SERIES A PREFERRED STOCK PURCHASE AGREEMENT
Between
AGRITOPE, INC. ("Agritope") Vilmorin & Cie ("Purchaser")
0000 X. X. Xxxxxxxxx Xxxxx 00 Xxx xx Xxxxxxxxx
Xxxxxxxxx, Xxxxxx 00000 00000 Xxxxx
Fax: 000.000.0000 Fax: (00) 000 0000 00
Purchaser agrees to purchase, and Agritope agrees to sell, Agritope Series A
Preferred Stock, $.01 par value per share, on the terms and conditions stated in
this Stock Purchase Agreement.
1. Number of Shares: 214,285
2. Total Purchase Price at $7.00 per share: $1,499,995
3. Domicile of Purchaser: France
(Country of organization, if a corporation or other entity; country of
residence, if an individual.)
4. Exhibits. The following exhibits are part of this Stock Purchase
Agreement:
Exhibit A: General Terms
Exhibit B: Certain Definitions under Regulation S
Exhibit C: Rights to Acquire Shares
Exhibit D: Certificate of Designation
Dated: December 5, 1997
AGRITOPE, INC. VILMORIN & CIE
(Purchaser)
By /s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxx (Signature)
Executive Vice President
and Chief Financial Officer Xxxxxx Xxxxxxxx
(Print or type name)
C.E.O.
(Title)
EXHIBIT A
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
GENERAL TERMS
NEITHER THE SHARES OF SERIES A PREFERRED STOCK BEING SOLD PURSUANT TO
THIS AGREEMENT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
OF THE SERIES A PREFERRED STOCK HAVE BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED ("1933 ACT"). SUCH SHARES MAY
NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, OR OTHERWISE DISPOSED OF,
IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO
A U.S. PERSON, AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER THE 1933
ACT ("REGULATION S"), UNLESS (i) THE TRANSACTION IS REGISTERED UNDER
THE 1933 ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE, TERRITORY
OR POSSESSION OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA ("STATE
ACT"), OR (ii) AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT AND
ANY APPLICABLE STATE ACT IS AVAILABLE AND THE ISSUER HAS RECEIVED AN
OPINION OF COUNSEL TO SUCH EFFECT REASONABLY SATISFACTORY TO IT.
TABLE OF CONTENTS
Page
ARTICLE I
PURCHASE AND SALE OF SHARES.......................................................... 2
1.1 Sale of Shares............................................................................. 2
1.2 Payment and Delivery....................................................................... 2
ARTICLE II
CLOSING.................................................................... 2
2.1 Closing.................................................................................... 2
2.2 Actions at Closing......................................................................... 2
ARTICLE III
RESTRICTIONS ON TRANSFER............................................................ 2
3.1 General.................................................................................... 2
3.2 Certificate Legends........................................................................ 3
ARTICLE IV
INVESTMENT MATTERS............................................................... 4
4.1 Investment Representations................................................................. 4
(a) Domicile.............................................................................. 4
(b) Access to Information................................................................. 4
(c) Experience............................................................................ 4
(d) Investment Intent..................................................................... 4
4.2 Certain Restrictions....................................................................... 4
(a) United Kingdom........................................................................ 4
(b) France................................................................................ 4
4.3 Disclosure Document........................................................................ 5
ARTICLE V
REGISTRATION RIGHTS.............................................................. 5
5.1 Definitions................................................................................ 5
5.2 Requested Registration..................................................................... 5
5.3 Registration Procedure..................................................................... 6
5.4 Deferral for Material Events............................................................... 6
5.5 Furnish Information; Expenses.............................................................. 6
5.6 Expenses of Registration................................................................... 7
5.7 Indemnification............................................................................ 7
(a) Indemnification by Agritope........................................................... 7
(b) Indemnification by Holders of the Shares.............................................. 8
(c) Notice, Defense and Counsel........................................................... 8
(d) Survival of Rights and Obligations.................................................... 9
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF AGRITOPE.................................................... 9
6.1 Organization, Etc.......................................................................... 9
6.2 Authority.................................................................................. 9
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6.3 Capitalization............................................................................. 9
6.4 Valid Issuance; Title...................................................................... 9
6.5 Disclosure Document........................................................................ 9
6.6 Tax Matters................................................................................ 10
6.7 Assets Needed for Business................................................................. 10
6.8 Litigation and Other Contingent Liabilities................................................ 10
6.9 Absence of Certain Adverse Effects......................................................... 10
6.10 Business Plan.............................................................................. 10
6.11 No Brokers................................................................................. 10
6.12 Disclosure................................................................................. 10
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PURCHASER.................................................. 10
7.1 Corporate Existence; Execution and Performance of Agreement................................ 10
7.2 Binding Obligations; Due Authorization..................................................... 11
7.3 No Brokers................................................................................. 11
7.4 Litigation................................................................................. 11
7.5 Disclosure................................................................................. 11
ARTICLE VIII
COVENANTS................................................................... 11
8.1 Best Efforts............................................................................... 11
8.2 Right of Access............................................................................ 11
8.3 Preservation of Business; Notice of Change................................................. 11
ARTICLE IX
CONDITIONS................................................................... 12
9.1 Conditions Precedent to Obligations of Purchaser........................................... 12
9.2 Conditions Precedent to Obligations of Agritope............................................ 13
ARTICLE X
PURCHASE OPTION................................................................ 14
10.1 Grant of Option............................................................................ 14
10.2 Exercise of Option......................................................................... 14
ARTICLE XII
OTHER MATTERS................................................................. 14
11.1 Notices.................................................................................... 14
11.2 Amendments and Waiver...................................................................... 15
11.3 Expenses................................................................................... 15
11.4 Headings................................................................................... 15
11.5 Counterparts............................................................................... 15
11.6 Parties in Interest; Assignment............................................................ 15
11.7 Entire Agreement........................................................................... 15
11.8 Severability............................................................................... 15
11.9 Attorney Fees.............................................................................. 15
11.10 Survival................................................................................... 15
11.11 Form of Public Disclosures................................................................. 15
11.12 Cumulative Rights and Remedies............................................................. 15
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11.13 No Third-Party Beneficiaries............................................................... 16
11.14 Dispute Resolution......................................................................... 16
(a) Conduct............................................................................... 16
(b) Decision.............................................................................. 16
(c) Costs................................................................................. 16
11.15 Governing Law.............................................................................. 16
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SERIES A PREFERRED STOCK PURCHASE AGREEMENT
GENERAL TERMS
(European Purchaser)
RECITALS
A. Agritope is currently a wholly-owned subsidiary of Epitope, Inc., an
Oregon corporation that is publicly held ("Epitope"). The board of directors of
Epitope has authorized the spin-off of Agritope (the "Spin-off") to its
shareholders. The Spin-off will be accomplished through a dividend distribution
to Epitope shareholders of all the Agritope common stock, par value $.01 per
share, including associated preferred stock purchase rights ("Agritope Common
Stock") held by Epitope. After the distribution, Agritope will cease to be a
subsidiary of Epitope and will operate as an independent public company.
B. The Spin-off is contingent upon Agritope having received binding
commitments for financing from investors in an aggregate amount the Epitope
board of directors deems sufficient to support the operations of Agritope as a
separate business for a period of not less than two years.
C. Purchaser wishes to invest in Agritope by purchasing newly issued
shares of Agritope Series A Preferred Stock, par value $.01 per share ("Agritope
Series A Preferred Stock") after the Spin-off occurs. Purchaser is only willing
to invest in Agritope if Agritope is an independent company and the Agritope
Common Stock is publicly traded. Although Purchaser intends to hold the Agritope
Series A Preferred Stock and the shares of Agritope Common Stock issuable upon
conversion of the Series A Preferred Stock for investment, a significant factor
in Purchaser's investment decision is the liquidity provided by a publicly
traded security. Purchaser is not willing to become a minority shareholder in
Agritope while it is a privately held company.
D. After the Spin-off, Purchaser wishes to purchase from Agritope the
number of shares listed on the cover page (the "Purchased Shares") of Agritope
Series A Preferred Stock for $7 per share. Agritope wishes to sell the Purchased
Shares to Purchaser on the terms and conditions set forth below.
E. As part of the sale terms, Agritope is granting Purchaser an option
to purchase additional shares of Agritope Series A Preferred Stock (the "Option
Shares") on the terms of this Agreement. The Purchased Shares and the Option
Shares are collectively referred to as the "Preferred Shares."
AGREEMENT
The parties agree as follows:
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ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 Sale of Shares. Upon the terms and conditions of this Agreement,
Agritope shall issue and sell the Purchased Shares to Purchaser and Purchaser
shall purchase the Purchased Shares from Agritope for the total purchase price
listed on the cover page (the "Purchase Price").
1.2 Payment and Delivery. On the Closing date, Purchaser shall pay the
Purchase Price by wire transfer in United States dollars to Agritope. At
Closing, Agritope shall deliver to the Purchaser stock certificates representing
the Purchased Shares.
ARTICLE II
CLOSING
2.1 Closing. The sale of the Purchased Shares shall be consummated at a
closing (the "Closing") on the third business day after the day the Spin-off
occurs (the "Closing Date"). Agritope shall notify Purchaser of the occurrence
of the Spin-off and sale of Agritope Common Stock to investors, and shall
simultaneously notify Purchaser of the Closing Date.
2.2 Actions at Closing. At the Closing:
(a) The Purchaser shall pay Agritope the Purchase
Price by wire transfer in United States dollars.
(b) Agritope shall deliver to Purchaser stock
certificates representing the Purchased Shares.
(c) Agritope shall deliver to Purchaser an opinion
of Agritope's counsel as described in Section 9.1(e) below.
(d) The parties shall enter into a Research
Agreement on mutually agreeable terms negotiated by them.
(e) The parties shall take all other actions that
they deem necessary or desirable to consummate the purchase
and sale of the Purchased Shares hereunder.
ARTICLE III
RESTRICTIONS ON TRANSFER
3.1 General.
(a) PURCHASER SHALL NOT SELL, OFFER TO SELL, PLEDGE,
OR OTHERWISE TRANSFER ANY PREFERRED SHARES OR ANY SHARES OF
AGRITOPE COMMON STOCK ISSUED UPON CONVERSION OF THE PREFERRED
SHARES (THE "CONVERSION SHARES") TO ANY OTHER PERSON EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S AS IN
EFFECT ON THE DATE OF TRANSFER, PURSUANT TO REGISTRATION
UNDER THE 1933 ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM REGISTRATION.
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AGRITOPE SHALL REFUSE TO REGISTER ON ITS BOOKS ANY PURPORTED
TRANSFER MADE IN VIOLATION OF THIS SECTION 3.1, AND ANY SUCH
PURPORTED TRANSFER SHALL BE VOID.
(b) PURCHASER SHALL NOT ENGAGE IN ANY HEDGING
TRANSACTIONS INVOLVING THE PREFERRED SHARES OR THE CONVERSION
SHARES UNLESS IN COMPLIANCE WITH THE 1933 ACT.
(c) NEITHER THE PREFERRED SHARES NOR THE CONVERSION
SHARES HAVE BEEN REGISTERED UNDER THE 1933 ACT. THE PREFERRED
SHARES AND CONVERSION SHARES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF, IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO A
U.S. PERSON (AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER
THE 1933 ACT), UNLESS (i) THE TRANSACTION IS REGISTERED UNDER
THE 1933 ACT AND ANY APPLICABLE STATE ACT, OR (ii) AN
EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT AND ANY
APPLICABLE STATE ACT IS AVAILABLE AND THE ISSUER HAS RECEIVED
AN OPINION OF COUNSEL TO SUCH EFFECT REASONABLY SATISFACTORY
TO IT.
(d) Purchaser agrees to be bound by and comply with
all restrictions provided for in this Agreement on transfer
of the Preferred Shares or the Conversion Shares, and further
agrees that it shall not offer, sell, transfer, pledge or
otherwise dispose of the Preferred Shares or the Conversion
Shares in violation of any applicable securities or other
laws and regulations of a governmental authority having
jurisdiction over such disposition.
3.2 Certificate Legends. Certificates for the Preferred Shares and the
Conversion Shares shall bear substantially the following legends:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
("1933 ACT"), AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF, IN WHOLE OR IN PART,
DIRECTLY OR INDIRECTLY, UNLESS (i) THE TRANSACTION IS
EFFECTED IN ACCORDANCE WITH THE PROVISIONS OF REGULATION
S UNDER THE 1933 ACT, (ii) THE TRANSACTION IS REGISTERED
UNDER THE 1933 ACT AND ANY APPLICABLE SECURITIES LAWS OF
ANY STATE, TERRITORY OR POSSESSION OF THE UNITED STATES
OR THE DISTRICT OF COLUMBIA ("STATE ACT"), OR (iii) AN
EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT AND ANY
APPLICABLE STATE ACT IS AVAILABLE AND THE ISSUER HAS
RECEIVED AN OPINION OF COUNSEL TO SUCH EFFECT REASONABLY
SATISFACTORY TO IT."
"HEDGING TRANSACTIONS INVOLVING THESE SHARES
MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE 1933
ACT."
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ARTICLE IV
INVESTMENT MATTERS
4.1 Investment Representations. Purchaser represents and warrants to
Agritope as follows:
(a) Domicile. PURCHASER IS NOT A U.S. PERSON, AS THAT TERM IS
DEFINED ON EXHIBIT B.
(b) Access to Information. Purchaser has been given, a
reasonable time before execution of this Agreement, the opportunity to
ask questions and receive answers concerning Agritope and the terms and
conditions of the offering of the Preferred Shares and the Conversion
Shares, and to obtain any additional information that Agritope
possesses or can acquire without unreasonable effort or expense that is
necessary to verify the accuracy of information furnished to Purchaser.
Purchaser has received any such additional information that Purchaser
has requested.
(c) Experience. Purchaser has sufficient knowledge and
experience in financial and business matters to be capable of
evaluating the merits and risks of an investment in the Preferred
Shares and the Conversion Shares, and has the ability to bear the
economic risk of that investment.
(d) Investment Intent. Purchaser is acquiring the Preferred
Shares and the Conversion Shares for Purchaser's own account and not on
behalf of any other person. Purchaser is not acquiring the Preferred
Shares or the Conversion Shares with a view to distribution or with the
intent to divide Purchaser's participation with others by reselling or
otherwise distributing the Preferred Shares or the Conversion Shares,
either directly or indirectly through a sale of its own capital stock.
4.2 Certain Restrictions. Purchaser acknowledges the following
restrictions:
(a) United Kingdom. If this Agreement and any
related documents are issued, circulated, or distributed to
Purchaser in the United Kingdom, Purchaser hereby
acknowledges that the offer of the Preferred Shares and the
Conversion Shares pursuant to this Agreement is effected by
private placing and that, accordingly, no steps have been
taken in any jurisdiction that would permit the issue of any
prospectus, application form, notice, circular, or other
invitation offering the Preferred Shares and the Conversion
Shares to the public for subscription or purchase, and
Purchaser hereby represents and warrants that (a) it is a
person falling within Article 11(3) of the Financial Services
Act of 1986 (Investment Advertisements) (Exemptions) Order
1996 or is a person to whom such materials may otherwise be
lawfully issued or passed on and (b) it is a person whose
ordinary activities involve it in acquiring, holding,
managing, or disposing of investments (as principal or agent)
for the purposes of its business or otherwise in
circumstances which have not resulted and will not result in
an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995.
(b) France. If this Agreement and any related
documents are issued, circulated, or distributed to Purchaser
in France, Purchaser hereby acknowledges that
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this Agreement has been supplied in the context of a private
placing and that the placing of the Preferred Shares and the
Conversion Shares has not been effected through "demarchage"
(solicitation) within the meaning of the Law No. 72-6 of 3
January 1972. Purchaser hereby undertakes not to transfer or
assign directly or indirectly the Preferred Shares or the
Conversion Shares in France subsequent to their subscription.
This Agreement and any related documents (together with any
further information) are made available to Purchaser on the
condition that they are for use only by Purchaser in
connection with the proposed investment and shall neither be
passed on by Purchaser to any further person nor reproduced
in whole or in part. Purchaser has been notified by Agritope
to ensure that the terms of this undertaking are strictly
adhered to.
4.3 Disclosure Document. Purchaser acknowledges receipt of a
Registration Statement on Form S-1 filed by Agritope under the 1933 Act with
respect to the Spin-off, without exhibits, together with all amendments filed
with the U.S. Securities and Exchange Commission to the date hereof. Agritope
shall furnish to the Purchaser any additional amendments filed before the
Closing Date. As so amended, the Registration Statement is referred to herein as
the "Disclosure Document."
ARTICLE V
REGISTRATION RIGHTS
5.1 Definitions.
(a) "Eligible Shares" refers to shares of Agritope
Common Stock issuable upon conversion of Agritope Series A
Preferred Stock, other than shares that are not "restricted
securities" for purposes of Rule 144 promulgated under the
0000 Xxx.
(b) The terms "register," "registered," and
"registration" refer to a registration effected by preparing
and filing a registration statement or similar document in
compliance with the 1933 Act and the declaration or ordering
of effectiveness of such registration statement or document.
5.2 Requested Registration. If Agritope shall be requested by Purchaser
or an affiliated holder of Agritope Series A Preferred Stock or Eligible Shares
to effect a registration under the 1933 Act covering the Eligible Shares,
Agritope shall promptly give written notice of such proposed registration to all
persons who purchased Agritope Series A Preferred Stock from Agritope. Any
holders of Series A Preferred Stock who wish to participate in the offering must
respond within 10 days after receipt of such notice. Upon such a request,
Agritope shall as expeditiously as possible use its best efforts to file a
registration statement (the "Registration Statement") under the 1933 Act with
respect to the resale of Eligible Shares. If the request is made at a time when
Agritope is not eligible to use Form S-3, Agritope shall use its best efforts to
file the Registration Statement with respect to the Eligible Shares which
Agritope has been requested to register (a) in such request and (b) in any
response to such notice received by Agritope, within 60 days after the date by
which holders must respond to Agritope's notice. If the request is made at a
time when Agritope is eligible to use Form S-3, the Registration Statement shall
be filed with respect to all Eligible Shares as expeditiously as is practicable.
Agritope shall have an obligation to file a Registration Statement under this
Section 5.2 only once, except that if the Registration Statement filed is not on
Form S-3, and is not filed with respect to all Eligible Shares, Agritope shall
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have an obligation to file a Registration Statement on Form S-3 with respect to
the remaining Eligible Shares if a later request is made under this section at a
time when Agritope is entitled to use Form S-3.
5.3 Registration Procedure. If obligated to file a Registration
Statement under Section 5.2, Agritope shall follow the registration procedures
set forth in this Section 5.3. Agritope shall use its best efforts to cause the
Registration Statement to become effective under the 1933 Act and to maintain
the effectiveness of the Registration Statement for a period of 90 days or, if
the Registration Statement is on Form S-3, two years. If required to permit
resale of the Eligible Shares in the state of New York, Agritope shall use its
best efforts to register or qualify the Eligible Shares covered by the
Registration Statement under the blue sky laws of the state of New York,
provided that Agritope shall not be required in connection therewith or as a
condition precedent thereto to qualify to do business or to file a general
consent to service of process in the state of New York. If required by
applicable law, Agritope shall furnish to the holders of the registered Eligible
Shares such reasonable number of copies of a prospectus, in conformity with the
requirements of the 1933 Act, and any amendments or supplements thereto and such
other documents as the holders of the registered Eligible Shares may reasonably
request in order to facilitate the disposition of the registered Eligible Shares
after the Registration Statement has been declared effective. Agritope shall use
reasonable efforts to notify the holders of the registered Eligible Shares when
a prospectus relating to the Eligible Shares is required to be delivered under
the 1933 Act, to notify the holders of the registered Eligible Shares of the
happening of any event as a result of which the prospectus included in the
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, to file as promptly as may be practicable under the
circumstances such amendments and supplements as may be required on account of
such event, and to use its best efforts to cause each such amendment to become
effective. The holders of the registered Eligible Shares shall not effect sales
of Eligible Shares after receipt of notice from Agritope that any such amendment
or supplement is required on account of any such event, until the amendment
becomes effective or the supplement has been filed. Agritope's obligations
under this Section 5.3 shall expire at such time as Agritope is no longer
required to maintain the effectiveness of the Registration Statement as provided
for above.
5.4 Deferral for Material Events. If, because of a proposed material
acquisition or any other material event, the Agritope board of directors
reasonably determines that the filing or effectiveness of a Registration
Statement or of a supplement or amendment to the prospectus pursuant to this
Article V would be detrimental to Agritope, Agritope may defer such filing or
effectiveness for a period of up to 90 days after such filing or effectiveness
would otherwise ordinarily have occurred. For the purposes of the preceding
sentence, it shall be presumed that a Registration Statement would ordinarily be
filed 45 days after request under Section 5.2, that a supplement or amendment to
the prospectus would ordinarily be filed 10 days after notice referred to in
Section 5.3 and that the Registration Statement or any amendment to the
prospectus would ordinarily become effective five business days after filing an
acceleration request.
5.5 Furnish Information; Expenses. It shall be a condition precedent to
the obligations of Agritope in regard to the Eligible Shares to be registered
pursuant to Section 5.2 for any holder of such shares that the holder shall
furnish to Agritope such information regarding itself, the Eligible Shares held
by it, and the intended method of disposition of its Eligible Shares as shall be
required to effect the registration of its Eligible Shares, and shall agree to
be bound by the terms of this Article V if such holder is not already a party to
this Agreement.
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5.6 Expenses of Registration. All expenses relating to registration of
the Eligible Shares (other than underwriting discounts and commissions, transfer
taxes, if any, and fees and disbursements of counsel to the holders of the
Eligible Shares) incurred in connection with the registrations, filings or
qualifications pursuant to Section 5.3 above, including without limitation all
registration, filing and qualification fees, printing and accounting fees, and
fees and disbursements of counsel for Agritope, shall be borne by Agritope.
5.7 Indemnification.
(a) Indemnification by Agritope. To the extent
permitted by law, Agritope shall indemnify and hold harmless
the Purchaser, each other holder of Eligible Shares being
registered, and the officers, directors, partners, agents,
and employees of each holder or any underwriter (as defined
in the 0000 Xxx) of such Eligible shares, and each person, if
any, who controls the Purchaser, each other such holder or
such underwriter within the meaning of the 1933 Act or the
United States Securities Exchange Act of 1934, as amended
(the "1934 Act"), against any losses, claims, damages, or
liabilities (joint or several) to which they may become
subject under the 1933 Act, the 1934 Act, or other federal or
state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or
are based upon any of the following statements, omissions or
violations (a "Violation"):
(i) any untrue statement or alleged
untrue statement of a material fact contained
in the Registration Statement, including any
preliminary prospectus or final prospectus
contained therein or any amendments or
supplements thereto,
(ii) the omission or alleged omission
to state therein a material fact required to be
stated therein or necessary to make the
statements therein not misleading, or
(iii) any violation or alleged
violation by Agritope of the 1933 Act, the 1934
Act, any state securities law, or any rule or
regulation promulgated under the 1933 Act, the
1934 Act, or any state securities law.
Agritope shall reimburse the Purchaser and each such holder,
officer, director, partner, agent, employee, underwriter or
controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action.
The indemnity agreement contained in this subsection 5.7(a)
shall not apply to amounts paid in settlement of any loss,
claim, damage, liability, or action if such settlement is
effected without the consent of Agritope (which consent shall
not be unreasonably withheld), nor shall Agritope be liable
to the Purchaser or such other holder in any such case for
any such loss, claim, damage, liability, or action (A) to the
extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with
such registration by or on behalf of the Purchaser, such
other holder, or such underwriter or controlling person or
(B) in the case of a sale directly by the Purchaser or such
other holder of the Eligible Shares (including a sale of such
Eligible Shares through any underwriter retained by the
Purchaser or such other holder to engage in a distribution
- 7 -
solely on behalf of the Purchaser or such other holder), if
such untrue statement or alleged untrue statement or omission
or alleged omission was contained in a preliminary prospectus
and corrected in a final or amended prospectus, and the
Purchaser or such other holder failed to deliver a copy of
the final or amended prospectus at or prior to the
confirmation of the sale of the Eligible Shares to the person
asserting any such loss, claim, damage or liability in any
case where such delivery is required by the 1933 Act.
(b) Indemnification by Holders of the Shares. To the
extent permitted by law, the Purchaser and each other holder
of Eligible Shares being registered shall indemnify and hold
harmless Agritope, each of its directors, each of its
officers who have signed the Registration Statement, each
person, if any, who controls Agritope within the meaning of
the 1933 Act, each agent and underwriter for Agritope, each
other holder of shares selling securities covered by the
Registration Statement, each director, officer, partner,
agent, and employee of such other holder or underwriter, and
each person, if any, who controls such other holder or
underwriter, against any losses, claims, damages, or
liabilities (joint or several) to which Agritope or any such
director, officer, partner, agent, employee, controlling
person, underwriter, or other holder may become subject,
under the 1933 Act, the 1934 Act, or other federal or state
law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by or on
behalf of the Purchaser or such other holder expressly for
use in connection with such registration; and the Purchaser
or such other holder shall reimburse any legal or other
expenses reasonably incurred by Agritope or any such
director, officer, partner, agent, employee, controlling
person, underwriter, or other holder, in connection with
investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity
agreement contained in this subsection 5.7(b) shall not apply
to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected
without the consent of such holder, which consent shall not
be unreasonably withheld; and provided, further, that the
indemnification obligation of the Purchaser or such other
holder shall be limited to the aggregate public offering
price of the Eligible Shares sold by the Purchaser or such
other holder pursuant to such registration.
(c) Notice, Defense and Counsel. Promptly after
receipt by an indemnified party under this Section 5.7 of
notice of the commencement of any action (including any
governmental action), such indemnified party shall, if a
claim in respect thereof is to be made against any
indemnifying party under this Section 5.7, deliver to the
indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly
noticed, to assume and control the defense thereof with
counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to
retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying
party would be inappropriate due to actual or potential
differing interests between such indemnified party and any
other party represented by such counsel in such proceeding.
The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any
such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying
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party of any liability to the indemnified party under this
Section 5.7 to the extent of such prejudice, but the omission
so to deliver written notice to the indemnifying party shall
not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 5.7.
(d) Survival of Rights and Obligations. The
obligations of Agritope, the Purchaser, and any other holders
of Eligible Shares under this Section 5.7 shall survive the
completion of any offering of the Eligible Shares covered by
the Registration Statement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF AGRITOPE
To induce Purchaser to purchase the Shares, Agritope represents and
warrants to Purchaser as follows:
6.1 Organization, Etc. As of the Closing Date, Agritope will be a
corporation duly organized and validly existing under the laws of the state of
Delaware. Agritope has all requisite corporate power and authority to own its
properties and carry on its business as now conducted.
6.2 Authority. Agritope has all requisite corporate power and authority
to execute, deliver, and perform this Agreement. This Agreement has been duly
executed and delivered by Agritope and is the valid, legal, and binding
agreement of Agritope, enforceable against Agritope in accordance with its
terms. No consent of, approval by, filing with, or notice to any governmental
authority or any other person or entity is required for Agritope to execute,
deliver, and perform this Agreement, other than those that have been obtained,
made, or given.
6.3 Capitalization. The authorized capital stock of Agritope as of the
Closing Date will consist of 30,000,000 shares of common stock and 10,000,000
shares of preferred stock. Immediately following the Closing Date, the number of
shares of capital stock outstanding or issuable pursuant to options to purchase
Agritope Series A Preferred Stock shall not be more than 5,250,000, and shall
consist only of Agritope Common Stock and Agritope Series A Preferred Stock. No
right to purchase or acquire shares of any unissued capital stock of Agritope or
shares convertible into or exchangeable for such capital stock is authorized or
outstanding, other than as set forth on Exhibit C.
6.4 Valid Issuance; Title. When issued and paid for in accordance with
the terms of this Agreement, the Purchased Shares and the Option Shares will be
validly issued, fully paid, and nonassessable. Upon delivery to Purchaser of the
certificates representing the Purchased Shares and the Option Shares pursuant to
this Agreement, Purchaser will have valid, marketable title to the Purchased
Shares and the Option Shares, respectively, free and clear of all encumbrances,
other than restrictions on transfer described in this Agreement.
6.5 Disclosure Document. The financial statements contained in the
Disclosure Document (except as otherwise noted therein) were prepared in
conformity with U.S. generally accepted accounting principles, consistently
applied, and fairly present the financial position and the results of operations
at the date and for the year or period indicated.
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6.6 Tax Matters. Agritope has filed all required federal, state, and
other tax returns in a timely fashion and is not delinquent with respect to the
payment of any federal, state, or other taxes.
6.7 Assets Needed for Business. Agritope owns, leases, or otherwise has
the right to use all assets necessary for its present business.
6.8 Litigation and Other Contingent Liabilities. There are no actions
or proceedings pending or to the best of Agritope's knowledge threatened against
Agritope or any of its properties or assets or outstanding judgments or orders
to which Agritope is subject, which adversely affect Agritope's business,
operations, or financial condition. There is no action or proceeding pending or
to the best of Agritope's knowledge threatened against Agritope to restrain or
prohibit the sale of the Preferred Shares to Purchaser.
6.9 Absence of Certain Adverse Effects. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will (a) conflict with, result in any violation of, constitute a default
under, or give rise to a right of acceleration or termination under, any
provision of the articles of incorporation or bylaws of Agritope or any
agreement, mortgage, bond, indenture, agreement, franchise, or other instrument
or obligation to which Agritope is a party or by which it is bound, (b) result
in the creation of any encumbrance upon any of the assets or properties of
Agritope, (c) violate any judgment or order against, or binding upon, Agritope
or upon the Preferred Shares, assets, properties, or business of Agritope, or
(d) constitute a violation by Agritope of any law.
6.10 Business Plan. Agritope has provided to Purchaser a copy of its
business plan for the next five years.
6.11 No Brokers. Agritope has not hired any broker or finder or
incurred any liability for fees or commissions to any such person in connection
with this Agreement, other than American Equities Overseas (UK) Ltd.
6.12 Disclosure. Except as disclosed herein and in the Disclosure
Document, no representation or warranty by Agritope contained in this Agreement
or in the Disclosure Document contains any untrue statement of a material fact,
or omits to state any material fact required to make the statements herein or
therein contained not misleading.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Agritope as follows:
7.1 Corporate Existence; Execution and Performance of Agreement. If
Purchaser is a corporation, Purchaser is duly organized and validly existing
under the laws of the country listed on the cover page and has all requisite
corporate power and authority to execute, deliver, and perform this Agreement.
The execution, delivery, and performance of this Agreement by Purchaser will not
conflict with any provision of its articles of incorporation or bylaws or
similar charter documents (if Purchaser is a corporation) or with any
undertaking, agreement, indenture, decree, order, or judgment by which it is
bound and will not violate any law applicable to Purchaser.
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7.2 Binding Obligations; Due Authorization. This Agreement constitutes
the valid, legal, and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms. If Purchaser is a corporation, the
execution, delivery, and performance of this Agreement by Purchaser has been
duly and validly authorized by its board of directors and no other corporate
proceedings on the part of Purchaser are necessary to authorize its execution,
delivery, and performance of this Agreement. Purchaser is not required to obtain
any consent of or approval by, to make any filing with, or to give any notice
to, any governmental authority or any other person or entity for Purchaser to
execute, deliver, and perform this Agreement.
7.3 No Brokers. Purchaser has not hired any broker or agent or incurred
any liability for fees or commissions to any such person in connection with this
Agreement.
7.4 Litigation. There is no action or proceeding pending or threatened
against Purchaser before any court, other governmental body or arbitrator to
restrain or prohibit the purchase of the Preferred Shares.
7.5 Disclosure. No representation or warranty by Purchaser contained in
this Agreement contains any untrue statement of a material fact, or omits to
state any material fact required to make the statements herein not misleading.
ARTICLE VIII
COVENANTS
8.1 Best Efforts. Each party shall use such party's good faith efforts
to cause the transactions contemplated hereby to be consummated as soon as
practicable after the Spin-off has been consummated and the closing of the $9.4
million placement (the "Placement") being made as a condition of the Spin-off
has occurred.
8.2 Right of Access. Throughout the period from the date hereof through
the Closing Date, Agritope shall give Purchaser and its representatives,
including its counsel and accountants, on reasonable notice, full access during
normal business hours to all of Agritope's properties, documents, contracts,
books and records and such other information with respect to Agritope's business
affairs and properties as Purchaser may reasonably request.
8.3 Preservation of Business; Notice of Change. From the date hereof
through the Closing Date, (a) Agritope shall use its best efforts to conduct its
business in the usual and ordinary course consistent with past practice and all
applicable laws and in a manner that will not breach any of Agritope's
representations, warranties, and covenants in this Agreement and (b) Agritope
shall preserve its business organization intact.
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ARTICLE IX
CONDITIONS
9.1 Conditions Precedent to Obligations of Purchaser. The obligation of
Purchaser to effect the Closing is subject to the satisfaction, or waiver by
Purchaser, of each of the following conditions on or prior to the Closing:
(a) The Spin-off shall have occurred no later than
February 28, 1998, and the Placement proceeds shall have been
delivered to Agritope.
(b) Agritope shall have delivered certificates
representing the Purchased Shares to the Purchaser.
(c) All representations and warranties of Agritope
contained in this Agreement shall be true and correct in all
respects as of the Closing with the same effect as if such
representations and warranties had been made or given at and
as of the Closing, and all agreements, covenants and
conditions to be performed or met by Agritope on or prior to
the Closing shall have been so performed or met in all
respects, and there shall have been no material adverse
change in the financial or business condition of Agritope.
There shall have been no modification of any material
disclosure contained in the Disclosure Document since the
date of this Agreement.
(d) No action or proceeding shall have been
instituted or threatened before any court, other governmental
body or arbitrator (i) to restrain or prohibit the
transactions contemplated by this Agreement, (ii) that might
restrict the operation of Agritope's business in any material
respect if the purchase and sale of the Preferred Shares
hereunder is consummated, (iii) that might restrict the
ownership of the Preferred Shares or the exercise of any
rights with respect thereto by Purchaser, or (iv) that might
subject any of the parties hereto, to any liability, fine,
forfeiture or penalty on the ground that any of the parties
hereto has violated or will violate any applicable law in
connection with the transactions contemplated hereby.
(e) Purchaser shall have received an opinion of
Agritope's counsel to the effect that when issued and paid
for in accordance with the terms of this Agreement, the
Purchased Shares and Option Shares will be validly issued,
fully paid, and nonassessable, and addressing such other
matters as Purchaser may reasonably request not less than 15
days prior to Closing.
(f) Agritope shall simultaneously close with other
Purchasers who are buying Series A Preferred Stock on the
terms of Series A Preferred Stock Purchase Agreements similar
to this Agreement.
(g) Agritope shall have adopted and filed a
Certificate of Designation in the form attached as Exhibit D
to designate the rights, characteristics and preferences of
the Series A Preferred Stock.
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(h) Agritope's board of directors shall have adopted
resolutions authorizing election of a Director by holders of
Series A Preferred Stock pursuant to its Certificate of
Incorporation and Bylaws.
(i) The Rights Agreement approved by Agritope's
board of directors shall permit Purchaser and other holders
of Agritope Series A Preferred Stock to convert such shares
to Agritope Common Stock without being deemed "Acquiring
Persons" for purposes of the Rights Agreement and Agritope's
board of directors shall have adopted resolutions to the
effect that such holders are not "Adverse Persons" (as
defined in the Rights Agreement), subject to execution of a
standstill agreement in form and substance satisfactory to
Agritope.
(j) Agritope shall have entered into a Research
Agreement with Purchaser containing mutually agreeable terms.
(k) Agritope shall have delivered to Purchaser an
officer's certificate confirming the correctness of
Agritope's representations and warranties and satisfaction of
the foregoing closing conditions.
9.2 Conditions Precedent to Obligations of Agritope. The obligation of
Agritope to effect the Closing is subject to the satisfaction, or waiver by
Agritope, of each of the following conditions on or prior to the Closing:
(a) The Spin-off shall have occurred and the
Placement proceeds shall have been delivered to Agritope.
(b) Purchaser shall have paid the Purchase Price in
immediately available funds to Agritope.
(c) All representations and warranties of Purchaser
and Agritope contained in this Agreement shall be true and
correct in all respects as of the Closing with the same
effect as if such representations and warranties had been
made or given at and as of the Closing, and all agreements,
covenants and conditions to be performed or met by Purchaser
on or prior to the Closing have been so performed or met in
all respects.
(d) No action or proceeding shall have been
instituted or threatened before any court, other governmental
body or arbitrator to restrain or prohibit the transactions
contemplated in this Agreement or that might subject any of
the parties hereto to any liability, fine, forfeiture or
penalty on the ground that any of the parties hereto has
violated or will violate any applicable law in connection
with the transactions contemplated hereby.
(e) The issuance and sale of the Preferred Shares
shall not violate any applicable state, federal, or foreign
securities laws.
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ARTICLE X
PURCHASE OPTION
10.1 Grant of Option. Agritope hereby grants Purchaser the option (the
"Option") to purchase up to 785,715 shares of Agritope Series A Preferred Stock
at a price of $7.00 per share on the terms and conditions of this Agreement,
mutatis mutandis. The Option shall expire to the extent not exercised prior to
5:00 P.M. Pacific Standard Time on January 15, 1998. Purchaser may assign the
Option, in whole or in part, to an affiliate or related party, provided the
assignee is a person to whom the Option Shares may be sold without violation of
applicable securities laws. Without limiting the foregoing, the assignee must
not be a U.S. person, as that term is defined on Exhibit B, and must make the
investment representations set forth in Article IV hereof. In addition, the
Option may not be exercised unless the sale complies with Regulation S.
10.2 Exercise of Option. Purchaser (or its assignee) may exercise the
Option by giving Agritope notice thereof ("Notice of Exercise") at any time
before expiration of the Option. The Notice of Exercise shall specify the number
of shares purchased, the name and address of the purchaser if other than the
Purchaser, and a date of closing, which shall be subject to the reasonable
convenience of Agritope. Not later than five business days after the Notice of
Exercise is given, the Purchaser (or its assignee) shall pay the purchase price
in immediately available funds and shall complete and sign a counterpart of this
Agreement if the purchaser is an assignee of the Purchaser. Agritope shall
deliver to the Purchaser (or its assignee, as the case may be) a certificate for
the Option Shares purchased, together with an officer's certificate and an
opinion of Agritope's counsel; such officer's certificate and opinion shall be
substantially similar to those documents delivered at the initial Closing.
ARTICLE XII
OTHER MATTERS
11.1 Notices. Any notice, request, or demand under this Agreement shall
be in writing and shall be deemed to have been duly given and received (i) upon
personal delivery, (ii) upon fax transmission to the recipient at the fax number
listed below, provided that a copy of the fax is promptly deposited for delivery
by one of the methods listed in (iii) or (iv) below, (iii) ten days after
deposit in the mails, if sent certified or comparable form of mail with return
receipt requested, addressed to the recipient at the address listed below, or
(iv) five days after deposit if deposited for delivery with a reputable courier
or express service, addressed to the recipient at the address listed below:
If to Agritope: Agritope, Inc.
0000 X.X. Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
X.X.X.
Attention: President
Fax: 000.000.0000
If to Purchaser: Purchaser's address listed on the cover page
A party may change its address or fax number for purposes of this Section 11.1
by giving the other parties notice of the change.
- 14 -
11.2 Amendments and Waiver. This Agreement may be amended or modified
by, and only by, a written instrument executed by each of the parties hereto.
The terms of this Agreement may be waived by, and only by, a written instrument
executed by the party or parties against whom such waiver is sought to be
enforced.
11.3 Expenses. Each party to this Agreement shall pay its own expenses
(including, without limitation, the fees and expenses of such party's counsel
incidental to the preparation of and consummation of this Agreement).
11.4 Headings. The headings contained in this Agreement are for
convenience of reference only and shall not in any way affect the meaning or
interpretation of this Agreement.
11.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument. A facsimile transmission of a signed
original shall have the same effect as delivery of the signed original.
11.6 Parties in Interest; Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. This Agreement shall not be assigned by any
party hereto without the prior written consent of the other party.
11.7 Entire Agreement. This Agreement, together with all exhibits
hereto, constitutes the entire agreement and understanding between the parties
hereto relating to the subject matter hereof and supersedes any prior agreements
and understandings relating to such subject matter.
11.8 Severability. If any restriction in this Agreement exceeds that
permitted under applicable law, it shall be deemed modified to include the
maximum permissible restriction. If any provision is nonetheless held
unenforceable in any jurisdiction, the enforceability of this Agreement in any
other jurisdiction and the enforceability of the remaining provisions in that
jurisdiction shall not be affected.
11.9 Attorney Fees. In the event any party shall seek enforcement of
any covenant, warranty, indemnity, or other term or provision of this Agreement,
the party that prevails in such enforcement proceeding shall be entitled to
recover such reasonable costs and attorney fees which shall be determined by the
arbitrator or court (including any appellate court).
11.10 Survival. All the respective representations, warranties,
covenants, and other agreements of the parties hereunder or contained in any
schedule or certificate given in connection herewith or contemplated hereby
shall survive the Closing Date, except as they may be fully performed prior to
or at the Closing Date.
11.11 Form of Public Disclosures. Except as required by applicable law,
Purchaser shall not make any public disclosure concerning this Agreement and the
transactions contemplated herein unless Agritope has approved in advance the
form and substance thereof.
11.12 Cumulative Rights and Remedies. All the rights and remedies
provided to the parties under this Agreement are cumulative, and none is
exclusive of any other right or remedy a party may have hereunder or under
applicable law.
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11.13 No Third-Party Beneficiaries. Each party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person or entity other than the parties hereto and their
respective successors and permitted assigns.
11.14 Dispute Resolution.
(a) Conduct. Any dispute arising in connection with
this Agreement shall be finally settled by arbitration
referred to and conducted in accordance with the
International Arbitration Rules of the American Arbitration
Association, except as such rules may conflict with the
provisions of this section in which event the provisions of
this section shall control. Any party may be represented by
counsel therein. Any such arbitration shall be conducted by a
panel of one or more arbitrators selected in accordance with
the International Arbitration Rules of the American
Arbitration Association. The arbitration shall be conducted
in English in Portland, Oregon, U.S.A.
(b) Decision. Any decision or award of the arbitral
tribunal shall be final and binding upon the parties to the
arbitration proceeding. The arbitral tribunal's decision
shall include a reasonably detailed statement of the basis
for the decision and computation of the award, if any. The
parties further agree to exclude any right of application or
appeal to any court in connection with any question of law
arising in the course of the arbitration. The award may be
enforced against the parties to the arbitration proceeding or
their assets wherever they may be found. Judgment upon the
award may be entered in any court having jurisdiction thereof
or an application may be made to such court for judicial
acceptance of the award and an order of enforcement, as the
case may be.
(c) Costs. Except as the arbitral tribunal may
otherwise determine in its discretion, a party substantially
prevailing in the arbitration shall be entitled to recover
its attorney fees and costs, including the costs and expenses
of its witnesses, and the other parties shall pay the fees,
costs and expenses of the arbitral tribunal and the
administering and appointing authority.
11.15 Governing Law. This Agreement shall be governed by and construed
in accordance with the substantive law (but not the conflict of law rules) of
the state of Oregon.
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EXHIBIT B
CERTAIN DEFINITIONS UNDER REGULATION S
Set forth below is the text of Rule 902(o) promulgated under
the 1933 Act which defines "U.S. person" as follows:
(o) U.S. Person.
(1) "U.S. person" means:
(i) Any natural person resident in the United
States;
(ii) Any partnership or corporation organized or
incorporated under the laws of the United States;
(iii) Any estate of which any executor or
administrator is a U.S. person;
(iv) Any trust of which any trustee is a U.S.
person;
(v) Any agency or branch of a foreign entity located
in the United States;
(vi) Any nondiscretionary 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;
(vii) 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; and
(viii) 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 shares not registered under the
1933 Act, unless it is organized or incorporated, and owned,
by accredited investors (as defined in Rule 501(a)) who are
not natural persons, estates or trusts.
(2) Notwithstanding paragraph (o)(1) of this rule, any
discretionary account or similar account (other than an estate or trust) held
for the benefit or account of a non-U.S. person by a dealer or other
professional fiduciary organized, incorporated, or (if an individual) resident
in the United States shall not be deemed a "U.S. person."
(3) Notwithstanding paragraph (o)(1), any estate of which any
professional fiduciary acting as executor or administrator is a U.S. person
shall not be deemed a U.S. person if:
(i) An executor or administrator of the estate who
is not a U.S. person has sole or shared investment discretion
with respect to the assets of the estate; and
(ii) The estate is governed by foreign law.
- 1 -
(4) Notwithstanding paragraph (o)(1), any trust of which any
professional fiduciary acting as trustee is a U.S. person shall not be deemed a
U.S. person if a trustee who is not a U.S. person has sole or shared investment
discretion with respect to the trust assets, and no beneficiary of the trust
(and no settlor if the trust is revocable) is a U.S. person.
(5) Notwithstanding paragraph (o)(1), an employee benefit plan
established and administered in accordance with the law of a country other than
the United States and customary practices and documentation of such country
shall not be deemed a U.S. person.
(6) Notwithstanding paragraph (o)(1), any agency or branch of
a U.S. person located outside the United States shall not be deemed a "U.S.
person" if:
(i) The agency or branch operates for valid business
reasons; and
(ii) The agency or branch is engaged in the business
of insurance or banking and is subject to substantive
insurance or banking regulation, respectively, in the
jurisdiction where located.
(7) The International Monetary Fund, the International Bank
for Reconstruction and Development, the Inter-American Development Bank, the
Asian Development Bank, the African Development Bank, the United Nations, and
their agencies, affiliates and pension plans, and any other similar
international organizations, their agencies, affiliates and pension plans shall
not be deemed "U.S. persons."
Set forth below is the text of Rule 9.02(p) promulgated under
the 1933 Act which defines "United States" as follows:
(p) "United States" means the United States of America, its
territories and possessions, any State of the United States, and the District of
Columbia.
- 2 -
EXHIBIT C
RIGHTS TO ACQUIRE SHARES
Preferred Stock Purchase Rights, as described in the Information
Statement/Prospectus included in the Registration Statement on Form S-1 filed
with the Securities and Exchange Commission (File No. 333-34597) ( the "Form
S-1").
Options to purchase Agritope Common Stock issued or issuable under the 1997
Stock Award Plan, which provides for issuance of options to purchase up to
2,000,000 shares of Agritope Common Stock.
Rights to purchase Agritope Common Stock under the 1997 Employee Stock Purchase
Plan, which provides for the issuance of up to 250,000 shares of Agritope Common
Stock.
Warrants to be issued to Vector Securities International, Inc., in connection
with the Spin-off, as described in the Form S-1.
Warrants to be issued to American Equities Overseas, Inc., or its designees to
purchase 500,000 shares of Agritope Common Stock.
Options granted or to be granted to Purchaser and other purchasers of Agritope
Series A Preferred Stock, representing in the aggregate rights to purchase
785,715 shares of Agritope Series A Preferred Stock at a price of $7.00 per
share.
EXHIBIT D
Certificate of Designation
[Filed as Exhibit 3.3 to the Company's Registration Statement]
