EXHIBIT 10.3
SUBSCRIPTION AGREEMENT
1. Subscription.
Subject to the terms and conditions hereinafter set forth in this
Subscription Agreement, the undersigned hereby offers to purchase 220,000 shares
of common stock (the "Common Stock") of Metropolitan Health Networks, Inc. (the
"Company") for $0.60 per share. If the Offer is accepted, the shares of Common
Stock shall be paid for by the undersigned by the delivery to the Company of
that certain Promissory Note issued by the Company to the undersigned in the
principal amount of $132,000 (the "Note") marked "Paid in Full".
2. Conditions to Offer.
The offering is made subject to the following conditions: (i) that the
Company shall have the right to accept or reject this Offer, in whole or in
part, for any reason whatsoever; and (ii) that the undersigned agrees to comply
with the terms of this Subscription Agreement and to execute and deliver any and
all further documents necessary to complete the transaction.
Acceptance of this Offer shall be deemed given by the countersigning of
this Subscription Agreement on behalf of the Company.
3. Representations and Warranties of the Undersigned.
The undersigned, in order to induce the Company to accept this Offer,
hereby warrants and represents as follows:
(A) The undersigned has sufficient liquid assets to sustain a loss of
the undersigned's entire investment.
(B) The undersigned represents that he/she/it is an Accredited Investor
as that term is defined in Regulation D promulgated under the Act. In general,
an "Accredited Investor" is deemed to be an institution with assets in excess of
$5,000,000 or individuals with net worth in excess of $1,000,000 or annual
income exceeding $200,000 or $300,000 jointly with their spouse.
(C) The Company has not made any other representations or warranties to
the undersigned with respect to the Company or rendered any investment advice.
(D) The undersigned has not authorized any person or institution to act
as the undersigned's Purchaser Representative (as that term is defined in
Regulation D of the General Rules and Regulations under the Act) in connection
with this transaction. The undersigned has such knowledge and experience in
financial, investment and business matters that the undersigned is capable of
evaluating the merits and risks of the
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prospective investment in the securities of the Company. The undersigned has
consulted with such independent legal counsel or other advisers, as the
undersigned has deemed appropriate to assist the undersigned in evaluating the
proposed investment in the Company.
(E) The undersigned represents that the undersigned (i) has adequate
means of providing for the undersigned's current financial needs and possible
personal contingencies and has no need for liquidity of investment in the
Company; (ii) can afford (a) to hold unregistered securities for an indefinite
period of time as required; and (b) sustain a complete loss of the entire amount
of the subscription; and (iii) has not made an overall commitment to investments
which are not readily marketable which is disproportionate so as to cause such
overall commitment to become excessive.
(F) The undersigned has been afforded the opportunity to ask questions
of, and receive answers from the officers and/or directors of the Company acting
on its behalf concerning the terms and conditions of this transaction and to
obtain any additional information, to the extent that the Company possesses such
information or can acquire it without unreasonable effort or expense, necessary
to verify the accuracy of the information furnished; and has availed himself of
such opportunity to the extent the undersigned considers appropriate in order to
permit the undersigned to evaluate the merits and risks of an investment in the
Company. It is understood that all documents, records and books pertaining to
this investment have been made available for inspection, and that the books and
records of the Company will be available upon reasonable notice for inspection
by investor during reasonable business hours at its principal place of business.
(G) The undersigned further acknowledges that this offering has not been
passed upon or the merits thereof endorsed or approved by any state or federal
authorities.
(H) The shares being subscribed for are being acquired solely for the
account of the undersigned for investment purposes and not with a view to, or
for resale in connection with, any distribution in any jurisdiction where such
sale or distribution would be precluded. The undersigned does not intend to
dispose of all or any part of the shares except in compliance with the
provisions of the Act and applicable state securities laws, and understands that
the shares are being offered pursuant to a specific exemption under the
provisions of the Act, which exemption(s) depends, among other things, upon the
compliance with the provisions of the Act.
(I) The undersigned acknowledges that the undersigned has been provided
with copies of the Company's periodic report on Form 10-K for the fiscal year
ended December 31, 2002, and 10-Q for the 3 months ended September 30, 2003, as
filed with the United States Securities and Exchange Commission. The undersigned
acknowledges that the undersigned has reviewed the foregoing.
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(J) The undersigned hereby agrees that the Company may insert the
following or similar legend on the face of the certificates evidencing the
shares if required in compliance with the Securities Act or state securities
laws:
"These securities have not been registered under the Securities Act of
1933, as amended ("Act"), or any state securities laws and may not be sold
or otherwise transferred or disposed of except pursuant to an effective
registration statement under the Act and any applicable state securities
laws, or an opinion of counsel satisfactory to counsel to the issuer that
an exemption from registration under the act and any applicable state
securities laws is available."
The undersigned certifies that each of the foregoing representations and
warranties set forth in subsections (A) through (J) inclusive of this Section 3
are true as of the date hereof and shall survive such date.
4. Representations and Warranties of the Company. To induce the
undersigned to make this Offer, the Company represents and warrants to the
undersigned that:
(A) Organization, Good Standing and Qualification. The Company and each
of its subsidiaries (each a "Subsidiary") is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation. The Company and each Subsidiary has full corporate power and
authority to own and hold its properties and to conduct its business. The
Company and each Subsidiary is duly licensed or qualified to do business, and in
good standing, in each jurisdiction in which the nature of its business requires
licensing, qualification or good standing, except for any failure to be so
licensed or qualified or in good standing that would not have a material adverse
effect on the Company and each of its Subsidiaries taken as a whole or the
consolidated results of operations, assets, or financial condition of the
Company or on the Company's ability to perform its obligations hereunder (a
"Material Adverse Effect").
(B) Corporate Power, Authorization; Enforceability. The Company has full
corporate power and authority to consummate the transactions contemplated
hereby. All action on the part of the Company, its directors and stockholders
necessary for the authorization, sale, issuance and delivery of the Common Stock
contemplated hereby and the performance of the Company's obligations hereunder
has been taken. The Common Stock to be purchased has been duly authorized and,
when issued in accordance with the terms hereof, will be validly issued, fully
paid and nonassessable and will be free and clear of all liens and encumbrances
imposed by or through the Company other than restrictions imposed herein and
applicable securities laws. This Agreement constitutes a legal, valid, and
binding Agreement of the Company, enforceable against the Company in accordance
with its terms.
(C) Financial Statements and Commission Filings: Undisclosed
Liabilities, (i) Included in the Company's Annual Report on Form 10-K for the
year ended December 31, 2002 (the "2002 10-K") are true and complete copies of
the Company's consolidated
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audited balance sheets (the "Balance Sheets") as of December 31, 2002, and the
related consolidated audited statements of operations, changes in stockholders'
equity (deficit) and comprehensive income (loss) and cash flows for the year
ended December 31, 2002 (the "Financial Statements"), accompanied by the reports
of the Company's auditor. The Financial Statements have been prepared in
accordance with United States generally accepted accounting principles ("GAAP"),
applied consistently with past practices (except as may be indicated in the
notes thereto), and as of their respective dates, fairly present, in all
material respects, the Company's consolidated financial position and the results
of the Company's operations as of the time and for the periods indicated
therein. The Financial Statements have been prepared and are in accordance with
the Company's accounting books and records.
(ii) A copy of each report, schedule, effective registration statement
and definitive proxy statement filed by the Company with the Commission since
December 31, 2002 (as the documents may have been amended since the time of
their filing, the "Commission Documents") has also been made available to the
undersigned either by physical delivery or via the Commission's XXXXX System. As
of their respective filing dates, each Commission Document complied in all
material respects with the requirements of the Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and
regulations of the Commission thereunder applicable to the Commission Documents.
The Company's financial statements included in the Commission Documents complied
as to form in all material respects with then applicable accounting requirements
and with the published rules and regulations of the Commission with respect
thereto, were prepared in accordance with GAAP, applied consistently with the
Company's past practices, and as of their respective dates, fairly presented in
all material respects the Company's financial position and the results of the
Company's operations as of the time and for the periods indicated therein
(except as may be indicated in the notes thereto or, in the case of the
unaudited statements, as permitted by Form 10-Q, and Regulations S-K and S-X of
the Commission).
(D) No Material Adverse Changes. Since September 30, 2003, except as
disclosed in the Commission Documents filed subsequent to that date, there has
not been any material adverse change in the business, financial condition or
operating results of the Company or its Subsidiaries.
(E) Compliance. Except as is disclosed in the Commission Documents or
herein the Company and each Subsidiary in compliance in all material respects
with all applicable laws and all orders of, and agreements with, any
governmental authority applicable to it or any of its assets. The Company and
each Subsidiary has all permits, certificates, licenses, approvals and other
authorizations required under applicable laws or necessary in connection with
the conduct of its business, except where the failure to have such permits,
certificates, licenses, approvals and other authorizations would not have a
Material Adverse Effect.
(F) No Conflict; Governmental Consents. (i) The execution and delivery
by the Company of this Agreement and the consummation of the transactions
contemplated
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hereby will not (a) result in the violation of any provision of the Certificate
of Incorporation or By-laws of the Company, or (b) result in any violation of
any law, statute, rule, regulation, order, writ, injunction, judgment or decree
of any court or governmental authority to or by which the Company or any
Subsidiary is bound.
(ii) No consent, approval, license, permit, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority remains to be obtained or is
otherwise required to be obtained by the Company in connection with the
authorization, execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby, including, without limitation the issue
and sale of the Common Stock, except filings as may be required to be made by
the Company after the closing with (a) the Commission, and (b) state blue sky or
other securities regulatory authorities.
The Company certifies that each of the foregoing representations and
warranties set forth in this Section 4 are true as of the date hereof and shall
survive such date.
5. Indemnification.
The undersigned understands that the shares acquired as a result of the
subscription right provided in Section 1 hereof are being offered without
registration under the Act and applicable state securities laws and in reliance
upon the exemption for transactions by the Company not involving any public
offering; that the availability of such exemption is, in part, dependent upon
the truthfulness and accuracy of the representations made by the undersigned
herein; that the Company will rely on such representations in accepting any
subscriptions for the shares and that the Company may take such steps as it
considers reasonable to verify the accuracy and truthfulness of such
representations in advance of accepting or rejecting the undersigned's
subscription. The undersigned agrees to indemnify and hold harmless the Company
against any damage, loss, expense or cost, including reasonable attorneys' fees,
sustained as a result of any misstatement or omission on the undersigned's part.
6. FOR RESIDENTS OF ALL STATES: THE SECURITIES OFFERED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY
STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION
OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
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7. No Waiver.
Notwithstanding any of the representations, warranties, acknowledgments or
agreements made herein by the undersigned, the undersigned does not thereby or
in any manner waive any rights granted to the undersigned under federal or state
securities laws.
8. Revocation.
The undersigned agrees that the undersigned shall not cancel, terminate or
revoke this Subscription Agreement or any agreement of the undersigned made
hereunder other than as set forth under Section 6 above, and that this
Subscription Agreement shall survive the death or disability of the undersigned.
9. Termination of Subscription Agreement.
If the Company elects to cancel this Subscription Agreement, provided that
it returns to the undersigned, without interest and without deduction, all sums
paid by the undersigned, this offer shall be null and void and of no further
force and effect, and no party shall have any rights against any other party
hereunder.
10. Miscellaneous.
(A) All notices or other communications given or made hereunder shall be
in writing and shall be mailed by registered or certified mail, return receipt
requested, postage prepaid, to the undersigned at the undersigned's address set
forth below and to Metropolitan Health Networks, Inc., 000 Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, ATTN: Xxxxx Xxxxxxx.
(B) This Subscription Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof and may be amended
only by a writing executed by all parties.
(C) The provisions of this Subscription Agreement shall survive the
execution hereof.
11. Certification.
The undersigned certifies that the undersigned has read this entire
Subscription Agreement and that every statement on the undersigned's part made
and set forth herein is true and complete.
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SUBSCRIPTION PROCEDURE
In order to subscribe for shares of Common Stock, the undersigned must
deliver the following items to the Company at Metropolitan Health Networks,
Inc., 000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000,
ATTN: Xxxxx Xxxxxxx:
A. One completed copy of this Subscription Agreement (the "Subscription
Agreement") with signatures properly executed;
B. One completed copy of the Purchaser Questionnaire, with signatures
properly executed; and
C. The Note marked "Paid in Full".
All subscriptions must be made by the execution and delivery of a
Subscription Agreement and Purchaser Questionnaire. Subscriptions are not
binding on the Company until accepted by the Company. The Company will refuse
any subscription by giving written notice to the subscriber by personal delivery
or first-class mail.
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IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement on the date the undersigned's signature has been subscribed and sworn
to below.
The Shares of Common XXXXXXX XXXXXXXXX
Stock are to be issued in _________________________________________
(check one box): Print Name of Investor
[ILLEGIBLE]
_________________________________________
[ X ] individual name Print Name of Joint Investor
(if applicable)
[ ] joint tenants [ILLEGIBLE]
with rights of _________________________________________
survivorship Signature of Investor
[ ] tenants in the _________________________________________
entirety Signature of Investor
[ ] corporation 00 XXXXXXXX XXX
(xx xxxxxxx XXXXXXXXX XX 00000
must sign) _________________________________________
Address of Investor
[ ] partnership
(all general partners
must sign)
Accepted as of XXXXX 0, 0000
XXXXXXXXXXXX HEALTH NETWORKS,INC.
By: /s/ Xxxxx X.Xxxxxxx
------------------------------------
Xxxxx X.Xxxxxxx
Secretary and Chief Financial Officer
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