Exhibit 10.4
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "Agreement") by and between
Metropolitan Health Networks, Inc., a corporation organized under the laws of
the State of Florida (the "Company") and the other person executing this
Agreement (the "Subscriber").
1. SUBSCRIPTION OFFER AND ACCEPTANCE
This Agreement sets forth the terms under which the Company
offers to sell the Subscriber shares of Common Stock of Metropolitan Health
Networks, Inc.'s, $.001 par value at $1.00 per share (hereinafter referred to as
the "Securities").
Execution of this Agreement shall constitute a subscription
offer by the Subscriber for shares subscribed to hereunder. The Company reserves
the right, in its sole discretion, to reject any subscription offer. If a
Subscriber's offer is accepted, the Company will execute a copy of this
Agreement and return it to the Subscriber.
IN MAKING AN INVESTMENT DECISION AN INVESTOR MUST RELY ON SUCH INVESTOR'S OWN
EXAMINATION OF THE COMPANY, INCLUDING, BUT NOT LIMITED TO, ITS RECENT
ORGANIZATION, ABSENCE OF OPERATING HISTORY, PROPOSED BUSINESS, PROSPECTS,
MANAGEMENT, LACK OF FINANCIAL RESOURCES AS WELL AS THE TERMS OF THE OFFERING.
THE SECURITIES ARE SPECULATIVE IN NATURE AND THE PURCHASE OF ANY OF THE
SECURITIES INVOLVES A HIGH DEGREE OF RISK. THE SECURITIES HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY
AUTHORITY. FURTHERMORE, NONE OF THE FOREGOING AUTHORITIES HAS CONFIRMED THE
ACCURACY OR DETERMINED THE ADEQUACY OF ANY INFORMATION FURNISHED BY THE COMPANY.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY
NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION
OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE FLORIDA SECURITIES AND
INVESTOR PROTECTION ACT IN RELIANCE UPON AN EXEMPTION THE REGISTRATION
PROVISIONS THEREOF. ANY PURCHASE IS VOIDABLE BY THE SUBSCRIBER WITHIN THREE (3)
DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY THE SUBSCRIBER TO THE
COMPANY, AN AGENT OF THE COMPANY OR ANY ESCROW AGENT. A WITHDRAWAL WITHIN SUCH
THREE (3) DAY PERIOD WILL BE WITHOUT FURTHER LIABILITY TO ANY PERSON. TO
ACCOMPLISH THE WITHDRAWAL, THE SUBSCRIBER NEED ONLY SEND A LETTER OR TELEGRAM TO
THE COMPANY INDICATING HIS INTENTION TO WITHDRAW AT METROPOLITAN HEALTH
NETWORKS, INC., ATTENTION : ▇▇▇▇ ▇▇▇▇▇▇▇▇▇. IT IS STRONGLY RECOMMENDED THAT ANY
SUCH LETTER BE SENT CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED.
2. Subscriber's Representations, Warranties, Covenants and
Acknowledgments
The Subscriber hereby represents, warrants, covenants and
acknowledges as follows:
(a) The Subscriber will acquire the Securities solely for
investment for the Subscriber's own account and not with a view to the sale,
distribution, fractionalization or other disposition thereof or any interest
therein;
(b) The Subscriber is able to bear the economic risks of the
purchase of the Securities, including the risk of losing all of such purchase
price and the Subscriber is aware of the limited ability to sell, transfer or
otherwise dispose of the Securities;
(c) The purchase price represents an insignificant portion of
the Subscriber's net worth and liquid assets;
(d) The Subscriber has been given the opportunity to visit the
Company's places of business, to ask questions and receive answers concerning
the terms and conditions of the offering of the Securities, the Company's recent
organization, proposed business, prospects, lack of financial resources,
possible inability to commence operations, management, competition and
otherwise, and to inspect all of the Company's books, records and contracts and
other documents and to obtain any additional information deemed relevant
thereby;
(e) The Subscriber has such knowledge and experience in
financial and business matters and can evaluate the merits and risks of the
purchase of the Securities and has obtained sufficient information to enable the
Subscriber and/or the Subscriber's representative to evaluate the merits and
risks of such a purchase;
(f) The Subscriber understands that (i) the Subscriber must
bear the economic risk of an investment in the Securities for an indefinite
period of time because the Securities have not been registered under the
Securities Act of 1933 (the "Act") or any other federal or state statute and
cannot be sold unless registered thereunder or pursuant to an exemption
therefrom, (ii) the Subscriber has carefully reviewed the form of the Option,
including, but not limited to the portions thereof relating to the Company's
right to redeem the Option for a nominal consideration, (iii) the Company is the
only person who can register the Securities under the Act and, except as
otherwise expressly set forth herein, the Company has no intention or obligation
to do so, and (iv) the Company will issue "stop-transfer" instructions to its
transfer agent with respect to the Securities or, in the absence thereof, note
such restrictions on its records;
(g) The Subscriber is a bona fide resident or domiciliary of
the State of New York and the offer and sale of the Securities has taken place
solely therein;
(h) There are no oral or written contracts, understandings,
agreements or arrangements pursuant to which the Subscriber may at some future
date sell or otherwise dispose of the Securities or cause the title in the
Securities to vest in any other person or entity;
(i) There are no oral or written contracts, understandings,
agreements or arrangements between the Subscriber and any other person or entity
by which any such person or entity will benefit in such manner as to be deemed
equivalent to an owner of any of the Securities, including, but not limited to,
the application of income received from a sale thereof;
(j) The Subscriber is aware that Rule 144 under the Act
permits sales of "restricted securities" only if fully paid for and beneficially
owned as contemplated in such Rule for at least two years and only upon
compliance with the other requirements of such Rule. If such Rule is available
to the subscriber, the Subscriber may make only routine sales of the Securities
in limited amounts in accordance with the terms and conditions of such Rule.
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(k) The Subscriber will not offer to sell, sell, hypothecate,
or otherwise transfer or dispose of any or all of the Securities unless (a) the
Securities have been registered under the Act or (b) the undersigned first
delivers to the Company a written opinion satisfactory to the Company and its
counsel to the effect that an exemption from registration under the Act is
available with respect to such disposition. The Subscriber shall bear the cost
of the Subscriber's own counsel in connection therewith.
(l) Prior to any proposed transfer or disposition of any of
the Securities or any interest therein, in the absence of a then effective and
current registration statement under the Securities Act relating thereto, the
Subscriber shall give written notice to the Company of such Subscriber's
intention to effect such disposition. Each such notice shall describe the manner
and circumstances of the proposed transfer or disposition in sufficient detail,
and shall be accompanied by either (i) a written opinion of legal counsel (at
the expense of the Subscriber) who shall be satisfactory in form and substance
to the Company's counsel, to the effect that the proposed transfer or
disposition of such Securities may be effected without registration under the
Securities Act and applicable state blue sky laws, or (ii) a "no action" letter
from the securities and Exchange Commission to the effect that the transfer or
distribution of such securities without registration under the Securities Act
will not result in a recommendation by the Staff of such Commission that action
be taken with respect thereto, or a combination of (i) and (ii) hereof,
whereupon the holder of such Securities shall be entitled to transfer such
Securities in accordance with the terms of the notice delivered by the holder to
the Company. Each certificate evidencing the Securities so transferred as above
provided shall bear the appropriate restrictive legend set forth herein.
(m) The Subscriber has adequate means of providing for his or
her current needs and possible personal contingencies, has no need for liquidity
of investment in the Securities and has no reason to anticipate any change in
personal circumstances, financial or otherwise, which may cause or require any
sale or distribution of the Securities.
(n) Prior to the Subscriber having any knowledge of the
Company or the Securities, the Subscriber did not have a personal or business
relationship with one or more officers of the Company.
(o) Neither the Company nor any person acting on its behalf
has offered the Units to the Subscriber by any form of general solicitation or
general advertising, including, but not limited to the following:
(i) any advertisement, article notice or other
communication published in any newspaper,
magazine, or similar media or broadcast over
television or radio; and
(ii) any seminar or meeting whose attendees have
been invited by any general solicitation or
general advertising.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company hereby represents, warrants and covenants that:
The Company has been validly organized pursuant to the laws of
Florida and all corporate action necessary for the Company to comply with all of
its obligations thereunder have been duly taken.
4. REGISTRATION UNDER THE SECURITIES ACT
(a) In the event that the Company files a registration
statement under the Securities Act in connection with a proposed public offering
of its securities, other than on Form S-4 or S-8 or any successor forms, the
Company will include therein for registration the Common Stock. Anything to the
contrary notwithstanding, the Company shall file a registration to register the
underlying shares contained herein within 30 days of the signing of this
agreement.
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(b) Upon the request of the Company, the Subscriber hereby
agrees to promptly furnish to the Company such information regarding the
Subscriber and the distribution of the Registrable Shares and such other
information as the Company may from time to time reasonably request, and the
Subscriber shall promptly advise the Company, in writing, of any material
changes in the information so supplied by the Subscriber. The Company's
obligation to include the Subscriber's Registrable Shares in any registration
statement is conditioned upon the Subscriber having furnished all such
information to the Company in a timely manner upon its request. The Subscriber
shall indemnify the Company with respect to any loss, cost or damage suffered by
the Company resulting from any information or misinformation furnished to the
Company by the Subscriber.
(c) The Subscriber shall comply with all applicable federal
and state laws, rules and regulations relating to the offer and sale of any such
Registrable Shares, including laws and regulations relating to the delivery of
prospectuses.
(d) Notwithstanding anything herein to the contrary, the
Company shall have no obligation to include any of the Registrable Shares in a
registration statement under the Act to the extent that (a) the Registrable
Shares may then be publicly sold without registration under the Act pursuant to
the provisions of Rule 144 or any successor provision or (b) the Managing
Underwriter in connection with an underwritten public offering objects thereto.
5. INVESTMENT LEGEND
The certificates representing any of the Securities which have
not then been registered under the Act shall bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR
SALE IN THE ABSENCE OF AN EFFECTIVE AND CURRENT REGISTRATION STATEMENT
AS TO THE SECURITIES UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAW OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
6. MISCELLANEOUS PROVISIONS
(a) This Agreement shall be governed by and construed in
accordance with the substantive law of the State of Florida without giving
effect to the principles of conflicts of law thereof. Each of the parties hereto
hereby consents to the exclusive jurisdiction and venue of the courts of the
State of Florida located in Broward County, Florida and the United States
District Court in and for the Southern District of Florida with respect to any
matter relating to this Agreement and the performance of the parties'
obligations hereunder and each of the parties hereto hereby further consents to
the personal jurisdiction of such courts. Any action suit or proceeding brought
by or on behalf of either of the parties hereto relating to such matters shall
be commenced, pursued, defended and resolved only in such courts and any
appropriate appellate court having jurisdiction to hear an appeal from any
judgment entered in such courts. The parties hereby agree that service of
process may be made in any manner permitted by the rules of such courts and the
laws of the State of Florida.
(b) This Agreement contains the entire agreement between the
parties hereto and cannot be modified or waived except in writing. The
representations, warranties and covenants contained herein shall survive the
purchase of the Securities; and
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(c) The headings herein have been inserted for convenience of
reference only and do not limit or otherwise affect construction or
interpretation of any term or provision hereof.
(d) The Company reserves the right to deny investments in less than a single
unit, or to investors who don't meet the accredited investor rules as proposed
by the SEC, without explanation, by just returning the investor's principal.
7. APPLICATION
The Subscriber hereby applies for the purchase of 300,000
shares of Common Stock of Metropolitan Health Networks, Inc., according to the
terms of the attached Term Sheet, subject to acceptance by the Company, and
encloses payment in the amount of $300,000 therefor by wire transfer to the
account of the Company.
8. SUBSCRIBER'S DATA
(PLEASE PRINT OR TYPE)
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Name or Names
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Street Address (Legal Residence)
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City, State or Country, Zip Code
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Telephone Nos. (Home)(Business)
###-##-####
Social Security/Taxpayer Identification Nos.
Date of Birth
SIGNATURE(S) OF SUBSCRIBER(S):
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DATED: February 11, 2002
(PLEASE SIGN AS NAME(S) APPEAR HEREON. WHEN SIGNING AS ATTORNEY, EXECUTOR,
PERSONAL REPRESENTATIVE, ADMINISTRATOR, TRUSTEE OR GUARDIAN, PLEASE GIVE TITLE
AS SUCH. IF JOINT OWNERSHIP, BOTH PARTIES MUST SIGN.)
Accepted on February 11, 2002, for Metropolitan Health Networks, Inc.:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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President
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