EXHIBIT 10.45
GREENFIELD ONLINE, INC.
00 XXXXX XXXX
XXXXXX, XX 00000
(000)000-0000
COMMON STOCK PURCHASE SUBSCRIPTION AGREEMENT
$18.40/SHARE
If and when accepted by Greenfield Online, Inc. (the "COMPANY"), this Agreement,
when executed below, will constitute a subscription for that number of shares of
Common Stock of the Company (the "SHARES") specified on page 7 hereof. A
SUBSCRIBER (THE "INVESTOR"), BY EXECUTING BELOW, ACKNOWLEDGES THAT HE
UNDERSTANDS THAT THE COMPANY IS RELYING UPON THE ACCURACY AND COMPLETENESS
HEREOF IN DECIDING WHETHER TO ACCEPT THIS SUBSCRIPTION AGREEMENT AND TO SELL TO
THE INVESTOR AND IN COMPLYING WITH ITS OBLIGATIONS UNDER APPLICABLE SECURITIES
LAWS.
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby represents
and warrants to the Company as of the date of this Agreement as follows:
ABILITY TO BEAR RISK. The Investor is in a financial position to hold the Common
Stock and is able to bear the economic risk and withstand a complete loss of his
investment in the Shares.
UNDERSTANDING OF RISKS. Shareholder is fully aware of (i) the material risks
associated with the Company's business, (ii) the restrictions on transferability
of the Shares, and (iii) the tax consequences of acquiring the Shares.
PROFESSIONAL ADVICE. The Investor has obtained, to the extent he deems
necessary, his own professional advice with respect to the risks inherent in the
investment in the Shares, the condition of the Company and the suitability of
the investment in the Shares in light of his financial condition and investment
needs.
SOPHISTICATION. The Investor, either alone or with the assistance of his
professional advisor, is a sophisticated investor, is able to fend for himself
in the transactions contemplated by this Agreement, and has such knowledge and
experience in financial and business matters that he is capable of evaluating
the merits and risks of the prospective investment in the Common Stock.
SUITABILITY. The investment in the Common Stock is suitable for the Investor
based upon his investment objectives and financial needs, and the Investor has
adequate net worth and means for providing for his current financial needs and
contingencies and has no need for liquidity of investment with respect to the
Common Stock. The Investor's overall commitment to investments which are
illiquid or not readily marketable is not
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disproportionate to his net worth, and investment in the Common Stock will not
cause such overall commitment to become excessive.
ACCESS TO INFORMATION. Shareholder has had access to all information regarding
the Company and its present and prospective business, assets, liabilities and
financial condition that Shareholder reasonably considers important in making
the decision to acquire the Shares, and Shareholder has had ample opportunity to
ask questions of the Company's representatives concerning such matters.
Shareholder has reviewed the Company's most recent reports filed with the
Securities and Exchange Commission (the "SEC"), including the Company's
Prospectus on Form 424(b)(4) filed on December 7, 2004 and its Current Reports
on Form 8-K filed on December 10, 2004 and January 4, 2005, respectively.
PURCHASE ENTIRELY FOR OWN ACCOUNT. The Common Stock will be acquired for
investment for the Investor's own account, not as a nominee or agent, and not
with a view to the distribution of any part thereof; the Investor has no present
intention of selling, granting any participation in or otherwise distributing
the same in a manner contrary to the Securities Act of 1933, as amended (the
"ACT"), or any applicable state securities or Blue Sky law, and the Investor
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 Common Stock.
DUE DILIGENCE. The Investor has been solely responsible for his own due
diligence investigation of the Company and its business, and his analysis of the
merits and risks of the investment made pursuant to this Agreement, and is not
relying on anyone else's analysis or investigation of the Company, its business
or the merits and risks of the Common Stock other than professionals employed
specifically by the Investor to assist the Investor. In taking any action or
performing any role relative to the arranging of the investments being made
pursuant to this Agreement, the Investor has acted solely in his own interest
and no one has acted as an agent or fiduciary for the Investor.
RESTRICTED SECURITIES. The Investor realizes that the Common Stock has not been
registered under the Act, is characterized under the Act as "restricted
securities" and, therefore, cannot be sold or transferred unless it is
subsequently registered under the Act or an exemption from such registration is
available. The Investor's financial condition is such that it is not likely that
it will be necessary to dispose of any of the Common Stock in the foreseeable
future. In this connection, the Investor represents that he is familiar with
Rule 144 of the Securities and Exchange Commission (the "SEC"), as presently in
effect, and understands the resale limitations imposed thereby and by the Act.
EXEMPTION RELIANCE. The Investor has been advised that the Common Stock is not
being registered under the Act or the applicable state securities laws, but is
being offered and sold pursuant to exemptions from such laws, and that the
Company's reliance upon such exemptions is predicated in part on the Investor's
representations contained herein. If other than an individual, the Investor
represents that it has not been organized for the purpose of investing in the
Common Stock.
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FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, the Investor further agrees not to make any
disposition of all or any portion of the Common Stock unless and until: (a)
there is then in effect a registration statement under the Act covering such
proposed disposition and such disposition is made in accordance with such
registration statement; (b) (i) the Investor has notified the Company of the
proposed disposition and has furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, and (ii) the Investor
has furnished the Company with an opinion of counsel, reasonably satisfactory to
the Company, that such disposition will not require registration of such shares
under the Act; or (c) The Company is satisfied that such proposed disposition
complies in all respects with SEC Rule 144 or any successor rule providing a
safe harbor for such dispositions without registration.
RESIDENCY. For purposes of the application of state securities laws, the
Investor represents that he is a bona fide resident of, and is domiciled in, the
state if California.
LEGENDS. Investor acknowledges that the certificates evidencing the Common Stock
will bear a restrictive legend like the following:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE
STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED,
OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (I) THERE IS AN EFFECTIVE
REGISTRATION STATE UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS
COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, (II) THIS
CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF THESE
SECURITIES SATISFACTORY TO THIS CORPORATION STATING THAT SUCH TRANSACTION
IS EXEMPT FROM REGISTRATION, OR (III) THIS CORPORATION OTHERWISE SATISFIES
ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION."
ACCREDITATION. Each investor must qualify as an "accredited investor" as that
term is defined by the SEC. Please initial one or more categories below
appropriate to your situation. The Investor represents and warrants that he is:
(Initial one of the following):
[ ] a. A natural person who is a broker dealer (registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended).
[ ] b. A director or executive officer of the Company.
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[ ] c. A natural person with an individual net worth *, or joint net worth
* with his or her spouse, in excess of $1,000,000.
[X] d. A natural person who (i) has had an individual income in excess of
$200,000 in each of 2003 and 2004 or a joint income with his or her
spouse in excess of $300,000 in each of those two years and (ii)
reasonably expects to reach the same income level in 2005
[ ] e. None of the above.
*As used in this subparagraph, "net worth" means total tangible assets as
currently valued less total liabilities.
TAX IDENTIFICATION; WITHHOLDING. Under penalties of perjury, Investor certifies
that (a) he is a U.S. person; (b) the number shown page 7 hereto opposite the
Investor's is the Investor's correct Social Security number, and (c) the
Investor is not subject to back-up withholding, either because he is exempt from
back-up withholding, because he has not been notified that he is subject to
back-up withholding as a result of a failure to report all interest and
dividends, or because the Internal Revenue Service has notified Investor that he
is no longer subject to back-up withholding. (If Investor has been notified by
the Internal Revenue Service that he is currently subject to back-up
withholding, strike the second clause (c) above of the foregoing
representation.)
COVENANTS. The Investor agrees that:
TRANSFER RESTRICTION. The Investor will not transfer or assign this
Agreement or any of his interest herein. The Common Stock for which the
Investor hereby subscribes will be assigned or transferred only in
accordance with all applicable laws.
NO REVOCATION. The Investor may not cancel, terminate or revoke this
Agreement, and this Agreement will survive his or her death or disability
and will be binding upon his or her successors, assigns, legal
representatives, heirs, legatees and distributes.
INDEMNIFICATION. The Investor will indemnify, hold harmless and defend the
Company and its affiliates, agents and attorneys with respect to any and
all loss, damage, expense, claim, action or liability any of them may
incur as a result of the breach or untruth of any of the covenants,
representations and warranties set forth in this Agreement. If the Company
or anyone acting on its behalf discovers any breach or untruth of any such
covenant, representations or warranty, the Company may, at its option,
forthwith rescind the sale of any Common Stock to the Investor.
GOVERNING LAW; VENUE; SUCCESSORS. This Agreement will be governed by and
construed in accordance with the internal laws of the State of Delaware, without
giving affect to conflict of law principles. Company and Investor consent to
non-exclusive
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jurisdiction and venue in Fairfield, Connecticut. If any provision of this
Agreement is determined by a court of law to be illegal or unenforceable, then
such provision will be enforced to the maximum extent possible and the other
provisions will remain fully effective and enforceable.
THE INVESTOR HAS BEEN ADVISED, PRIOR TO HIS PURCHASE OF THE SHARES, THAT
NEITHER THE OFFERING OF THE SHARES NOR ANY OFFERING MATERIALS HAVE BEEN REVIEWED
BY ANY ADMINISTRATOR UNDER THE ACT, THE WASHINGTON STATE SECURITIES ACT OR ANY
OTHER APPLICABLE SECURITIES ACT (THE "ACTS") AND THAT THE SECURITIES HAVE NOT
BEEN REGISTERED UNDER ANY OF THE ACTS AND THEREFORE CANNOT BE RESOLD UNLESS THEY
ARE REGISTERED UNDER THE ACTS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
THE INVESTOR MUST RELY ON HIS OWN EXAMINATION OF THE COMPANY AND THE TERMS
OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED IN MAKING AN INVESTMENT
DECISION ON THE SECURITIES. THE COMPANY'S OFFERING DOCUMENTS, OFFERING MATERIALS
AND ANY STATEMENTS MADE TO INVESTORS, ALL WITH RESPECT TO THE BUSINESS OF THE
COMPANY, ITS MANAGEMENT OR ITS FINANCIAL CONDITION, HAVE NOT BEEN REVIEWED OR
PASSED UPON BY ANY FEDERAL, STATE OR LOCAL SECURITIES ADMINISTRATOR OR OTHER
GOVERNMENTAL AGENCY. THE COMPANY HAS NOT RECEIVED ANY INDEPENDENT VALUATION. THE
COMPANY HAS SPECIFICALLY REQUESTED ITS COUNSEL NOT TO UNDERTAKE ANY SIGNIFICANT
ROLE IN THE DISCLOSURE PROCESS OR TO OPINE ON THE ADEQUACY OR ACCURACY OF THE
DISCLOSURE. CONSEQUENTLY, THE COMPANY'S COUNSEL SHOULD NOT BE LOOKED TO FOR ANY
ASSURANCE THAT THERE HAVE NOT BEEN MATERIAL OMISSIONS OR MISSTATEMENTS IN THE
OFFER AND SALE OF THESE SECURITIES. THE INVESTOR, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, AGREES NOT TO MAKE ANY CLAIM OR BRING ANY ACTION AND WAIVES AND
RELEASES ANY AND ALL CLAIMS AGAINST THE COMPANY OR ITS COUNSEL RELATED TO ANY
DISCLOSURE OR LACK THEREOF.
The Investor has completed this Agreement as of the date indicated below
and understands that this subscription is subject to acceptance by the Company.
The Investor hereby offers his subscription to the Company in the amount
indicated and includes herewith a check payable to Greenfield Online, Inc., in
the full amount of the subscription.
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PLEASE PRINT OR TYPE
DATE: February 8, 2004
NUMBER OF SHARES TO BE PURCHASED 81,521
PRICE PER SHARE: $18.40
TOTAL COST: $1,499,986.40
INVESTOR INFORMATION:
Name Xxxxxxx Xxxxx
Mailing Address 00000 Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
_____________________________________
Social Security Number ###-##-####
Telephone number 000-000-0000
E-mail xxxxxxxxx@xxxxxxx.xxx
/s/ Xxxxxxx Xxxxx
--------------------------
Signature of Investor
JOINT INVESTOR (IF ANY):
Name _____________________________________
Mailing Address _____________________________________
_____________________________________
_____________________________________
Social Security Number _____________________________________
Telephone number _____________________________________
E-mail _____________________________________
__________________________
Signature of Investor
ACCEPTED by Greenfield Online, Inc.
By /s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: General Counsel
Dated: 2/8/05
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