EXHIBIT 4.6
Form of Subscription Agreement by and between the
Registrant and certain food brokers
dated as of June 25, 2002
SUBSCRIPTION AGREEMENT
TO: Galaxy Nutritional Foods, Inc.
0000 Xxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
1. SUBSCRIPTION FOR SHARES. Each of the undersigned subscribers (each and
collectively, "Subscriber") hereby subscribes for and agrees to purchase a total
of __________ shares of common stock, $0.01 par value (the "Shares"), of Galaxy
Nutritional Foods, Inc., a Delaware corporation (the "Company"), in
consideration of services rendered to the Company in the amount of $4.08 per
share to the Company pursuant to a Food Service Brokerage Agreement between
Subscriber and the Company dated as of June 25, 2002.
2. REPRESENTATIONS AND WARRANTIES. Subscriber understands and acknowledges
that the Shares are being offered and sold under the exemption from registration
provided for in the Securities Act of 1933, as amended (the "Act"), including
Regulation D promulgated thereunder, that it is purchasing the Shares without
being furnished any offering literature or prospectus, that this transaction has
not been scrutinized by the United States Securities and Exchange Commission
(the "SEC") or by any administrative agency charged with the administration of
the securities laws of any state because of the small number of persons
solicited and the private aspects of the offering, that all documents, records
and books pertaining to the Company and this investment have been made available
to Subscriber and its representatives, including its attorney, its accountant
and/or its purchaser representative, that the books and records of the Company
will be available upon reasonable notice for inspection by Subscriber during
reasonable business hours at the Company's principal place of business, and that
Subscriber has had access to and the opportunity to request information from and
ask questions of Xx. Xxxxxx Xxxxxx, the President of the Company. Subscriber
hereby further represents and warrants as follows:
a. Subscriber understands that the Shares are speculative investments
with a high degree of risk of loss and that Subscriber must be
prepared to lose its entire investment in the Company. Such risks
include, but are not limited to, the Company's limited operating
history, the possible need for additional financing in order to
continue operations, the sale and issuance of additional stock in
offerings currently being conducted and contemplated in the immediate
future by the Company and the dilution such additional offerings will
create for the Company's shareholders, intense competition in the
industry and the competitive advantages of existing companies in the
industry, and the limitations on the ability of Subscriber to transfer
the Shares.
b. Subscriber hereby acknowledges that the Shares have not been approved
or disapproved by the SEC or any other federal or state governmental
authority nor has the SEC or any such federal or state governmental
authority passed upon the accuracy or adequacy of any of the
information provided by the Company to Subscriber regarding the
Company, the Shares or any other related matter.
c. Subscriber acknowledges that the Shares have not been registered under
the Act, the Florida Securities and Investor Protection Act or the
laws of any other jurisdiction and that the Shares cannot be sold or
transferred by Subscriber unless they are subsequently registered
under applicable law or an exemption from registration is available.
The Company is not required and does not intend to register or assist
in the registration of the Shares or make any exemption from
registration available. No rule of the SEC under the Act is presently
available to allow resale of the Shares and there is no assurance one
may be available in the future. Subscriber acknowledges that there may
be no public market
for the Shares and that Subscriber is able (i) to bear the economic
risk of this investment, (ii) to hold the Shares indefinitely, and
(iii) presently to afford a complete loss of this investment;
Subscriber has adequate means of providing for current needs and
personal contingencies, and has no need for liquidity in this
investment.
d. If Subscriber is a resident of the State of Florida, it acknowledges
that the purchase of Shares is voidable by Subscriber without
incurring any liability to the Company or any other person within
three (3) days of making such purchase, in which case all funds will
be refunded without interest or deduction.
e. Subscriber has such knowledge and experience in financial and business
matters that it and such representative are capable of evaluating the
merits and risks of an investment in the Shares and of making an
informed investment decision. The undersigned represents that the
undersigned has such knowledge and experience in financial and
business matters that the undersigned is capable of evaluating the
merits and risks of an investment in the Shares and in the Company,
and of making an informed investment decision, and is not utilizing
any other person in connection with evaluating such merits and risks.
The undersigned offers as evidence the undersigned's knowledge and
experience in these matters the information requested in this
Subscription Agreement and the related subscription documents attached
hereto.
f. Subscriber confirms that, in making its decision to purchase the
Shares, it has relied solely upon independent investigations made by
it and/or by its representatives, including its own professional tax
and other advisors and that it and such representatives and advisors
have been given the opportunity to ask questions of, and to receive
answers from, persons acting on behalf of the Company concerning this
investment and the terms and conditions of purchasing the Shares, and
to obtain any additional information or documents to the extent such
persons possess such information or documents or can acquire them
without unreasonable effort or expense, and that the Company or
persons acting on behalf of the Company have furnished all such
additional information and documents to Subscriber and/or its
representatives.
g. The Company has not made, and Subscriber has not relied upon, any
statements, representations or warranties regarding the Company, its
business or any other related information that are not contained in
executed written agreements between Subscriber and the Company.
h. The Shares are being acquired by Subscriber in good faith solely for
its own personal account, for investment purposes only, and are not
being purchased for resale, resyndication, distribution, subdivision
or fractionalization thereof; Subscriber has no contract or
arrangement with any person to sell, transfer or pledge to any person
the Shares or any part thereof, any interest therein or any rights
thereto; Subscriber has no present plans to enter into any such
contract or arrangement; and it understands that as a result it must
bear the economic risk of the investment for an indefinite period of
time because the Shares have not been registered under the Act and,
therefore, cannot be sold unless they are subsequently registered
under the Act (which the Company is not obligated to do, and has no
present intention of doing) or unless an exemption from such
registration is available.
i. Subscriber understands that no federal or state agency has passed on
or made any recommendation or endorsement of the Shares and that the
Company is relying on the truth and accuracy of the representations,
declarations and warranties herein made by
Subscriber in offering the Shares for sale to it without having first
registered the same under the Act.
j. Subscriber is an "accredited investor," as such term is defined in
Regulation D under the Act, because Subscriber meets the
qualifications indicated in Section 5 of the Investor Questionnaire
attached hereto and incorporated herein. The Subscriber has attached
to this Agreement the Investor Questionnaire which has been duly and
properly completed and executed by the Subscriber.
3. RESTRICTED SECURITIES; LEGEND. Subscriber agrees that it will not sell
or offer to sell or transfer the Shares or any part thereof or interest therein
without registration under the Act, the Florida Securities and Investor
Protection Act and applicable state securities laws or an exemption from such
registration or pursuant to Rule 144 or Rule 144A of the Act. Subscriber
understands and acknowledges that the Shares purchased hereunder will bear a
legend substantially in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, THE FLORIDA SECURITIES AND INVESTOR
PROTECTION ACT OR THE LAWS OF ANY OTHER STATE AND WERE SOLD PURSUANT TO
EXEMPTIONS FROM REGISTRATION UNDER THAT ACT AND SUCH STATE LAWS. THESE
SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THAT ACT AND SUCH
STATE LAWS AS MAY BE APPLICABLE, OR PURSUANT TO RULE 144 OR 144A UNDER SUCH
ACT, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION
IS NOT REQUIRED.
The undersigned acknowledges that the undersigned is aware that there are
substantial restrictions on the transferability of the Shares. Since the Shares
will not be registered under the Securities Act, the Shares may not become so
registered. The undersigned agrees that the Shares may not be sold in the
absence of registration unless such sale is exempt from registration under the
Securities Act. The undersigned also acknowledges that the undersigned shall be
responsible for compliance with all conditions on transfer imposed by any
Commissioner of Securities of any state and for any expenses incurred by the
Company for legal or accounting services in connection with reviewing such a
proposed transfer or issuing opinions in connection therewith.
4. NO ASSIGNMENT. This Subscription Agreement is not transferable or
assignable by Subscriber without the express written consent of the Company.
5. NO ADVICE. Subscriber acknowledges and agrees that any information
furnished by the Company does not constitute investment, accounting or legal
advice. Subscriber is relying on its own professional advisors for such advice.
6. INDEMNIFICATION. Subscriber recognizes that the offer and sale of the
Shares to it were based upon the agreements, representations and warranties
contained in this Agreement and Subscriber hereby agrees that if it breaches any
agreement, representation or warranty it has made herein, it shall indemnify and
hold harmless the Company and its officers, directors, attorneys, agents,
representatives, and any person controlling any of them against any and all
claims, actions, liability, loss, damage or expense (including attorneys' and
paralegals' fees and costs of investigating and litigating claims) caused,
directly or indirectly, by its breach.
7. ACCEPTANCE OR REJECTION OF SUBSCRIPTION. The Subscriber understands,
acknowledges and agrees that Company shall have the right to accept or reject
this subscription, in whole or in part, and this subscription shall be deemed to
be accepted by the Company only when a copy of the signature page of
this Agreement is executed by the Company. Subscriptions need not be accepted in
the order received by the Company.
8. POWER OF ATTORNEY. In order to induce the Company to accept the
subscription of the undersigned, the undersigned hereby irrevocably constitutes
and appoints the Company, with full power of substitution, the undersigned's
true and lawful attorney for the undersigned and in the undersigned's name,
place, and stead and for the undersigned's use and benefit, to execute any
documents necessary to correct or complete the undersigned's subscription
documents in accordance with the apparent intent thereof. The undersigned hereby
agrees to be bound by any representations made by the Company or its authorized
agents, employees, or substitutes acting pursuant to this Power of Attorney, and
the undersigned hereby waives any and all defenses which may be available to the
undersigned to contest, negate, or disaffirm their actions or the actions of
their substitutes under this Power of Attorney. The powers herein granted are
granted for the sole and exclusive benefit of the undersigned and not on behalf
of any other person, in whole or in part. This Power of Attorney is hereby
declared to be irrevocable and a power coupled with an interest which will
survive the death, disability, dissolution, bankruptcy, or insolvency of the
undersigned.
9. TAXPAYER IDENTIFICATION NUMBER. The undersigned verifies under penalties
of perjury that the Social Security Number or Taxpayer Identification Number
shown on the Signature Page is true, correct and complete and that the
undersigned is not subject to backup withholding.
10. INVESTOR QUESTIONNAIRE. The undersigned has attached to this
Subscription Agreement, the Investor Questionnaire which has been duly and
properly completed and executed by the undersigned.
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as
of the 25th day of June 2002.
"Company"
Galaxy Nutritional Foods, Inc.
By:
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Authorized Officer
Name(s) exactly as you wish "Subscriber(s)"
your interest in the Company
to be registered. (1)
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(Please print)
(2)
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(Please print)
Signatures. (1)
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(Signature)
(2)
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(Signature)
Primary Residence. (1)
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(2)
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Mailing Address (if different (1)
from above). ----------------------------------
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(2)
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Social Security or Tax (1)
Identification Number (2)
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The shares shall be issued to the Subscriber in the following capacity: ( )
Individual, ( ) Joint Tenancy, ( ) Joint Tenants with Right of Survivorship, ( )
Tenants by the Entireties, ( ) Husband and Wife as community property, ( )
Tenants in Common, ( ) Trust, ( ) Uniform Gift to Minors Act, or ( ) other:
___________________________.
Name of Subscriber: ____________________________
INVESTOR QUESTIONNAIRE
The offer and sale of securities of Galaxy Nutritional Foods, Inc. (the
"Company"), is not being registered under the Securities Act of 1933, as amended
(the "Act") or qualified under state securities laws, in reliance upon
exemptions from such registration and qualification requirements for
transactions not involving any public offering. Information supplied through
this Questionnaire will be used to ensure compliance with the requirements of
such exemptions.
The undersigned Subscriber represents and warrants to the Company and
placement agents that:
(a) The information contained herein is complete and accurate and may be
relied upon by the Company and any placement agents; and
(b) Subscriber will notify the Company and any placement agents immediately
of any material change in any information contained herein occurring prior to
the acceptance or rejection of the Subscriber's subscription for shares of
Common Stock in the Company.
ALL INFORMATION ON WILL BE TREATED CONFIDENTIALLY
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(Please print and attach additional pages where necessary to fully answer
questions.)
INSTRUCTIONS:
Please answer each question in this Questionnaire as applicable, concerns
investors who are "accredited," as that term is defined and construed pursuant
to Regulation D under the Act.
IF THE INVESTOR IS A PARTNERSHIP, PLEASE ATTACH AN EXECUTED COPY OF THE
PARTNERSHIP AGREEMENT AND ALL AMENDMENTS THERETO.
IF THE INVESTOR IS A CORPORATION, PLEASE ATTACH A COPY OF THE ARTICLES OF
INCORPORATION AND A BOARD OF DIRECTORS RESOLUTION (CERTIFIED BY THE SECRETARY OF
THE CORPORATION) AUTHORIZING THE INVESTMENT.
IF THE INVESTOR IS A TRUST, PLEASE ATTACH A COPY OF THE TRUST AGREEMENT AND
ALL AMENDMENTS THERETO.
1. FOR INDIVIDUAL INVESTORS ONLY:
Initial ___ (a) I certify that I have an individual net worth, or my spouse
and I have a combined net worth, in excess of $1,000,000.
For purposes of this Questionnaire, "net worth" means the
excess of total assets at fair market value (excluding
homes, home furnishings, and automobiles) over total
liabilities.
Or
Initial ___ (b) I certify that I had individual income, exclusive of any
income attributable to my spouse, of more that $200,000 in
each of the last two completed calendar years, and I
reasonably expect to have an individual income in excess of
$200,000 during the current calendar year.
Or
Initial ___ (c) I certify that my spouse and I had joint income of more that
$300,000 in each of the last two completed calendar years,
and reasonably expect to have joint income in excess of
$300,000 during the current calendar year.
2. FOR CORPORATIONS, BUSINESS TRUSTS, OR PARTNERSHIPS:
Initial ___ (a) Subscriber certifies that it was not formed for the specific
purpose of acquiring the Securities and that Subscriber has
total assets in excess of $5,000,000.
Or
Initial ___ (b) Subscriber certifies that all of its equity owners are
accredited investors under either, 1(a) above (i.e.
$1,000,000 net worth) or 1(b) or 1(c) above (i.e. $200,000
individual or $300,000 joint income).
DATED: _________________, _____.
SIGNATURE FOR PARTNERSHIP, TRUST,
SIGNATURE FOR INDIVIDUAL SUBSCRIBER: CORPORATION, OR OTHER ENTITY:
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(Signature) (Signature)
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(Print Name of Subscriber) (Print Name of Subscriber)
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(Signature of Joint Subscriber, if any) (Print Name of Person Signing)
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Print Name of Joint Subscriber, if any) (Title)
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Country of Citizenship
