Subscription Agreement - eMerge Vision Systems Inc. and XL Vision Inc.
eMerge Vision Systems, Inc.
10315 102nd Terrace
Sebastian, FL 32958
Gentlemen:
The undersigned subscriber ("Subscriber") hereby subscribes for and
agrees to purchase Two Million Four Hundred thousand (2,400,000) shares of the
Series B Junior Preferred Stock, $..01 par value per share, (the "Shares") of
eMerge Vision Systems, Inc. (the "Company") for an aggregate purchase price of
$4,800,000.
Upon your acceptance of this subscription, Subscriber will cancel the
debt of the Company to the Subscriber in the amount of the purchase price
against issuance to Subscriber of a certificate representing the Shares, which
shall be free and clear of all liens, mortgages, pledges, security interests and
other encumbrances except as set forth herein or as provided for in the Articles
of Incorporation of the Company, and which shall be fully paid and
non-assessable.
Subscriber hereby represents, warrants and acknowledges to the Company
and agrees with the Company as follows:
1. Subscriber is acquiring the Shares solely for its own
account without a view to the distribution or resale thereof;
2. The Shares are not being sold by the Company pursuant to
any registration under the Securities Act of 1933, the Florida Securities Laws
or any other applicable state securities laws (collectively, the "Securities
Laws"). The Shares are being sold in reliance upon exemption from registration
under such laws, and Subscriber understands that it may not sell, transfer or
otherwise dispose of any or all of the Shares except pursuant to an effective
registration under the applicable Securities Laws or upon its delivery to the
Company of an opinion of counsel that the sale or disposition is exempt from
registration under the applicable Securities Laws. Subscriber understands that
the foregoing transfer restrictions are in addition to any transfer restrictions
set forth in the Company's Certificate of Incorporation and any contractual
transfer restrictions to which Subscriber may agree. A legend will be placed on
the certificates evidencing the Shares Subscriber is purchasing hereby, and
stop-transfer instructions will be issued to the transfer agent of the Shares to
insure compliance with the provisions of the Securities Laws.
3. Unless otherwise expressly agreed to in writing by the
Company, the Company has no obligation or intention to effect a registration of
the Shares for resale by Subscriber, and Subscriber must therefore hold the
Shares indefinitely unless a registration covering the Shares is effected or an
exemption from registration is available.
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4. Subscriber (a) can bear the economic risk of the purchase
of the Shares, including the total loss of its investment, (b) has no need for
liquidity in this investment, and, (c) has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the Company and the investment in the Shares.
5. Prior to the execution of this Agreement, Subscriber and
its attorneys, accountants, and other advisers, if any, have: (a) been provided
with full and free access and opportunity to inspect, review, examine and
inquire about all books, records and information (financial or otherwise) of the
Company, its business and affairs, and have made such inspection, review,
examination and inquiry as they have deemed appropriate; and (b) been offered
the opportunity to ask such questions and obtain such additional information
concerning the Company and its business and affairs as they have requested so as
to understand the nature of the investment in the Shares and to verify the
accuracy of the information obtained as a result of investigation. Neither the
Company nor any other person has made any representation or warranty of any kind
respecting the Company, its business and affairs. The decision to purchase the
Shares has been made solely on the basis of the information obtained pursuant to
the inspection, review, examination and inquiry referred to in this Section 5
hereof and has not been based on any other information.
6. Subscriber is an accredited investor as defined in
Regulation D under the Securities Act of 1933, and has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of the Company and the investment in the Shares.
Please indicate your acceptance of this subscription by signing and
returning to Subscriber one copy of this letter.
Very truly yours,
XL VISION, INC.
By: /s/: David Szostak
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Vice President and
Chief Financial Officer
ACCEPTED AND AGREED:
eMERGE VISION SYSTEMS, INC.
By: /s/: Charles L. Abraham
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Charles Abraham, President
Dated: April, 1999