Exhibit 10.1
EXECUTION
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
September 8, 2009, between eDiets.com, Inc., a Delaware
corporation (the “ Company ”), and the
Investor.
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 $500,002 (the “ Purchase Price ”):
(a) 471,700 shares (the “ Shares
”) of common stock of the Company, $0.001 par value per
share, at a purchase price of $1.06 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
an amendment to that certain registration rights agreement dated as
of June 23, 2009 (as amended, 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 as amended
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 September 8, 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;
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EXECUTION
(d) receipt of the Purchase Price; and
(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 Securitie
