Exhibit 4.11
NAME OF SUBSCRIBER: Xxxxxx X. Xxxxxx, Esq.
To: InnoPet Brands Corp.
Xxx Xxxx Xxxxxxx Xxxx., Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: CEO
INNOPET BRANDS CORP.
SUBSCRIPTION AGREEMENT AND INVESTMENT REPRESENTATION
SECTION 1.
1.1 Subscription.
(a) The undersigned, intending to be legally bound, hereby
irrevocably subscribes for and agrees to purchase the amount of units (the
"Units") of InnoPet Brands Corp., a Delaware corporation (the "Company"),
indicated on page 8 hereof, on the terms and conditions described herein and in
the Term Sheet, dated December 2, 1997, a copy of which has been received by the
undersigned. Each Unit consists of (a) a 10% promissory note (the "Note") of the
Company in the principal amount of $25,000; and (b) a warrant (the "Warrant") to
purchase 25,000 shares of the Company's Common Stock, exercisable as of the
Closing and expiring on December 5, 2001 at an exercise price of $6.00 per
share.
(b) The minimum number of Units which may be purchased is one
(1) Unit. Partial Units may be accepted at the discretion of the Company.
1.2 Purchase of Units.
The undersigned understands and acknowledges that the purchase
price to be remitted to the Company in exchange for the Units, if any, shall be
twenty-five thousand dollars ($25,000) per Unit. Payment for the Units shall be
made by certified check or wire transfer in accordance with the instructions of
the Company, together with an executed copy of this Agreement and any other
required documents.
SECTION 2.
2.1 Acceptance or Rejection.
(a) The undersigned understands and agrees that the Company
reserves the right to reject this subscription for the Units in whole or part,
if, in its reasonable judgment, it deems such action in the best interest of the
Company, at any time prior to the applicable Closing (as hereinafter defined),
notwithstanding prior receipt by the undersigned of notice of acceptance of the
undersigned's subscription.
(b) The undersigned understands and agrees that subscriptions
may be revoked provided that written notice of revocation is sent by certified
or registered mail, return receipt requested, and is received by the Company at
least two business days prior to the applicable Closing.
(c) In the event of rejection of this subscription, or in the
event the sale of the Units subscribed for by the undersigned is not consummated
by the Company for any reason (in which event this Subscription Agreement shall
be deemed to be rejected), this Subscription Agreement and any other agreement
entered into between the undersigned and the Company relating to this
subscription shall thereafter have no force or effect and the Company shall
promptly return or cause to be returned to the undersigned the purchase price
remitted to the Company by the undersigned, without interest thereon or
deduction therefrom, in exchange for the Units.
2.2 Closing; Closing Date.
The closing (the "Closing") shall take place at the offices of
the Company or such other place as determined by the Company, on such date as is
set by the Company. The Company's acceptance of the undersigned's subscription
shall be evidenced by the Company's execution of this Agreement. Subsequent
Closings, if any, will be held at such times as are determined by the Company.
At the Closing of the purchase and sale of the Units subscribed to by the
undersigned, the Company shall prepare for delivery to the undersigned a Note
and the certificate for the Warrants to be issued and sold to the undersigned,
duly registered in the undersigned's name against payment in full by the
undersigned of the aggregate purchase price of the Units.
SECTION 3
3.1 Investor Representations and Warranties.
The undersigned hereby acknowledges, represents and warrants
to, and agrees with, the Company and its affiliates as follows:
(a) The undersigned is acquiring the Units for his own account
as principal, not as a nominee or agent, for investment purposes only, and not
with a view to, or for, resale, distribution or fractionalization thereof in
whole or in part and no other person has a direct or indirect beneficial
interest in such Units or any of the components of the Units. Further, the
undersigned does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participations to such person or to
any third person, with respect to any of the Units for which the undersigned is
subscribing or any of the components of the Units.
(b) The undersigned has full power and authority to enter into
this Agreement, the execution and delivery of this Agreement has been duly
authorized, if applicable, and this Agreement constitutes a valid and legally
binding obligation of the undersigned.
(c) The undersigned acknowledges his understanding that the
offering and sale of the Units is intended to be exempt from registration under
the Securities Act of 1933, as amended (the "Securities Act") by virtue of
Section 4(2) of the Securities Act. In furtherance thereof, the undersigned
represents and warrants to and agrees with the Company and its affiliates as
follows:
(i) The undersigned realizes that the basis for the
exemption may not be present if, notwithstanding such
representations, the undersigned has in mind merely acquiring
Units for a fixed or determinable period in the future, or for
a market rise, or for sale if the market does not rise. The
undersigned does not have any such intention;
(ii) The undersigned has the financial ability to bear
the economic risk of his investment, has adequate means for
providing for his current needs and personal contingencies and
has no need for liquidity with respect to his investment in
the Company;
(iii) The undersigned is sophisticated in financial
matters and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of the prospective investment in the Units. If
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other than an individual, the undersigned also represents it
has not been organized for the purpose of acquiring the Units.
(d) The undersigned:
(i) Has been provided an opportunity for a reasonable
period of time prior to the date hereof to obtain information
concerning the offering of the Units, the Company and all
other information to the extent the Company possesses such
information or can acquire it without unreasonable effort or
expense;
(ii) Has been given the opportunity for a reasonable
period of time prior to the date hereof to ask questions of,
and receive answers from, the Company or its representatives
concerning the terms and conditions of the offering of the
Units and other matters pertaining to this investment, and has
been given the opportunity for a reasonable period of time
prior to the date hereof to obtain such additional information
necessary to verify the accuracy of the information provided
in order for him to evaluate the merits and risks of purchase
of the Units to the extent the Company possesses such
information or can acquire it without unreasonable effort or
expense; and
(iii) Has determined that the Units are a suitable
investment for the undersigned and that at this time the
undersigned could bear a complete loss of such investment.
(e) The undersigned understands and agrees that the
certificates for the Warrants shall bear, substantially, the following legend
until (i) such securities shall have been registered under the Securities Act
and effectively been disposed of in accordance with a registration statement
that has been declared effective; or (ii) in the opinion of counsel for the
Company such securities be may sold without registration under the Securities
Act as well as any applicable "Blue Sky" or state securities laws:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME
EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii)
PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN
OPINION OF COUNSEL TO THE
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CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION,
THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE
PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE BLUE SKY OR
SIMILAR SECURITIES LAW."
(f) The undersigned understands that an investment in the
Units is a speculative investment which involves a high degree of risk and the
potential loss of his entire investment.
(g) The undersigned's overall commitment to investments which
are not readily marketable is not disproportionate to the undersigned's net
worth, and an investment in the Units will not cause such overall commitment to
become excessive.
(h) The foregoing representations, warranties and agreements
shall survive the Closing.
SECTION 4.
4.1 Registration Rights.
(a) The Company has agreed to file a suitable registration
statement covering the resale of the shares of Common Stock underlying the
Warrants (the "Warrant Shares"), and the Warrants promptly as practicable after
the Closing Date and to use its best efforts to cause such registration
statement to be declared effective by the Commission within 60 days after the
Closing Date.
(b) The holder(s) of the Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, against all loss, claim,
damage or expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Securities Act, the Exchange Act or otherwise,
arising from written information furnished by or on behalf of such holders, or
their successors or assigns, for specific inclusion in such registration
statement.
4.2 No Short Sales. The undersigned agrees that for a period
of 12 months from the date of Closing he shall not offer, sell, contract to
sell, grant any option to purchase or otherwise dispose of any Common Stock that
the undersigned does not own as of such date.
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SECTION 5.
5.1 Indemnity. The undersigned agrees to indemnify and hold
harmless the Company, its officers and directors, employees and its affiliates
and each other person, if any, who controls any thereof, against any loss,
liability, claim, damage and expense whatsoever (including, but not limited to,
any and all expenses whatsoever reasonably incurred in investigating, preparing
or defending against any litigation commenced or threatened or any claim
whatsoever) arising out of or based upon any false representation or warranty or
breach or failure by the undersigned to comply with any covenant or agreement
made by the undersigned herein or in any other document furnished by the
undersigned to any of the foregoing in connection with this transaction.
5.2 Modification. Neither this Agreement nor any provisions
hereof shall be modified, discharged or terminated except by an instrument in
writing signed by the party against whom any waiver, change, discharge or
termination is sought.
5.3 Notices. Any notice, demand or other communication which
any party hereto may be required, or may elect, to give to anyone interested
hereunder shall be sufficiently given if (a) deposited, postage prepaid, in a
United States mail letter box, registered or certified mail, return receipt
requested, addressed to such address as may be given herein, or (b) delivered
personally at such address.
5.4 Counterparts. This Agreement may be executed through the
use of separate signature pages or in any number of counterparts (and by
facsimile signature), and each of such counterparts shall, for all purposes,
constitute one agreement binding on all parties, notwithstanding that all
parties are not signatories to the same counterpart.
5.5 Binding Effect. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties and
their heirs, executors, administrators, successors, legal representatives and
assigns. If the undersigned is more than one person, the obligation of the
undersigned shall be joint and several and the agreements, representations,
warranties and acknowledgments herein contained shall be deemed to be made by
and be binding upon each such person and his heirs, executors, administrators
and successors.
5.6 Entire Agreement. This Agreement and the documents
referenced herein contain the entire agreement of the parties and there are no
representations, covenants or other agreements except as stated or referred to
herein and therein.
5.7 Assignability. This Agreement is not transferable or
assignable by the undersigned.
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5.8 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without giving
effect to conflicts of law principles.
5.9 Pronouns. The use herein of the masculine pronouns "he",
"him" or "his" or similar terms shall be deemed to include the feminine and
neuter genders as well and the use herein of the singular pronoun shall be
deemed to include the plural as well.
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ALL SUBSCRIBERS MUST COMPLETE THIS PAGE
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
_____ day of December, 1997.
ONE (1) X $25,000 Per Unit = $$25,000
Units Subscribed For Purchase Price
Manner in which Title is to be held (Please Check One):
1. |_| Individual 7. |_| Trust/Estate/Pension or Profit
Sharing Plan
Date Opened:__________________
2. |_| Joint Tenants with Right of 8. |_| As a Custodian for
Survivorship ______________________________
Under the Uniform Gift to
Minors Act of the State of
______________________________
3. |_| Community Property 9. |_| Married with Separate
Property
4. |_| Tenants in Common 10. |_| Xxxxx
5. |_| Corporation/Partnership/ 11. |_| Tenants by the Entirety
Limited Liability Company
6. |_| XXX
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IF MORE THAN ONE SUBSCRIBER, EACH SUBSCRIBER MUST SIGN.
INDIVIDUAL SUBSCRIBES MUST COMPLETE PAGE 9.
SUBSCRIBERS WHICH ARE ENTITIES MUST COMPLETE PAGES 10.
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EXECUTION BY NATURAL PERSONS
----------------------------
Exact Name in Which Title is to be Held
Name:
Xxxxxx X. Xxxxxx, Esq.
Residence:
000 X.X. 0xx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
-----------------------------------------
(Signature)
ACCEPTED this ______ day of December, 1997 on behalf of the Company.
BY:-----------------------------------------
Name:
Title:
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EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
------------------------------------------
(Corporation, Partnership, Trust, Etc.)
Name of Entity (Please Print)
Date of Incorporation or Organization:
State of Principal Offices:
Federal Taxpayer Identification Number:
BY:
TITLE:
[seal]
Attest:
(If Entity is a Corporation)
Address
Taxpayer Identification Number
ACCEPTED this ______ day of December, 1997 on behalf of the Company.
BY:-----------------------------------------
Name:
Title:
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