Exhibit 4.1
PL BRANDS, INC.
SUBSCRIPTION AGREEMENT
The undersigned (hereinafter "Subscriber") hereby confirms his/her/its
subscription for the purchase of shares of common stock, par value $.001 per
share (the "Common Stock"), of PL Brands, Inc., a Delaware corporation (the
"Company"), as described below.
In connection with this subscription, the Subscriber and the Company agree as
follows:
1. Sale and Purchase of Securities.
(a) The Company hereby agrees to sell to the Subscriber and the Subscriber
hereby agrees to purchase from the Company the number of shares (the
"Securities") of Common Stock of the Company set forth on the signature page
hereof at a price of $____ per share. The Subscriber has hereby delivered and
paid to the Company concurrently herewith the purchase price (the "Purchase
Price") set forth on the signature page hereof required to purchase the
Securities subscribed for hereunder (which amount has been paid in U.S.
Dollars). The Subscriber understands and acknowledges that this subscription is
part of a proposed placement by the Company of up to 1,000,000 shares of Common
Stock at $3.00 per share.
(b) At such time as the Company shall determine, the Company shall
establish and inform the Subscriber of the date upon which the Purchase Price
and this subscription was accepted by the Company (the "Closing Date") or
rejected in whole or in part.
(c) Promptly after the Closing Date, the certificate representing the
Securities purchased by the Subscriber will be delivered by the Company to the
Subscriber.
2. Representations and Warranties of Subscriber. The Subscriber represents and
warrants to the Company as follows:
(a) The Subscriber is an "accredited investor" as defined by Rule 501 under
the Securities Act of 1933, as amended (the "Act"), and the Subscriber is
capable of evaluating the merits and risks of the Subscriber's investment in the
Company and has the capacity to protect the Subscriber's own interests.
(b) The Subscriber understands that the Securities to be purchased have not
been, and will not be, registered under the Act or the securities laws of any
state by reason of a specific exemption from the registration provisions of the
Act and the applicable state securities laws, the availability of which depends
upon, among other things, the bona fide nature of the investment intent and the
accuracy of the Subscriber's representations as expressed herein.
(c) Subscriber acknowledges and understands that the Securities are being
purchased for
investment purposes and not with a view to distribution or resale, nor with the
intention of selling, transferring or otherwise disposing of all or any part of
the Securities for any particular price, or at any particular time, or upon the
happening of any particular event or circumstances, except selling,
transferring, or disposing the Securities made in full compliance with all
applicable provisions of the Act, the rules and regulations promulgated by the
Securities and Exchange Commission ("SEC") thereunder, and applicable state
securities laws; and that the Securities are not liquid investments. The Company
has no obligation or intention to register the Securities for resale at this
time, nor has the Company made any representations, warranties, or covenants
regarding the registration of the Securities or compliance with Regulation A or
some other exemption under the Act.
(d) The Subscriber acknowledges that the Securities must be held
indefinitely unless subsequently registered under the Act or unless an exemption
from such registration is available. The Subscriber is aware of the provisions
of Rule 144 promulgated under the Act which permit limited resale of Securities
purchased in a private placement subject to the satisfaction of certain
conditions, including, among other things, the existence of a public market for
the Securities, the availability of certain current public information about the
Company, the resale occurring not less than one year after a party has purchased
and paid for the security to be sold, the sale being effected through a
"broker's transaction" or in transactions directly with a "market maker" and the
number of Securities being sold during any three-month period not exceeding
specified limitations. The Subscriber acknowledges that the Subscriber is not
relying on the Company in any way to satisfy the conditions precedent for
limited resale of Securities pursuant to Rule 144 under the Act.
(e) The Subscriber acknowledges that the Subscriber has had the opportunity
to ask questions of, and receive answers from the Company or any person acting
on its behalf concerning the Company and its business and to obtain any
additional information, to the extent possessed by the Company (or to the extent
it could have been required by the Company without unreasonable effort or
expense) necessary to verify the accuracy of the information received by the
Subscriber. In connection therewith, the Subscriber acknowledges that the
Subscriber has had the opportunity to discuss the Company's business, management
and financial affairs with the Company's management or any person acting on its
behalf. The Subscriber has received all the information, both written and oral,
that it desires. Without limiting the generality of the foregoing, the
Subscriber has been furnished with or has had the opportunity to acquire, and to
review, (i) copies of the Company's publicly available documents, and (ii) all
information, both written and oral, that it desires with respect to the
Company's business, management, financial affairs and prospects, including the
proposed acquisition of the business and assets of Xxx.xxx, Inc. In determining
whether to make this investment, the Subscriber has relied solely on the
Subscriber's own knowledge and understanding of the Company and its business
based upon the Subscriber's own due diligence investigations and the information
furnished pursuant to this paragraph. The Subscriber understands that no person
has been authorized to give any information or to make any representations
which were not furnished pursuant to this paragraph and the Subscriber has not
relied on any other representations or information.
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(f) The Subscriber has all requisite legal and other power and authority to
execute and deliver this Subscription Agreement and to carry out and perform the
Subscriber's obligations under the terms of this Subscription Agreement. This
Subscription Agreement constitutes a valid and legally binding obligation of the
Subscriber, enforceable in accordance with its terms, and subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
general principals of equity, whether such enforcement is considered in a
proceeding in equity or law.
(g) The Subscriber has not, and will not, incur, directly or indirectly, as
a result of any action taken by the Subscriber, any liability for brokerage or
finders' fees or agents' commissions or any similar charges in connection with
this Subscription Agreement.
(h) To the extent the Subscriber deems necessary, the Subscriber has
reviewed with the Subscriber's own tax advisors the federal, state, local and
foreign tax consequences of this investment and the transactions contemplated by
this Agreement. The Subscriber relies solely on such advisors and not on any
statements or representations of the Company or any of its agents. The
Subscriber understands that the Subscriber (and not the Company) shall be
responsible for the Subscriber's own tax liability that may arise as a result of
this investment or the transactions contemplated by this Subscription Agreement.
(i) This Subscription Agreement does not contain any untrue statement of a
material fact concerning the Subscriber.
(j) There are no actions, suits, proceedings or investigations pending
against the Subscriber or the Subscriber's properties before any court or
governmental agency (nor, to the Subscriber's knowledge, is there any threat
thereof) which would impair in any way the Subscriber's ability to enter into
and fully perform the Subscriber's commitments and obligations under this
Agreement or the transactions contemplated hereby.
(k) The execution, delivery and performance of and compliance with this
Subscription Agreement, and the issuance of the Securities will not result in
any material violation of, or conflict with, or constitute a material default
under, any of Subscriber's articles of incorporation or bylaws, if applicable,
or any of the Subscriber's material agreements nor result in the creation of any
mortgage, pledge, lien, encumbrance or charge against any of the assets or
properties of the Subscriber or the Securities.
(l) Subscriber acknowledges that the Securities are speculative and involve
a high degree of risk and that the Subscriber can bear the economic risk of the
purchase of the Securities, including a total loss of his/her/its investment.
(m) The Subscriber recognizes that no federal, state or foreign agency has
recommended or endorsed the purchase of the Securities.
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(n) Subscriber is aware that the Securities are and will be, when issued,
"restricted securities" as that term is defined in Rule 144 of the general
rules and regulations under the Act.
(o) Subscriber understands that any and all certificates representing the
Securities and any and all securities issued in replacement thereof or in
exchange therefor shall bear the following legend, or one substantially similar
thereto, which Subscriber has read and understands:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933. The securities have been
acquired for investment and may not be sold, transferred or assigned
in the absence of an effective registration statement for these
securities under the Securities Act of 1933 or an opinion of the
Company's counsel that registration is not required under said Act."
(p) In addition, the certificates representing the Securities, and any and
all securities issued in replacement thereof or in exchange therefor, shall bear
such legend as may be required by the securities laws of the jurisdiction in
which the Subscriber resides.
(q) Because of the restrictions imposed on resale, Subscriber understands
that the Company shall have the right to note stop-transfer instructions in its
stock transfer records, and Subscriber has been informed of the Company's
intention to do so. Any sales, transfers, or any other dispositions of the
Securities by Subscriber, if any, will be in compliance with the Act.
(r) Subscriber acknowledges that Subscriber has such knowledge and
experience in financial and business matters that he is capable of evaluating
the merits and risks of an investment in the Securities and of making an
informed investment decision.
(s) Subscriber represents that (i) Subscriber is able to bear the economic
risks of an investment in the Securities and to afford the complete loss of the
investment; and (ii) (A) Subscriber could be reasonably assumed to have the
capacity to protect his/her/its own interests in connection with this
subscription; or (B) Subscriber has a pre-existing personal or business
relationship with either the Company or any affiliate thereof of such duration
and nature as would enable a reasonably prudent purchaser to be aware of the
character, business acumen and general business and financial circumstances of
the Company or such affiliate and is otherwise personally qualified to evaluate
and assess the risks, nature and other aspects of this subscription.
(t) Subscriber further represents that the address set forth below is
his/her principal residence (or, if the Subscriber is a Company, partnership or
other entity, the address of its principal place of business); that Subscriber
is purchasing the Securities for Subscriber's own account and not, in whole or
in part, for the account of any other person; Subscriber is purchasing the
Securities for investment and not with a view to public resale or distribution;
and that Subscriber has not formed any entity for the purpose of purchasing the
Securities.
(u) Subscriber understands that the Company shall have the unconditional
right to accept or reject this subscription, in whole or in part, for any
reason or without a specific reason, in the sole
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and absolute discretion of the Company (even after receipt and clearance of
Subscriber's funds). This Subscription Agreement is not binding upon the Company
until accepted by an authorized officer of the Company. In the event that the
subscription is rejected, then Subscriber's subscription funds will be returned
without interest thereon or deduction therefrom.
(v) The Subscriber represents that Subscriber has not received any general
solicitation or general advertising regarding the purchase of the Securities.
(w) The Subscriber is neither a U.S. Person (as hereinafter defined) nor
acquiring the Securities for the account or benefit of any U.S. Person. "U.S.
Person" means any natural person resident in the United States; any partnership
or corporation organized or incorporated under the laws of the United States;
any estate of which any executor or administrator is a U.S. Person; any trust of
which any trustee is a U.S. Person; any agency or branch of a foreign entity
located in the United States; any non-discretionary account or similar account
(other than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. Person; any discretionary account or similar
account (other than an estate or trust) held by a dealer or other fiduciary
organized, incorporated, or (if an individual) resident in the United States;
or, any partnership or corporation if (A) organized or incorporated under the
laws of any foreign jurisdiction, and (B) formed by a U.S. Person principally
for the purpose of investing in securities not registered under the Act, unless
it is organized or incorporated, and owned, by accredited investors who are not
natural persons, estates or trusts.
(x) The Subscriber warrants and represents that any one of the statements
below, next to which the Subscriber has placed his or her initials or the
initials of an authorized signatory in the space designated therefor, which
describe an "accredited investor", as that term is defined by Rule 501 under the
Act, is true with respect to the Subscriber.
Initial one or more of the following statements, if applicable:
[ ] (1) The Subscriber is a natural person whose net worth, or joint
net worth with spouse, at the time of the purchase exceeds
$1,000,000 (including the value of principal residence,
furnishings therein and personal automobiles); or
[ ] (2) The Subscriber is a natural person whose individual gross
income (excluding that of spouse) exceeded $200,000, or
whose joint income with that person's spouse exceeded
$300,000, in each of the two most recent years, and who
reasonably expects to exceed such income levels in the
current year; or
[ ] (3) The Subscriber is a director or an executive officer of the
Company; or
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[ ] (4) The Subscriber is a bank as defined in Section 3(a)(2) of
the Act or any savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the Act,
whether acting in its individual or fiduciary capacity; or
[ ] (5) The Subscriber is a broker dealer registered pursuant to
Section 15 of the Exchange Act; or
[ ] (6) The Subscriber is an insurance company as defined in Section
2(13) of the Act; or
[ ] (7) The Subscriber is an investment company registered under the
Investment Company Act of 1940; or
[ ] (8) The Subscriber is a business development company, as defined
in Section 2(a)(48) of the Investment Company Act of 1940;
or
[ ] (9) The Subscriber is 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; or
[ ] (10) The Subscriber is 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 million; or
[ ] (11) The Subscriber is an employee benefit plan within the
meaning of the Employee Retirement Income Security Act of
1974 and 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, an insurance
company, or a registered investment adviser, or the employee
benefit plan has total assets in excess of $5 million, or,
if a self-directed plan, with investment decisions made
solely by persons that are accredited investors; or
[ ] (12) The Subscriber is a private business development company as
defined in Section 202(a)(22) of the Investment Advisors
Act of 1940; or
[ ] (13) The Subscriber is 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 Debentures,
with total assets in excess of $5 million; or
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[ ] (14) The Subscriber is a trust with total assets in excess of $5
million not formed for the specific purpose of acquiring the
Debentures, whose purchase is directed by a sophisticated
person as described in Rule 506(b)(2)(ii) under the Act; or
[ ] (15) The Subscriber is an entity in which all of the equity
owners are "accredited investors".
3. Representations and Warranties of the Company. The Company represents and
warrants to the Subscriber as follows:
(a) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(b) The Company has all such corporate power and authority to enter into,
deliver and perform this Subscription Agreement.
(c) All necessary corporate action has been duly and validly taken by the
Company to authorize the execution, delivery and performance of this
Subscription Agreement by the Company, and the issuance and sale of the
Securities to be sold by the Company pursuant to this Subscription Agreement.
This Agreement has been duly and validly authorized, executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
4. Indemnification. The Subscriber agrees to indemnify and hold harmless the
Company, its officers, directors, employees, shareholders and affiliates, and
any person acting on behalf of the Company, from and against any and all damage,
loss, liability, cost and expense (including reasonable attorneys' fees) which
any of them may incur by reason of the failure by the Subscriber to fulfill any
of the terms and conditions of this Subscription Agreement, or by reason of any
breach of the representations and warranties made by the Subscriber herein, or
in any other document provided by the Subscriber to the Company. All
representations, warranties and covenants of each of the Subscriber and the
Company contained herein shall survive the acceptance of this subscription.
5. Miscellaneous.
(a) The Subscriber agrees not to transfer or assign this Subscription
Agreement, or any of the Subscriber's interest herein, and further agrees that
the transfer or assignment of the Securities acquired pursuant hereto shall be
made only in accordance with all applicable laws.
(b) The Subscriber agrees that the Subscriber cannot cancel, terminate, or
revoke this
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Subscription Agreement or any agreement of the Subscriber made hereunder, and
this Subscription Agreement shall survive the death or legal disability of the
Subscriber and shall be binding upon the Subscriber's heirs, executors,
administrators, successors, and permitted assigns.
(c) The Subscriber has read and has accurately completed this entire
Subscription Agreement.
(d) This Subscription Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and may be amended only
by a written execution by all parties.
(e) This Subscription Agreement shall be enforced, governed and construed
in all respects in accordance with the laws of the State of Delaware.
(f) Subscriber acknowledges that it has been advised to consult with
his/her/its own attorney regarding this subscription and Subscriber has done so
to the extent that Subscriber deems appropriate.
(g) This Subscription Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the Subscriber has caused this Subscription Agreement
to be executed as of the date indicated below.
Individuals:
$
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Number of Shares Purchase Price (at $3.00 per share)
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Print or Type Name Print or Type Name
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Signature Signature
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Date Date
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Soc. Sec. No. (if applicable) Soc. Sec. No. (if applicable)
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Address
________ Joint Tenancy ________ Tenants in Common
Partnerships, Corporations or Other Entities:
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Number of Shares Purchase Price (at $____ per share)
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Print or Type Name
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Address
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Taxpayer I.D. No. (if applicable) Date
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Signature Print or Type Name and Indicate
Title or Position with Entity
Disposition of Subscription Agreement
IN WITNESS WHEREOF, the Company has caused this Subscription Agreement to
be executed, and the foregoing subscription accepted, as of the date indicated
below.
PL BRANDS, INC.
By: _______________________________________
_______________________________________
Name and Title of Authorized Officer
Date: _________________________________
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