securities commission, and that no federal or
state agency has made any finding or determination regarding the fairness or
merits of the offering. The Subscriber represents that the Common Stock and the
Warrants are being purchased for his own account, for investment only, and not
with a view toward distribution or resale to others. The Subscriber agrees that
he will not sell or otherwise transfer the Common Stock or Warrants unless they
are registered under the Act or unless an exemption from such registration is
available, as the same may be amended from time to time.
1.8 The Subscriber understands that the provisions of Rule 144
under the Act are not available for at least one (1) year to permit resales of
the Common Stock or Warrants, and there can be no assurance that the conditions
necessary to permit such sales under Rule 144 will ever be satisfied. The
Subscriber understands that the Company is under no obligation to the Subscriber
to comply with the conditions of Rule 144 or take any other action necessary in
order to make any exemption for the sale of the Common Stock or Warrants without
registration available.
1.9 The Subscriber agrees to hold the Company and its directors,
officers and controlling persons and their respective heirs, representatives,
successors and assigns harmless and to indemnify them against all liabilities,
costs and expenses incurred by them as a result of any misrepresentation made by
the Subscriber contained herein or any sale or distribution by the Subscriber in
violation of the Act (including without limitation the rules promulgated
thereunder), any state securities laws, or the Company's certificate of
incorporation or by-laws, as amended from time to time.
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1.10 The Subscriber consents to the placement of a legend on any
certificate or other document evidencing the Common Stock and the Warrants
stating that they have not been registered under the Act and setting forth or
referring to the restrictions on transferability and sale thereof.
1.11 The Subscriber understands that the Company will review and
rely on this Subscription Agreement without making any independent
investigation; and it is agreed that the Company reserves the unrestricted right
to reject or limit any subscription and to withdraw the Offering at any time.
1.12 The Subscriber hereby represents that the address of the
Subscriber furnished at the end of this Subscription Agreement is the
undersigned's principal residence if the Subscriber is an individual or its
principal business address if it is a corporation or other entity.
1.13 The Subscriber acknowledges that if the Subscriber is a
Registered Representative of an NASD member firm, the Subscriber must give such
firm the notice required by the NASD's Conduct Rules, receipt of which must be
acknowledged by such firm on the signature page hereof.
1.14 The Subscriber hereby represents that, except as expressly
set forth in this Subscription Agreement, no representations or warranties have
been made to the Subscriber by the Company or any agent, employee or affiliate
of the Company and in entering into this transaction, the Subscriber is not
relying on any information, other than that contained in this Subscription
Agreement and the results of independent investigation by the Subscriber.
1.15 The Subscriber recognizes that the Company will require
additional financing in order to accomplish its short-term goals and its
business objectives. There can be no assurance that any such additional funds
will be available on reasonable terms, or at all, and any such additional funds
raised in any equity offering will dilute the interests of the Subscriber.
Subscriber further recognizes that Company reserves the right to pay a
commission or finders fee of up to 10% of the gross proceeds of the offering.
1.16 All information provided by the Subscriber in the Investor
Questionnaire attached hereto as Exhibit B is true and accurate in all respects,
and the Subscriber acknowledges that the Company will be relying on such
information to its possible detriment in deciding whether the Company can sell
these securities to the Subscriber without giving rise to the loss of an
exemption from registration under the applicable securities laws.
1.17 The Subscriber is aware that the Company has not entered
into any agreement or understanding providing for the purchase of any business
or assets, and that by execution of this Subscription Agreement, the Subscriber
consents to any and all resulting terms of any purchases which will be in the
sole discretion of the Company over which the Subscriber will have no effective
influence.
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II. REPRESENTATIONS BY THE COMPANY
The Company represents and warrants to the Subscriber that as of the
date of the closing of this Offering (the "Closing Date"):
(a) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
the corporate power to conduct the business which it conducts and proposes to
conduct.
(b) The execution, delivery and performance of this
Subscription Agreement by the Company will have been duly authorized by the
Company and all other corporate action required to authorize and consummate the
offer and sale of the Common Stock and the Warrants will have been duly taken
and approved.
(c) The Securities have been duly and validly authorized and
issued.
(d) The Company has obtained, or is in the process of
obtaining, all licenses, permits and other governmental authorizations necessary
to the conduct of its business, except where the failure to so obtain such
licenses, permits and authorizations would not have a material adverse effect on
the Company. Such licenses, permits and other governmental authorizations
obtained are in full force and effect, except where the failure to be so would
not have a material adverse effect on the Company, and the Company is in all
material respects complying therewith.
(e) The Company knows of no pending or threatened legal or
governmental proceedings to which the Company is a party which would materially
adversely affect the business, financial condition or operations of the Company.
(f) The Company is not in violation of or default under, nor
will the execution and delivery of this Subscription Agreement or the issuance
of the Common Stock and Warrants, or the consummation of the transactions herein
contemplated, result in a violation of, or constitute a default under, the
Company's certificate of incorporation or by-laws, any material obligations,
agreements, covenants or conditions contained in any bond, debenture, note or
other evidence of indebtedness or in any material contract, indenture, mortgage,
loan agreement, lease, joint venture or other agreement or instrument to which
the Company is a party or by which it or any of its properties may be bound or
any material order, rule, regulation, writ, injunction, or decree of any
government, governmental instrumentality or court, domestic or foreign.
III. COVENANTS BY THE COMPANY
The Company agrees the Subscriber will have the certain registration
rights with respect to the shares of Common Stock, and the shares of Common
Stock underlying the Warrants, issued to the Subscriber pursuant to the terms of
the Registration Rights Agreement annexed hereto as Exhibit C. Certain
additional holders of Common Stock will have a right to have their shares of
Common Stock registered pursuant to any registration statement tat is filed for
the Subscriber.
IV. TERMS OF SUBSCRIPTION
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4.1 Subject to Section 4.2 hereof, the subscription period will
begin as of September 16, 2005 and will terminate at 11:59 PM Eastern time, on
September 22, 2005, unless sooner terminated by the Company, or extended by the
Company.
4.2 The Subscriber has effected a wire transfer in the full
amount of the purchase price for the Common Stock and the Warrants to the
account of Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP, as escrow agent for
the Company, in accordance with the wire instructions set forth on Exhibit A
hereto.
4.3 The Subscriber hereby authorizes and directs the Company to
deliver any certificates or other written instruments representing the Common
Stock and the Warrants to be issued to such Subscriber pursuant to this
Subscription Agreement to the address indicated on the signature page hereof.
4.4 The Subscriber hereby authorizes and directs the Company to
return any funds, without interest, for unaccepted subscriptions to the same
account from which the funds were drawn.
4.5 If the Subscriber is not a United States person, such
Subscriber will immediately notify the Company and the Subscriber hereby
represents that the Subscriber is satisfied as to the full observance of the
laws of its jurisdiction in connection with any invitation to subscribe for the
Common Stock and the Warrants or any use of this Subscription Agreement,
including (i) the legal requirements within its jurisdiction for the purchase of
the Common Stock and the Warrants, (ii) any foreign exchange restrictions
applicable to such purchase, (iii) any governmental or other consents that may
need to be obtained, and (iv) the income tax and other tax consequences, if any,
that may be relevant to the purchase, holding, redemption, sale or transfer of
the Common Stock and the Warrants. Such Subscriber's subscription and payment
for, and continued beneficial ownership of, the Common Stock and he Warrants
will not violate any applicable securities or other laws of the Subscriber's
jurisdiction.
V. MISCELLANEOUS
5.1 Any notice or other communication given hereunder will be
deemed sufficient if in writing and sent by reputable overnight courier,
facsimile (with receipt of confirmation) or registered or certified mail, return
receipt requested, addressed to the Company, at the address set forth in the
first paragraph hereof, Attention Xxxxx Xxxxxxx, Chief Executive Officer,
facsimile 000-000-0000 and to the Subscriber at the address indicated on the
signature page hereof. Notices will be deemed to have been given on the date of
mailing or fax, except notices of change of address, which will be deemed to
have been given when received.
5.2 This Subscription Agreement will not be changed, modified or
amended except by a writing signed by the parties to be charged, and this
Subscription Agreement may not be discharged except by performance in accordance
with its terms or by a writing signed by the party to be charged.
5.3 This Subscription Agreement will be binding upon and inure
to the benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns. This Subscription Agreement sets forth
the entire agreement and understanding between the
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parties as to the subject matter thereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among them.
5.4 Notwithstanding the place where this Subscription Agreement
may be executed by any of the parties hereto, the parties expressly agree that
all the terms and provisions hereof will be construed in accordance with and
governed by the laws of the State of Delaware. The parties hereby agree that any
dispute which may arise between them arising out of or in connection with this
Subscription Agreement will be adjudicated before a court located in Kent
County, Delaware and they hereby submit to the exclusive jurisdiction of the
federal and state courts of the State of Delaware located in Kent County with
respect to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have respecting the
venue of any such action or proceeding brought in such a court or respecting the
fact that such court is an inconvenient forum, relating to or arising out of
this Subscription Agreement or any acts or omissions relating to the sale of the
securities hereunder, and consent to the service of process in any such action
or legal proceeding by means of registered or certified mail, return receipt
requested, in care of the address set forth below or such other address as the
undersigned will furnish in writing to the other.
5.5 This Subscription Agreement may be executed in counterparts.
Upon the execution and delivery of this Subscription Agreement by the
Subscriber, this Subscription Agreement will become a binding obligation of the
Subscriber with respect to the purchase of the Securities as herein provided;
subject, however, to the right hereby reserved to the Company to (i) enter into
the same agreements with other subscribers, (ii) to add and/or to delete other
persons as subscribers and (iii) to cut back or reject any subscription.
5.6 The holding of any provision of this Subscription Agreement
to be invalid or unenforceable by a court of competent jurisdiction will not
affect any other provision of this Subscription Agreement, which will remain in
full force and effect.
5.7 It is agreed that a waiver by either party of a breach of
any provision of this Subscription Agreement will not operate, or be construed,
as a waiver of any subsequent breach by that same party.
5.8 The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Subscription Agreement.
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IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement as of the day and year first written above.
300,000 75,000 = $ 225,000
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Shares of Common Stock Number of Warrants to Aggregate Purchase Price
subscribed for purchase Common Stock
subscribed for
MANNER IN WHICH TITLE IS TO BE HELD (PLEASE CHECK ONE):
1. ___ Individual 7. ___ Trust/Estate/Pension or Profit
sharing Plan
Date Opened:______________
2. ___ Joint Tenants with Right of 8. ___ As a Custodian for
Survivorship _______________________________
Under the Uniform Gift to
Minors Act of the State of
_______________________________
3. ___ Community Property 9. ___ Married with Separate Property
4. ___ Tenants in Common 10. ___ Xxxxx
5. ___ Corporation/Partnership/ 11. ___ Tenants by the Entirety
Limited Liability Company
6. ___ XXX
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EXECUTION BY NATURAL PERSONS
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Exact Name in Which Title is to be Held
Xxxxx X. Xxxxxxx
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Name (Please Print)
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Residence: Number and Street
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City, State and Zip Code
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Social Security Number
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Telephone Number
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Fax Number (if available)
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E-Mail (if available)
/s/ Xxxxx X. Xxxxxxx
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(Signature)
ACCEPTED this 16th day of September 2005, on behalf Health Benefits Direct
Corporation.
By: /s/ Xxxxx Xxxxxxx
_____________________________________
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
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