SUBSCRIPTION AGREEMENT
EXHIBIT
10.1
000
Xxxxxxxx Xxxxxxx 000 Xxxxx
P. O. Xxx
0000
Xxxxxxxx
XX 00000
Ladies
and Gentlemen:
The
undersigned hereby subscribes for up to10,000 shares (in whole or in part, the
“Shares”) of Habersham Bancorp (“Habersham”) Series A Non-Cumulative
Perpetual Preferred Stock, of which 3,000 Shares will be issued on or before
December 31, 2008 and the remainder will be issued, in whole or in part, at such
future time(s) as Habersham may elect in its sole discretion. The
undersigned agrees to pay $1,000 per share of Series A Preferred Stock for
a total of $10,000,000 for the Shares, of which $3,000,000 is tendered herewith
and the remainder will be tendered, in whole or in part, upon demand by
Habersham, on or before the issuance date(s) of the remainder of the
Shares. The undersigned has enclosed a check in the amount of
$3,000,000 made payable to “Habersham Bancorp,” initiated a wire transfer to
Habersham, or submitted a written request to Habersham for an ACH debit to the
undersigned’s deposit account at Habersham Bank, all of which represent payment
in full for 3,000 Shares, and will render payment in the same manner with
respect to such future issuances as may be made pursuant to the terms of this
Subscription Agreement.
The
undersigned agrees that, unless otherwise required under applicable law or
permitted at the sole discretion of Habersham, this subscription is binding upon
the undersigned and is irrevocable. The undersigned acknowledges that
this Subscription Agreement shall not constitute a valid and binding obligation
of Habersham unless and until accepted by Habersham in writing, and that
Habersham has the right to reject this Subscription Agreement, either in whole
or in part, in its sole discretion.
In
connection with the current and each future purchase of the Shares, the
undersigned hereby represents and warrants as follows:
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1.
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The
Shares are being purchased for the undersigned’s own account without the
participation of any other person, with the intent of holding the Shares
for investment and without the intent of participating, directly or
indirectly, in a distribution of the Shares, and not with a view to, or
for resale in connection with, any distribution or public offering of the
Shares or any portion of the Shares within the meaning of the Securities
Act of 1933 (the “1933 Act”) or the securities laws of any state
applicable to the undersigned, nor is the undersigned aware of the
existence of any distribution or public offering or advertisement in
connection with the offer and sale of Habersham’s
securities.
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2.
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The
undersigned has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the
purchase of the Shares as contemplated by this subscription agreement and
of protecting its interests in connection
therewith.
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3.
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The
Shares were not offered to the undersigned by means of publicly
disseminated advertisements or sales literature, nor is the undersigned
aware of any offers made to other persons by such
means.
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4.
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The
undersigned has had a chance to review Habersham’s filings with the
Securities and Exchange Commission and to ask additional questions and/or
obtain additional information requested. In making this
investment, the undersigned has relied solely upon its independent
investigation.
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5.
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The
undersigned is an accredited investor as that term is defined in Rule
501(a) promulgated by the Securities and Exchange Commission under the
1933 Act.
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6.
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Other
than as set forth in this agreement, the undersigned confirms that no
representations or warranties have been made to the undersigned, and that
the undersigned has not relied upon any representation or warranty in
making or confirming its
subscription.
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7.
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The
undersigned further understands and
acknowledges:
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a. The
Shares are being (i) issued and sold without registration under any state
or federal law relating to the registration of securities for sale and
(ii) issued and sold in reliance on certain exemptions from registration
under applicable state and federal laws.
b. The
Shares cannot be offered for sale, sold or transferred by the undersigned other
than pursuant to (i) an effective registration under any applicable state
securities law or in a transaction which is otherwise in compliance with such
laws, (ii) an effective registration under the 1933 Act or in a transaction
otherwise in compliance with the 1933 Act, and (iii) evidence satisfactory
to Habersham of compliance with the applicable securities laws of all applicable
jurisdictions. Habersham shall be entitled to rely upon an opinion of
counsel satisfactory to it with respect to compliance with the above
laws.
x. Xxxxxxxxx
will be under no obligation to register the Shares or to comply with any
exemption available for sale of the Shares without
registration. Habersham is under no obligation to act in any manner
so as to make Rule 144 of the 1933 Act available with respect to the
Shares.
x. Xxxxxxxxx
may, if it so desires, refuse to permit the transfer of the Shares unless the
request for the transfer is accompanied by an opinion of counsel acceptable to
Habersham to the effect that neither the sale nor the proposed transfer will
result in any violation of the 1933 Act or the securities laws of any other
jurisdiction. Further, the undersigned understands that it will be
responsible for paying legal fees for securing the legal opinions required to
effect any transfer or exchange of the Shares.
x. Xxxxxxxxx,
or its successor, may place the following legend on each certificate
representing the Shares to ensure that a prospective transferee is aware of the
transfer restrictions:
“The
securities evidenced by this certificate have not been registered under the
Securities Act of 1933, as amended (the “Act”), or applicable state securities
laws (the “State Acts”), and may not be offered, sold or otherwise transferred,
pledged or hypothecated unless and until registered under the Act, the State
Acts and any other applicable securities laws unless Habersham Bancorp
determines that such offer, sale, transfer, pledge or hypothecation is exempt
from registration or is otherwise in compliance with the Act, the State Acts and
any other applicable securities laws. In reaching its determination,
Habersham Bancorp may require an opinion of counsel which is satisfactory to
Habersham Bancorp.”
x.
Xxxxxxxxx also intends to place the foregoing legend on certificates
representing shares of its Series A Preferred Stock issued upon transfer or
exchange of the Shares initially issued in connection with this subscription and
upon any subsequent transfer or exchange unless advised by counsel to Habersham
that, in the opinion of such counsel, placing the legend on the certificates is
not required.
g. The
Shares are not deposits or savings accounts and are not insured by the Federal
Deposit Insurance Corporation or any other government agency and are subject to
loss of value.
Acceptance
by the undersigned of the certificate representing the Shares shall constitute a
confirmation by the undersigned that all agreements and representations made by
it in this Subscription Agreement shall be true and correct at such
time. In making this investment, the undersigned has relied solely
upon its independent investigation.
Under the penalties of perjury, the
undersigned certifies that: (1) the Taxpayer Identification
Number given below is correct; and (2) it is not subject to backup
withholding.
This Subscription Agreement shall be
construed in accordance with and governed by the laws of the State of Georgia,
without regard to the principles of conflict of law. This agreement
constitutes the full and entire agreement and understanding of the parties to
this agreement with respect to the subjects hereof and supersedes all previous
discussions and agreements, if any, of the parties hereto with respect to the
subject matter of this agreement. No party shall be liable for or
bound in any other manner by any representations, warranties, covenants or
agreements except as specifically set forth in this agreement.
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remainder of this page has been intentionally left blank)
SUBSCRIPTION
AGREEMENT SIGNATURE PAGE
IN
WITNESS WHEREOF, the undersigned has executed this Subscription Agreement this
31st day of December, 2008, and hereby certifies that the foregoing information
is true and complete as of the date hereof.
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To
be completed by Habersham Bancorp:
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To
be completed by the subscriber for the Shares:
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ACCEPTED:
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FIELDALE
FARMS, INC.
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By:
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Signature:
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/s/ Xxxxx X. Xxxxxxx
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Signature:
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/s/Xxx Xxxxxxx
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Chief
Executive Officer
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Print
Name: Xxx Xxxxxxx
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Print
Name: Xxxxx X. Xxxxxxx
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December
31, 2008
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Date:
December 31, 2008
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Tax
I.D.: 00-0000000
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