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EXHIBIT 10.27
SUBSCRIPTION AGREEMENT
Dear Subscriber:
You (the "Subscriber") hereby agree to purchase, and RnetHealth, Inc., a
Colorado corporation (the "Company") hereby agrees to issue and to sell to the
Subscriber, the number of shares of the Company's $.01 par value common stock
(the "Company Shares") as set forth on the signature page hereof. (The Company
Shares are sometimes referred to herein as the "Shares" or "Common Stock"). Upon
acceptance of this Agreement by the Subscriber, the Company shall issue and
deliver to the Subscriber the Company Shares against payment, by federal funds
(U.S.) wire transfer of the Purchase Price. Wire instructions for the Company
are attached hereto as Schedule A.
The following terms and conditions shall apply to this subscription.
1. Subscriber's Representations and Warranties. The Subscriber hereby
represents and warrants to and agrees with the Company that:
(a) Information on Company. The Subscriber has been furnished
with and has read the Company's Registration Statement on Form SB-2, as amended
(File No. 333-39934) and subsequent Forms 10-QSB and 8-K, and Schedule 14A, each
as filed with the U.S. Securities and Exchange Commission (the "Commission")
(collectively, with exhibits thereto, hereinafter referred to as the "Reports").
In addition, the Subscriber has received from the Company such other information
concerning its operations, financial condition and other matters as the
Subscriber has requested, and considered all factors the Subscriber deems
material in deciding on the advisability of investing in the Securities (such
information in writing is collectively, the "Other Written Information").
(b) Information on Subscriber. The Subscriber is an "accredited
investor", as such term is defined in Regulation D promulgated by the Commission
under the Securities Act of 1933, as amended, is experienced in investments and
business matters, has made investments of a speculative nature and has purchased
securities of United States publicly-owned companies in private placements in
the past and, with its representatives, has such knowledge and experience in
financial, tax and other business matters as to enable the Subscriber to utilize
the information made available by the Company to evaluate the merits and risks
of and to make an informed investment decision with respect to the proposed
purchase, which represents a speculative investment. The Subscriber has the
authority and is duly and legally qualified to purchase and own the Securities
being purchased by the Subscriber. The Subscriber is able to bear the risk of
such investment for an indefinite period and to afford a complete loss thereof.
(c) Purchase of Securities. On the Closing Date, the Subscriber
will purchase the Company Shares for its own account and not with a view to any
distribution thereof.
(d) Compliance with Securities Act. The Subscriber understands
and agrees that the Securities have not been registered under the Securities Act
of 1933, as amended (the "1933 Act") by reason of their issuance in a
transaction that does not require registration under the 1933
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Act, and that such Securities must be held unless a subsequent disposition is
registered under the 1933 Act or is exempt from such registration.
(e) Company Shares Legend. The Company Shares and Finder's
Shares shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
RNETHEALTH, INC. THAT SUCH REGISTRATION IS NOT REQUIRED."
(f) Communication of Offer. The offer to sell the Securities was
directly communicated to the Subscriber. At no time was the Subscriber presented
with or solicited by any leaflet, newspaper or magazine article, radio or
television advertisement, or any other form of general advertising or solicited
or invited to attend a promotional meeting otherwise than in connection and
concurrently with such communicated offer.
(g) Correctness of Representations. The Subscriber represents
that the foregoing representations and warranties are true and correct as of the
date hereof and, unless the Subscriber otherwise notifies the Company prior to
the Closing Date (as hereinafter defined), shall be true and correct as of the
Closing Date. The foregoing representations and warranties shall survive the
Closing Date.
2. Company Representations and Warranties. The Company represents and
warrants to and agrees with the Subscriber that:
(a) Due Incorporation. The Company and each of its subsidiaries
is a corporation duly organized, validly existing and in good standing under the
laws of the respective jurisdictions of their incorporation and have the
requisite corporate power to own their properties and to carry on their business
as now being conducted. The Company and each of its subsidiaries is duly
qualified as a foreign corporation to do business and is in good standing in
each jurisdiction where the nature of the business conducted or property owned
by it makes such qualification necessary, other than those jurisdictions in
which the failure to so qualify would not have a material adverse effect on the
business, operations or prospects or condition (financial or otherwise) of the
Company.
(b) Outstanding Stock. All issued and outstanding shares of
capital stock of the Company and each of its subsidiaries has been duly
authorized and validly issued and are fully paid and non-assessable.
(c) Authority; Enforceability. This Agreement and all agreements
related hereto and referred to herein have been duly authorized, executed and
delivered by the Company and is a valid and binding agreement enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
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applicability relating to or affecting creditors' rights generally and to
general principles of equity. The Company has full corporate power and authority
necessary to enter into this Agreement and to perform its obligations hereunder
and all other agreement entered into by the Company relating hereto and
contemplated hereby.
(d) Additional Issuances. There are no outstanding agreements or
preemptive or similar rights affecting the Company's common stock or equity and
no outstanding rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, or agreements or understandings with
respect to the sale or issuance of any shares of common stock or equity of the
Company or other equity interest in any of the subsidiaries of the Company,
except as described in the Reports or Other Written Information.
(e) Consents. No consent, approval, authorization or order of
any court, governmental agency or body or arbitrator having jurisdiction over
the Company, or any of its affiliates, the NASD, NASDAQ or the Company's
Shareholders is required for execution of this Agreement, and all other
agreements entered into by the Company relating thereto, including, without
limitation the issuance and sale of the Securities, and the performance of the
Company's obligations hereunder and pursuant to any agreement referred to herein
or relating hereto.
(f) No Violation or Conflict. Neither the issuance and sale of
the Securities nor the performance of the Company's obligations under this
Agreement and all other agreements entered into by the Company relating thereto
by the Company will: (i) violate, conflict with, result in a breach of, or
constitute a default (or an event which with the giving of notice or the lapse
of time or both would be reasonably likely to constitute a default) under (A)
the articles of incorporation, charter or bylaws of the Company, or any of its
affiliates or subsidiaries, (B) any decree, judgment, order, law, treaty, rule,
regulation or determination applicable to the Company, or any of its affiliates
of any court, governmental agency or body, or arbitrator having jurisdiction
over the Company, or any of its affiliates or over the properties or assets of
the Company, or any of its affiliates or subsidiaries, (C) the terms of any
bond, debenture, note or any other evidence of indebtedness, or any agreement,
stock option or other similar plan, indenture, lease, mortgage, deed of trust or
other instrument to which the Company, or any of its affiliates or subsidiaries
is a party, by which the Company, or any of its affiliates or subsidiaries is
bound, or to which any of the properties of the Company, or any of its
affiliates or subsidiaries is subject, or (D) the terms of any "lock-up" or
similar provision of any underwriting or similar agreement to which the Company,
or any of its affiliates or subsidiaries is a party; or (ii) result in the
creation of imposition of any lien, charge or encumbrance upon the Securities or
any of the assets of the Company, any of its affiliates or subsidiaries.
(g) The Securities. The Securities upon issuance: (i) are, or
will be, free and clear of any security interests, liens, claims or other
encumbrances, subject to restrictions upon transfer under the 1933 Act and State
laws; (ii) have been, or will be, duly and validly authorized and on the date of
issuance, on the Closing Date; (iii) will not have been issued or sold in
violation of any preemptive or other similar rights of the holders of any
securities or creditors of the Company; (iv) will not subject the holders
thereof to personal liability by reason of being such holders; and
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(h) Reporting Company. The Company is publicly-held company
whose common stock is (and has been for the past 90 days) registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "1934
Act") and is duly listed for trading on the NASD OTC Bulletin Board. Pursuant to
the provisions of the 1934 Act, the Company has timely filed all reports and
other materials required to be filed thereunder with the Securities and Exchange
Commission during the preceding twelve months, and, is eligible to file a Form
S-3 or Form SB-2 to register the Securities.
(i) No Market Manipulation. The Company has not taken, and will
not take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or manipulation of
the price of the common stock of the Company to facilitate the sale or resale of
the Securities or affect the price at which the Securities may be issued or
resold.
(j) Information Concerning Company. The Reports and Other
Written Information contain all material information relating to the Company and
its operations and financial condition as of their respective dates and include
all information required to be disclosed therein. Since the date of the
financial statements included in the Reports, and except as modified in the
Other Written Information, there has been no material adverse change in the
Company's business, financial condition or affairs not disclosed in the Reports.
The Reports and Other Written Information do not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(k) Stop Transfer. The Securities are restricted securities as
of the date of this Agreement. The Company will not issue any stop transfer
order or other order impeding the sale and delivery of the Securities at such
time as the Securities are registered for public sale or an exemption from
registration is available.
(l) Defaults. Neither the Company nor any of its subsidiaries is
in violation of its Articles of Incorporation or Bylaws. Neither the Company nor
any of its subsidiaries is (i) in default under or in violation of any other
material agreement or instrument to which it is a party or by which it or any of
its properties are bound or affected, which default or violation would have a
material adverse effect on the Company, (ii) in default with respect to any
order of any court, arbitrator or governmental body or subject to or party to
any order of any court or governmental authority arising out of any action, suit
or proceeding under any statute or other law respecting antitrust, monopoly,
restraint of trade, unfair competition or similar matters, or (iii) to its
knowledge in violation of any statute, rule or regulation of any governmental
authority material to its business.
(m) No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offers to
buy any security under circumstances that would cause the offering of the
Securities pursuant to this Agreement to be integrated with prior offerings by
the Company for purposes of the 1933 Act or any applicable stockholder approval
provisions. Nor will the Company or any of its affiliates or subsidiaries take
any action or steps that would cause the offering of the Securities to be
integrated with other offerings.
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(n) No General Solicitation. Neither the Company, nor any of its
affiliates, nor to its knowledge, any person acting on its or their behalf, has
engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D under the Act) in connection with the offer or sale of
the Securities.
(o) Listing. The Company's common stock is listed for trading on
NASD OTC Bulletin Board. The Company has not received any notice that its common
stock will be delisted from the OTC Bulletin Board or that the common stock does
not meet all requirements for the continuation of such listing.
(p) Correctness of Representations. The Company represents that
the foregoing representations and warranties are true and correct as of the date
hereof in all material respects and, unless the Company otherwise notifies the
Subscriber prior to the Closing Date. The foregoing representations and
warranties and all representations, warranties and undertakings of the Company
set forth in this Subscription Agreement shall survive the Closing Date.
3. Regulation D Offering. This Offering is being made pursuant to the
exemption from the registration provisions of the Securities Act of 1933, as
amended, afforded by Rule 506 of Regulation D promulgated thereunder.
4. Reissuance of Securities. The Company agrees to reissue certificates
representing the Securities without the legends set forth in Section 1(e) above
at such time as (a) the holder thereof is permitted to dispose of such
Securities pursuant to Rule 144(k) under the Act. The Company agrees to
cooperate with the Subscriber in connection with all resales pursuant to Rule
144(d) and Rule 144(k) and provide legal opinions necessary to allow such
resales provided the Company and its counsel receive reasonably requested
certifications from the Subscriber and selling broker, if any.
5. Redemption. The Company may not redeem any of the Securities without
the consent of the holder of the Securities, except as otherwise described in
this Subscription Agreement.
6. Finder's Fee. The Company shall pay to Xxxxxxxx Xxxxx ( "Finder"), a
fee (the "Finder's Fee"). The Company will issue and deliver to Finder as a
Finder's Fee, Fifty-five Thousand (55,000) Shares of RnetHealth, Inc. Common
Stock ("Finder's Shares"). All the representations, covenants, warranties,
indemnifications and undertakings, made or granted to or for the benefit of the
Subscriber are hereby also made and granted to the Finder in respect of the
Finder's Shares.
7. Covenants of the Company and Subscriber Regarding Indemnification.
(a) The Company agrees to indemnify, hold harmless, reimburse
and defend Subscriber against any claim, cost, expense, liability, obligation,
loss or damage (including reasonable legal fees) of any nature, incurred by or
imposed upon Subscriber which results, arises out of or is based upon (i) any
misrepresentation by Company or breach of any warranty by Company in this
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Agreement, or Reports or other Written Information; or (ii) any breach or
default in performance by Company of any covenant or undertaking to be performed
by Company hereunder, or any other agreement entered into by the Company and
Subscribers relating hereto.
(b) Subscriber agrees to indemnify, hold harmless, reimburse and
defend the Company at all times against any claim, cost, expense, liability,
obligation, loss or damage (including reasonable legal fees) of any nature,
incurred by or imposed upon the Company which results, arises out of or is based
upon (a) any misrepresentation by Subscriber in this Agreement; or (b) any
breach or default in performance by Subscriber of any covenant or undertaking to
be performed by Subscriber hereunder, or any other agreement entered into by the
Company and Subscriber relating hereto.
8. Miscellaneous.
(a) Notices. All notices or other communications given or made
hereunder shall be in writing and shall be personally delivered or deemed
delivered the first business day after being telecopied (provided that a copy is
delivered by first class mail) to the party to receive the same at its address
set forth below or to such other address as either party shall hereafter give to
the other by notice duly made under this Section: (i) if to the Company, to
RnetHealth, Inc., 000 Xxxxx Xxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxxx, XX 00000,
telecopier number: (000) 000-0000, and (ii) if to the Subscriber, to the name,
address and telecopy number set forth on the signature page hereto.
(b) Closing. The closing date shall be the date that subscriber
funds representing the net amount due the Company from the Purchase Price are
transmitted by wire transfer to the Company (the "Closing Date").
(c) Entire Agreement; Assignment. This Agreement represents the
entire agreement between the parties hereto with respect to the subject matter
hereof and may be amended only by a writing executed by both parties. No right
or obligation of either party shall be assigned by that party without prior
notice to and the written consent of the other party.
(d) Execution. This Agreement may be executed by facsimile
transmission, and in counterparts, each of which will be deemed an original.
(e) Law Governing this Agreement. This Agreement shall be
governed by and construed in accordance with the laws of the State of California
without regard to principles of conflicts of laws. Any action brought by either
party against the other, concerning the transactions contemplated by this
Agreement shall be brought only in the state courts of California or in the
federal courts located in the state of California. Both parties and the
individuals executing this Agreement and other agreements on behalf of the
Company agree to submit to the jurisdiction of such courts and waive trial by
jury. The prevailing party shall be entitled to recover from the other party its
reasonable attorney's fees and costs. In the event that any provision of this
Agreement or any other agreement delivered in connection herewith is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such
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statute or rule of law. Any such provision, which may prove invalid or
unenforceable under any law, shall not affect the validity or enforceability of
any other provision of any agreement.
Please acknowledge your acceptance of the foregoing Subscription Agreement by
signing and returning a copy to the undersigned whereupon it shall become a
binding agreement between us.
RNETHEALTH, INC.
By: /s/ XXXXX XXXXX XXXXXXX
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Xxxxx Xxxxx Xxxxxxx
Dated: August 25, 2000
Purchase Price: $517,000
Issue Price (per share): $0.47
Common Shares Purchase (aggregate): 1,100,000
ACCEPTED: Dated as of August 30, 2000
FIRST BANCORP.
0000 Xxxxx xx Xxxx Xxxxxx
XX Xxxxx - Xxxxxxxxxxx
Xxxxxxxx, Xxxxxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
By: /s/ XXXX X. XXXXXXX
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Print Name: /s/ XXXX X. XXXXXXX
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XXXX X. XXXXXXX
S.V.P - TREASURER
Its:
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