Exhibit 10.1
S ECURITIES S UBSCRIPTION AND P URCHASE A GREEMENT
eDiets.com, Inc.
1000 Corporate Drive Suite 600
Fort Lauderdale FL 33334
The undersigned (the “
Investor ”) hereby confirms his agreement with you as
follows:
1. This Securities Subscription and Purchase
Agreement (this “ Agreement ”) is made as of
June 23, 2009, between eDiets.com, Inc., a Delaware
corporation (the “ Company ”), and the
Investors.
2. Pursuant to this Agreement and subject to its
terms and conditions, the Investor hereby subscribes for and will
purchase from the Company and the Company will issue and sell to
the Investor, in a private placement, the following securities (the
“ Securities ”) for an aggregate purchase price
of $300,000 (the “ Purchase Price ”):
(a) 300,000 shares (the “ Shares
”) of common stock of the Company, $0.001 par value per
share, at a purchase price of $1.00 per Share, and
(b) a warrant (the “ Warrant ”)
in the form of Exhibit A to this Agreement and hereby
incorporated by reference to purchase up to a number of shares
equal to 45% of the Shares, which shall be exercisable on or after
the Original Issue Date (as defined in the Warrant), have a term of
exercise equal to ten (10) years and have a strike price of
$1.20 per share.
3. The Company and the Investor agree to enter into
a registration rights agreement (the “ Registration Rights
Agreement ”) in the form of Exhibit B to this
Agreement, concurrently with the execution of this Agreement. (the
Agreement and the Registration Rights Agreement collectively the
“ Agreements ”).
4. Unless otherwise agreed between the Company and
the Investor, the closing of the transactions contemplated by this
Agreement shall take place at the offices of the Company on or
before July 15, 2009 (the “ Closing
”).
5. The Company’s obligation to issue and sell
the Securities shall be subject to the following conditions, any
one or more of which may be waived by the Company:
(a) prior receipt by the Company of an executed copy
of this Agreement;
(b) the execution and delivery by the Investor of
the Registration Rights Agreement;
(c) the accuracy in all material respects when made
and at the Closing of the representations and warranties made by
the Investor in this Agreement and the fulfillment of the
obligations of the Investor to be fulfilled by the Investor under
this Agreement on or prior to the Closing in all material
respects;
(d) receipt of the Purchase Price; and
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(e) the execution and delivery by the Investor of a
cross receipt evidencing receipt of the Shares and the
Warrant.
6. The Investor’s obligation to purchase the
Securities shall be subject to the following conditions, any one or
more of which may be waived by the Investor:
(a) prior receipt by the Company of an executed copy
of this Agreement;
(b) the execution and delivery by the Company of the
Registration Rights Agreement;
(c) the accuracy in all material respects when made
and at the Closing of the representations and warranties made by
the Company in this Agreement and the fulfillment of the
obligations of the Company to be fulfilled by it under this
Agreement on or prior to the Initial Closing in all material
respects; and
(d) the execution and delivery by the Company of a
cross receipt evidencing receipt of the Purchase Price.
7. Certificates representing the Shares and
Warrants purchased by the Investor, respectively, will be
registered in the Investor’s name and address as set forth
below.
8. The Investor represents and warrants to, and
covenants with, the Company as follows:
(a) the Investor was at the time it was offered the
Securities, is as of the date hereof and as of the Closing and will
be on each date it exercises the Warrant an “accredited
investor” as such term is defined in Rule 501 of Regulation D
promulgated pursuant to the Securities Act of 1933, as amended, is
knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in
securities presenting an investment decision similar to that
involved in the purchase of the Securities, and has requested,
received, reviewed and considered all information the Investor
deemed relevant in making an informed decision to purchase the
Securities and is able to bear the economic risk of an investment
in the Securities and, at the present time, is able to afford a
complete loss of such investment;
(b) the Investor understands that the Securities are
“restricted securities” and have not been registered
under the Securities Act, or registered or qualified under any
state securities law, in reliance on specific exemptions therefrom,
which exemptions may depend upon, among other things, the
representations made by the Investor in this Agreement; the
Investor is acquiring the Securities in the ordinary course of
business and for the Investor’s own account for investment
only, has no present intention of distributing any of such
Securities and has no arrangement or understanding with any other
persons regarding the distribution of such Securities;
and
(c) the Investor will not, directly or indirectly,
offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge
of) any of the Securities except in compliance with the Securities
Act, applicable state securities laws and the respective rules and
regulations promulgated thereunder.
9. The Company represents and warrants to, and
covenants with, the Investor as follows:
(a) The Company is duly incorporated and validly
existing in good standing under the laws of the State of Delaware,
has full power and authority to own, operate and occupy its
properties and to conduct its business as presently conducted and
is registered or qualified to do business and in good standing in
each jurisdiction in which it owns or leases property or transacts
business and where the failure to be so qualified would have a
material adverse effect upon the Company and its subsidiaries as a
whole or the business, financial condition, prospects, properties,
operations or assets of the Company and its subsidiaries as a whole
or the Company’s ability to perform its obligations under
this Agreement in all material respects, and no proceeding has been
instituted in any such jurisdiction revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification;
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(b) The Company has all requisite power and
authority to execute, deliver and perform its obligations under
this Agreement; the execution and delivery of this Agreement, and
the consummation by the Company of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action
and no further action on the part of the Company or the Board or
shareholders is required; and
(c) The Securities to be sold pursuant to this
Agreement have been duly authorized, and when issued and paid for
in accordance with the terms of this Agreement, will be duly and
validly issued, fully paid and nonassessable, subject to no lien,
claim or encumbrance (except for any such lien, claim or
encumbrance created, directly or indirectly, by the
Investor).
10. Notwithstanding any investigation made by any
party to this Agreement, all covenants, agreements, representations
and warranties made by the Company and the Investor herein shall
survive the execution of this Agreement, the delivery to the
Investor of the Securities being purchased and the payment
therefor, and a party’s reliance on such representations and
warranties shall not be affected by any investigation made by such
party or any information developed thereby.
11. All notices, requests, consents and other
communications hereunder shall be in writing, shall be delivered
(A) if within the United States, by first-class registered or
certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile, or (B) if from
outside the United States, by FedEx (or comparable service) or
facsimile, and shall be deemed given: (i) if delivered by
first-class registered or certified mail domestic, upon the
business day received, (ii) if delivered by nationally
recognized overnight carrier, one (1) business day after
timely delivery to such carrier, (iii) if delivered by FedEx
(or comparable service), two (2) business days after timely
delivery to such carrier, or (iv) if delivered by facsimile,
upon electric confirmation of receipt and shall be addressed as
follows, or to such other address or addresses as may have been
furnished in writing by a party to another party pursuant to this
paragraph:
(a) if to the Company, to:
eDiets.com, Inc.
1000 Corporate Drive Suite
600
Fort Lauderdale FL 33334
Attention: Chief Executive
Officer
Facsimile: (954) 938 0031
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(b) if to the Investor, c/o Prides Capital Partners,
LLC, 200 High Street, Suite 700, Boston, MA 02110, Facsimile:
(617) 778-9299.
12. This Agreement may not be modified or amended
except pursuant to an instrument in writing signed by the Company
and the Investor. Any waiver of a provision of this Agreement must
be in writing and executed by the party against whom enforcement of
such waiver is sought.
13. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and
shall not be deemed to be part of this Agreement.
14. This Agreement sets forth the entire agreement
and understanding of the parties relating to the subject matter
hereof and supersedes all prior and contemporaneous agreements,
negotiations and understandings between the parties, both oral and
written relating to the subject matter hereof. If any provision
contained in this Agreement is determined to be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
15. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of
Delaware, without giving effect to the principles of conflicts of
law.
16. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted
assigns. No party may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
other.
17. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all
of which, when taken together, shall constitute but one instrument,
and shall become effective when one or more counterparts have been
signed by each party hereto and delivered to the other parties. In
the event that any signature is delivered by fax or electronic
mail, such signature shall create a valid and binding obligation of
the party executing (or on whose behalf such signature is executed)
with the same force and effect as if such signature were an
original.
[Remainder of Page Intentionally
Left Blank.]
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Please confirm that the foregoing
correctly sets forth the agreement between us by signing
below.
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Dated as
of: June 23,
2009
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/s/ Kevin A. Richardson
II
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Investor: KEVIN
A. RICHARDSON II
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AGREED AND
ACCEPTED:
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eDiets.com,
Inc.
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By:
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Name:
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Thomas
Hoyer
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Title:
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Chief Financial
Officer
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Exhibit A:
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Form of
Warrant
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Exhibit
B:
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Form of
Registration Rights Agreement
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[SECURITIES SUBSCRIPTION AND
PURCHASE AGREEMENT SIGNATURE PAGE]
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAW. SUCH SECURITIES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT OR THE ISSUER HAS
RECEIVED AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY
ACCEPTABLE TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED UNDER
THE ACT OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES AND
THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY
SUCH SECURITIES.
eDiets.com, Inc
.
Warrant for the Purchase of
Shares of
Common Stock
FOR VALUE RECEIVED, eDiets.com,
Inc., a Delaware corporation (the “Company”), hereby
certifies that
or his assigns, is entitled to purchase from the Company, at any
time or from time to time commencing on the date hereof (the
“Initial Exercise Date”) and expiring at 5:00 P.M., New
York City time, on the ten (10) year anniversary of the
Original Issue Date (the “Expiration Date”)
( )
fully paid and non-assessable shares of Common Stock, par value
$.001 per share, of the Company (the “Warrant Shares”)
for a per share exercise price of $1.20 (the “Per Share
Warrant Price”). The Per Share Warrant Price is subject to
adjustment as hereinafter provided. Capitalized terms used and not
otherwise defined in this Warrant shall have the meanings specified
in Section 8, unless the context otherwise
requires.
1. Exercise of
Warrant.
(a) This Warrant may be exercised,
in whole at any time or in part from time to time, commencing on
the Initial Exercise Date and expiring at 5:00 P.M., New York City
time, on the Expiration Date (with the Exercise Notice at the end
of this Warrant duly executed) at the address set forth in
Section 10 hereof, together with payment of the Per Share
Warrant Price multiplied by the number of Warrant Shares to which
such exercise relates made by delivery to the Company of one or
more types of Permitted Consideration.
(b) If this Warrant is exercised in
part, the Company will deliver to the Holder within three Trading
Days of the date such Holder delivers to the Company this Warrant
and an Exercise Notice, together with the payment of the aggregate
Per Share Warrant Price for such exercise, a new Warrant covering
the Warrant Shares that have not been exercised. By the expiration
of the third Trading Day following the Holder’s delivery of a
Warrant, together with an Exercise Notice and the payment of the
aggregate Per Share Warrant Price for such exercise,
the Company will (i) issue a certificate or
certificates in the name of the Holder for the largest number of
whole shares of the Common Stock to which the Holder shall be
entitled and, if this Warrant is exercised in whole, in lieu of any
fractional share of the Common Stock to which the Holder shall be
entitled, pay to the Holder cash in an amount equal to the fair
value of such fractional share (determined by reference to the
closing sales price of the Common Stock on the date of the Exercise
Notice), and (ii) deliver the other securities and properties
receivable upon the exercise of this Warrant, or the proportionate
part thereof if this Warrant is exercised in part, pursuant to the
provisions of this Warrant.
(c) If, by the third Trading Day
after the date that the Holder delivers an Exercise Notice,
together with the payment of the aggregate Per Share Warrant Price
for such exercise, the Company fails to deliver the required number
of Warrant Shares in the manner required pursuant to
Section 1(b), then the Holder will have the right to rescind
such exercise.
(d) If, by the third Trading Day
after the date that the Holder delivers an Exercise Notice,
together with the payment of the aggregate Per Share Warrant Price
for such exercise, the Company fails to deliver the required number
of Warrant Shares in the manner required pursuant to
Section 1(b), and if after such third Trading Day and prior to
the receipt of such Warrant Shares, the Holder purchases (in an
open market transaction or otherwise) shares of Common Stock to
deliver in satisfaction of a sale by the Holder of the Warrant
Shares which the Holder anticipated receiving upon such exercise (a
“Buy-In”), then the Company shall (1) pay in cash
to the Holder the amount by which (x) the Holder’s total
purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount
obtained by multiplying (A) the number of Warrant Shares that
the Company was required to deliver to the Holder in connection
with the exercise at issue by (B) the closing bid price of the
Common Stock at the time of the obligation giving rise to such
purchase obligation and (2) at the option of the Holder,
either reinstate the portion of the Warrant and equivalent number
of Warrant Shares for which such exercise was not honored or
deliver to the Holder the number of shares of Common Stock that
would have been issued had the Company timely complied with its
exercise and delivery obligations hereunder. The Holder shall
provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In.
(e) If, after the Required Effective
Date (as defined in the Registration Rights Agreement) the Warrant
Shares to be issued are not registered and available for resale by
the Holder pursuant to a registration statement in accordance with
the Registration Rights Agreement, then notwithstanding anything
contained herein to the contrary, the Holder may, at its election
exercised in its sole discretion, exercise a portion of this
Warrant with respect to an aggregate total of twenty-five percent
(25%) of the total Warrant Shares and, in lieu of making a
cash payment of Permitted Consideration, elect instead to receive
upon such exercise the “Net Number” of shares of Common
Stock determined according to the following formula:
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Net Number
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=
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(A x B)
– (A x C)
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B
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