SUBSCRIPTION AGREEMENT AND INVESTMENT REPRESENTATION
Exhibit 10.11
AND INVESTMENT REPRESENTATION
CONFIDENTIAL
Xx. Xxxxxx X.
Xxxx
American Home Foods, Inc.
Investors Relations and Legal Affairs
00 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxxx:
This letter will acknowledge that the undersigned hereby irrevocably subscribes to purchase shares of common stock in American Home Food Products, Inc. (the “Company”) as set forth below for a purchase price of $.15 per share (“Common Stock”) price set forth herein. The Company is offering (the “Offering Shares”) pursuant to the Company’s publicly-filed reports with the United States Securities and Exchange Commission (“SEC Reports”). The undersigned has received and reviewed the SEC Reports and is not relying upon any statement, representation or information that is not expressly set forth therein. The undersigned hereby agrees to be bound by all the provisions of this Agreement and further agrees that this Subscription Agreement may be rejected by the Company, in whole or in part, and is irrevocable, except as otherwise provided under applicable law.
The undersigned, and its representatives (as defined below), should it elect to seek the advice of a representative, understands that the Offering Shares being offered are not subject to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”) and applicable state securities laws (“State Acts”), although the Company intends to register for resale all Offering Shares and may include other shares in the registration statement. It is further understood that the Offering Shares are being made pursuant to a limited number of accredited investors in reliance on exemptions provided by Section 4(2) of the Securities Act and applicable exemptions under State Acts. The undersigned further understands that no governmental authority has made any finding or determination relating to the fairness or the merits of the Offering.
The undersigned also understands that the representations, understandings and agreements of the undersigned set forth herein are being relied upon by the Company in connection with the offer and sale of the Offering Shares to qualify such offer and sale for exemptions from registration under the Securities Act and the State Acts. The undersigned understands that the information
supplied in this Agreement will be disclosed to no one other than the Company and its financial advisors, counsel and accountants without the undersigned’s consent, unless it is necessary for the Company to use such information to support the exemption from registration which it claims under the Securities Act and the State Acts, or any other lawful purpose.
I. REPRESENTATIONS, WARRANTIES AND COVENANTS
In order to induce the Company to permit the undersigned to purchase all, or a designated number of the Offering Shares, the undersigned hereby warrants and represents to the Company, as follows:
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(A) |
The undersigned’s name is: (please type or print) |
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Xxxxxx Xxxxxxxx, Jr. |
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(B) The address of the undersigned’s principal place of business is: 00 Xxxxxx Xxxx, Xxxxx Xxxxxxxxx, Xxxxxxx 00000 (please type or print)
(C) The undersigned is a natural person __x__, or a non-natural person (specific whether corporation, partnership, trust, LLC) __________________ duly formed and validly existing under the laws of the state of __________________. (describe the legal entity making the purchase).
(D) The undersigned and its representatives, if any, have had full and complete access to all SEC Reports regarding the offer and sale of the Offering Shares and all of the documents referred to therein and have reviewed the same. The undersigned is particularly familiar with the portion of any SEC Report titled “Risk Factors” and that the pro forma forward looking information. The undersigned understands that it may not rely on any information or representations that are not contained in the SEC Reports.
(E) The undersigned acknowledges that it, along with its attorney, accountant and any other person(s) it has retained to advise it with respect to this investment (collectively, “representatives”), have had the opportunity to ask questions of and receive answers from representatives of the Company concerning the Offering Shares. The undersigned further acknowledges that the undersigned was informed that all documents, records and books pertaining to the Offering and the Company were at all times available to it. All such documents, records and books requested by it have been made available to it and its representatives. The undersigned and its representatives have been supplied with all additional information concerning the Offering Shares and the Company as they have requested.
(F) The undersigned acknowledges that it, or its representatives, have enough knowledge and experience in financial and business matters to evaluate the merits and risks of the investment.
(G) The undersigned is able to bear the economic risk of an investment in the Offering Shares including the risk of losing part or all of its investment in the Offering Shares.
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(H) The undersigned’s financial condition is such that the undersigned is under no present or contemplated future need to dispose of all or any portion of the Offering Shares to satisfy any existing or contemplated undertaking, need or indebtedness.
(I) The undersigned understands the illiquid nature of this investment and acknowledges that the Offering Shares is subject to restrictions on transfer imposed by the Securities Act and the State Acts.
(J) The undersigned is purchasing the Offering Shares for its own account for investment and not with a view to divide, resell, or distribute all or any portion of the Offering Shares.
(K) The undersigned agrees that the Offering Shares it purchases may not be offered, sold or otherwise transferred unless the offer and sale is made pursuant to: (i) an effective registration statements under the Securities Act, (ii) an exemption from registration under the Securities Act or in a transaction that does not otherwise require registration under the Securities Act or any State Act, and an opinion of counsel reasonably satisfactory to the Company has been provided to that effect.
(L) The undersigned understands and acknowledges that upon the original issuance thereof, and until such time as the same is no longer required under applicable requirements of the Securities Act or the State Acts, certificates representing the Offering Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear a legend similar to the following:
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“THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ‘SECURITIES ACT’), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS (i) THE OFFER AND SALE IS MADE PURSUANT TO EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR IN A TRANSACTION THAT DOES NOT OTHERWISE REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY HAS BEEN PROVIDED TO THAT EFFECT; OR (ii) THE OFFER AND SALE IS REGISTERED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.” |
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Check if applicable: |
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x |
The undersigned is an “accredited investor” within the meaning of Rule 501(a) of Regulation D of the Securities Act because it is (please check all of the following that are applicable): |
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A bank as defined in Section 3(a)(2) of the Securities Act, or a savings and bank loan association or other institution as defined in Section 3(a)(5)(A) of the |
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Securities Act whether acting in its individual or fiduciary capacity; a broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934; an insurance company as defined in Section 2(13) of the Securities Act; an investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Act; a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; a plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000; an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, if the investment decision is made by a plan fiduciary as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors; |
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A private business development company under Section 202(a)(22) of the Investment Advisers Act of 1940; |
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An organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; |
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A director, executive officer, or general partner of the issuer of the securities being offered or sold, or a director, executive officer, or general partner of a general partner of the issuer; |
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A trust with total assets in excess of $5,000,000 not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Section 230.506(b)(2)(ii) of Regulation D; and |
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An entity in which all of the equity owners are accredited investors. |
II. SUBSCRIPTION
The undersigned hereby agrees to purchase 100,000 Offering Shares for $.15 per share pursuant to the terms, conditions and representations set forth in the Memorandum for an aggregate purchase price of $15,000.00.
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III. PAYMENT OF SUBSCRIPTION AND CONDITIONS TO PURCHASE
The undersigned agrees that in addition to completing and executing this Subscription Agreement, it must submit the executed Subscription Agreement along with a check payable for the full amount of the subscription to the order of AHF Acquisition Corporation (for the benefit of American Home Food Products, Inc.), 00 Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000. If the undersigned shall elect to make payment for the subscription by wire transfer any such transfer shall be pursuant to written wire instructions to be furnished by the Company.
The Subscription Agreement shall be deemed accepted by the Company and become binding on the parties upon the Company’s delivery of a fully executed copy of the Subscription Agreement to the undersigned acknowledging its acceptance of the Agreement. In the event the Company accepts the undersigned’s Subscription Agreement the purchase of the Offering Shares will be irrevocable.
IV. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and to the successors and assigns of the Company and to the personal and legal representatives, successors and permitted assignees of the undersigned. The undersigned specifically understands that it shall not assign, or transfer this Subscription Agreement or any right or obligation arising thereunder to any person, natural or non-natural, without the Company’s prior written consent.
V. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to the New York choice of law provisions and to the extent it involves any United States statute, in accordance with the laws of the United States. Any action or proceeding arising hereunder or to enforce this Agreement shall be brought exclusively in the federal or state courts situated in the County of New York, State of New York and the parties hereby irrevocably consent to the exclusive jurisdiction and venue of those courts for such purposes.
VI. INDEMNIFICATION
The undersigned agrees to indemnify and hold harmless the Company, any corporation or entity affiliated with Company and all of its officers, directors and employees of any of the foregoing and any attorneys or other advisors thereto, from and against any and all loss, damage, liability or expense, including costs and reasonable attorneys’ fees, to which they or the Company may incur by reason of or in connection with any misrepresentation made by the undersigned, any breach of any warranties, or the undersigned’s failure to fulfill any of the undersigned’s covenants or agreements under this Agreement.
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VII. NOTICE
Any notice required to be given under this Agreement shall be sufficient if in writing and sent by registered or certified mail, return receipt requested, or by telex or facsimile at the respective addresses set forth below for the Company or at the name and address appearing in Section I (A) and (B) above for the undersigned or such other address or addresses as may be designated by a party to the other in writing. Any such notice shall be effective when delivered by hand or when received by the party being noticed.
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If to the Company: |
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00 Xxxxxx Xxxx |
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Xxxxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 |
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Telephone - 000-000-0000 |
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Facsimile – 914-337-0846 |
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Email – xxxxx@xx.xxxxxx.xxx |
VIII. MISCELLANEOUS
It is understood and agreed that this Subscription Agreement constitutes the full, complete and final expression of the parties’ understanding with respect to the subject matter hereof and that any and all negotiations and representations not included herein or referred to herein are hereby abrogated, and that this Agreement may only be changed, amended or modified, in writing, signed by all parties hereto.
This Agreement may be executed in one or more counterparts, each of which, when so executed and delivered shall be an original, and all of which together shall constitute one agreement binding upon parties hereto.
If any one clause or clauses shall be deemed illegal or unenforceable for whatever reason, the remaining portion of this Subscription Agreement shall continue to be binding on the parties.
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IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the 12th day of January, 2006.
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Signed in the Presence of: |
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SUBSCRIBER |
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Witness’ Signature |
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Print Name of Subscriber |
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Employer Identification Number |
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Signature |
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Name and Title of Signator |
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100,000 |
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Number of Units Subscribed for: |
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$15,000.00 |
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Total Purchase Price: |
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Method of Payment: |
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Wire |
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Personal check |
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Certified check |
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Bank check |
(check one)
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Corporation |
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Limited Liability Company |
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Partnership |
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Trust |
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Individual |
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Other (please specify) |
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Accepted by Issuer: |
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By: |
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