SUBSCRIPTION AGREEMENT
Aquagenix, Inc.
6500 N.W. 15th Avenue
Fort Lauderdale, Florida 33309
Gentlemen:
Pursuant to the discussion between Aquagenix, Inc., a Delaware
corporation (the "Company") and Jeffrey T. Katz (the "Undersigned"), the
Undersigned is writing to advise you of the following terms and conditions
under which the Undersigned hereby offers to subscribe (the "Offer") for
the purchase of One Hundred Twenty-Five Thousand (125,000) shares
("Shares") of Common Stock, par value $.01 per share, at a purchase
price of $4.00 per Share for an aggregate amount of $500,000.
1. Subscription. Subject to the terms and conditions
hereinafter set forth in this Subscription Agreement, the Undersigned
hereby offers to purchase the Shares for an aggregate purchase price of
$500,000.
If the Offer is accepted, the Shares shall be paid for by the
delivery of $500,000 by wire transfer payable to Aquagenix, Inc.,
BankAtlantic, 1750 East Sunrise Boulevard, Fort Lauderdale, Florida,
33304; ABA #267083763, Account #0055937302 and the certificate
evidencing the Shares shall be delivered to the Undersigned immediately
thereafter.
2. Representations and Warranties. In order to induce the
Company to accept this subscription, the Undersigned hereby represents
and warrants to, and covenants with, the Company as follows:
(a) The Undersigned has received and reviewed the
Company's Annual Reports on Form 10-KSB for the years ended
December 31, 1994 and December 31, 1995 (collectively the
"Disclosure Documents");
(b) The Undersigned has had a reasonable opportunity
to ask questions of and receive answers from the Company
concerning the Company and the Shares, and all such questions, if
any, have been answered to the full satisfaction of the
Undersigned;
(c) The Undersigned has such knowledge and expertise
in financial and business matters that the Undersigned is capable
of evaluating the merits and risks involved in an investment in the
Company;
(d) Except as set forth in the Disclosure Documents, no
representations or warranties have been made to the Undersigned
by or on behalf of the Company or any agent, employee or affiliate
of the Company and in entering into this transaction the Under-
signed is not relying upon any information, other than that
contained in the Disclosure Documents and the results of
independent investigation by the Undersigned;
(e) The Undersigned understands that (A) the Shares
have not been registered under the Act or the securities laws of
any state, based upon an exemption from such registration
requirements for non-public offerings pursuant to an exemption
under the Act; (B) the Shares are and will be "restricted securities",
as said term is defined in Rule 144 of the Rules and Regulations
promulgated under the Act; (C) the Shares may not be sold or
otherwise transferred unless they have been first registered under
the Act and all applicable state securities laws, or unless
exemptions from such registration provisions are available with
respect to said resale or transfer; (D) other than as set forth in the
Disclosure Documents, the Company is under no obligation to
register the Shares under the Act or any state securities laws, or to
take any action to make any exemption from any such registration
provisions available; (E) the certificates for the Note Shares and
the Warrant Shares will bear a legend to the effect that the transfer
of the securities represented thereby is subject to the provisions
hereof; and (F) stop transfer instructions will be placed with the
transfer agent for the Shares;
(f) The Undersigned is acquiring the Shares solely for
the account of the Undersigned, for investment purposes only, and
not with a view towards the resale or distribution thereof;
(g) The Undersigned will not sell or otherwise transfer
any of the Shares, or any interest therein, unless and until (i) said
Shares shall have first been registered under the Act and all
applicable state securities laws; or (ii) the Undersigned shall have
first delivered to the Company a written opinion of counsel (which
counsel and opinion (in form and substance) shall be reasonably
satisfactory to the Company), to the effect that the proposed sale or
transfer is exempt from the registration provisions of the Act and all
applicable state securities laws;
(h) The Undersigned has full power and authority to
execute and deliver this Subscription Agreement and to perform
the obligations of the Undersigned hereunder; and this Subscription
Agreement is a legally binding obligation of the Undersigned in
accordance with its terms;
(i) The Undersigned is an "accredited investor," as such
term is defined in Regulation D of the Rules and Regulations
promulgated under the Act and the Undersigned understands that
the Company has determined that the exemption from the
registration provisions of the Securities Act of 1933, as amended
(the "Act"), which is based upon non-public offerings are applicable
to the offer and sale of the Shares, based, in part, upon the
representations, warranties and agreements made by the
Undersigned herein and in the this Subscription Agreement.
3. The Undersigned understands that this subscription is not
binding upon the Company unless and until the Company accepts
it, which acceptance is at the sole discretion of the Company and is
to be evidenced by the Company's execution of this Subscription
Agreement where indicated.
4. The Undersigned agrees to indemnify the Company and
hold it harmless from and against any and all losses, damages, liabilities,
costs and expenses which it may sustain or incur in connection with the
breach by the Undersigned of any representation, warranty or covenant
made by the Undersigned herein.
5. Neither this Subscription Agreement nor any of the rights of
the Undersigned hereunder may be transferred or assigned by the
Undersigned.
6. This Subscription Agreement (i) may only be modified by a
written instrument executed by the Undersigned and the Company; and
(ii) sets forth the entire agreement of the Undersigned and the Company
with respect to the subject matter hereof; (iii) shall be governed by the
laws of the State of Florida applicable to contracts made and to be wholly
performed therein; and (iv) shall inure to the benefit of, and be binding
upon the Company and the Undersigned and its respective heirs, legal
representatives, successors and assigns.
7. Unless the context otherwise requires, all personal pronouns
used in this Subscription Agreement, whether in the masculine, feminine
or neuter gender, shall include all other genders.
8. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered
personally or mailed by certified or registered mail, return receipt
requested, postage prepaid, as follows: if to the Undersigned, to 26 Lower
Shad Road, Pound Ridge, NY 10576 and if to the Company, to
Aquagenix, Inc., 6500 N.R. 15th Avenue, Fort Lauderdale, Florida 33309
or to such other address as the Company or the Undersigned shall have
designated to the other by like notice.
9. JURISDICTIONAL NOTICE
FOR FLORIDA RESIDENTS: EACH FLORIDA RESIDENT WHO
SUBSCRIBES FOR THE PURCHASE OF SECURITIES HEREIN HAS
THE RIGHT, PURSUANT TO SECTION 517.061(11)(A)(5) OF THE
FLORIDA SECURITIES ACT, TO WITHDRAW HIS SUBSCRIPTION FOR
THE PURCHASE AND RECEIVE A FULL REFUND OF ALL MOINES
PAID WITHIN THREE (3) BUSINESS DAYS AFTER THE EXECUTION
OF THE SUBSCRIPTION AGREEMENT OR PAYMENT FOR THE
PURCHASE HAS BEEN MADE, WHICHEVER IS LATER.
WITHDRAWAL WILL BE WITHOUT ANY FURTHER LIABILITY TO ANY
PERSON. TO ACCOMPLISH THIS WITHDRAWAL, A SUBSCRIBER
NEED ONLY SEND A LETTER OR TELEGRAM TO THE COMPANY AT
THE ADDRESS SET FORTH IN THIS CONFIDENTIAL TERM SHEET
INDICATING HIS INTENTION TO WITHDRAW.
FOR RESIDENTS OF ALL STATES: THE SHARES OFFERED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF CERTAIN
STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE ON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID
ACT AND SUCH LAWS. THE SHARES ARE SUBJECT IN VARIOUS
STATES 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. THE SHARES HAVE
NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION
OR OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE
FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE
MERITS OF THIS OFFERING OR THE ACCURACY OF ADEQUACY OF
THE CONFIDENTIAL TERM SHEET. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
10. No Waiver. Notwithstanding any of the representations,
warranties, acknowledgements 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.
11. Revocation. The Undersigned agrees that he shall not
cancel, terminate or revoke this Subscription Agreement or any
agreement of the Undersigned made hereunder other than as set forth
under Section 9 above, and that this Subscription Agreement shall survive
the death or disability of the Undersigned.
12. 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.
13. Miscellaneous.
(a) 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.
(b) The provisions of this Subscription Agreement shall
survive the execution thereof.
14. Certification. The Undersigned certifies that he has read
this entire Subscription Agreement and that every statement on his part
made and set forth herein is true and complete.
IN WITNESS WHEREOF, the Undersigned has executed this
Subscription Agreement on the date his signature has been subscribed
and sworn to below.
Witness: /s/C.B. Pearlman /s/Jeffrey T. Katz
Jeffrey T. Katz
STATE OF FLORIDA )
)SS:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 12 day
of June, 1996 by Jeffrey T. Katz, who is personally known to me or who
has produced ____________________ as identification and who did/did
not take an oath.
Notary Public:
Sign /s/ Kirsten E. Johnson
Print Kirsten E. Johnson
State of Florida at Large (Seal)
My Commission Expires: March 14,1999
Commission # CC 445227
Accepted as of the 12 day of June, 1996
AQUAGENIX, INC.
By: /s/ Andrew Chesler
Andrew P. Chesler President