AMENDED AND RESTATED UNIT PURCHASE AGREEMENT
Between
AGRITOPE, INC. ("Agritope") VILMORIN CLAUSE & CIE ("Purchaser")
00000 XX Xxxxx Xxxxxx Xxxxx Xx. Rue Limagrain
Xxxxxxxx, Xxxxxx 00000 B.P. 1
Fax: (000) 000-0000 00000 Xxxxxxx
Xxxxxx
Fax (00) 000 00 00 00
Purchaser agrees to purchase, and Agritope agrees to sell, units (the
"Units"), each Unit consisting of four (4) shares of Series A Preferred Stock,
$.01 par value per share, of Agritope and one five-year warrant to purchase one
(1) share of such Series A Preferred Stock at an exercise price of U.S. $7.00
per share, on the terms and conditions stated in this Unit Purchase Agreement:
1. NUMBER OF UNITS: 125,000
2. TOTAL PURCHASE PRICE AT U.S.$20.00 PER UNIT: U.S. $2,500,000
3. DOMICILE OF PURCHASER: France
(Country of organization, if a corporation or other entity; country of
residence, if an individual.)
4. WAIVER OF PREEMPTIVE RIGHTS: Subsequent to its purchase of Units
hereunder, Purchaser intends to sell 37,500 of such Units to Hazera
Quality Seeds Ltd., an Israeli corporation ("Hazera"). Purchaser, as
the current holder of all issued shares of Series A Preferred Stock,
hereby waives any and all preemptive rights to the extent the same may
be applicable (including those described in Section 7 of the
Certificate of Designation, Preferences and Rights of the Series A
Preferred Stock of Agritope, Inc.) with respect to such sales to
Hazera, and hereby consents to such sale.
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5. EXHIBITS. The following exhibits are part of this Unit Purchase
Agreement:
Exhibit A: General Terms
Exhibit B: Certain Definitions under Regulation S
Exhibit C: Rights to Acquire Shares
Exhibit D: Certificate of Designation
Exhibit E: Form of Warrant
6. THIRD PARTY BENEFICIARY: Agritope and Purchaser specifically intend
that Hazera shall benefit from and have the right to enforce the
registration rights provided in Article V of Exhibit A to this Unit
Purchase Agreement.
Dated: September 16, 1999
AGRITOPE, INC. VILMORIN CLAUSE & CIE
(Agritope) (Purchaser)
By /s/ Xxxxxx X. Xxxxx By /s/ Xxxxxx Xxxxxxxx
----------------------------- -----------------------------------
Xxxxxx X. Xxxxx Xxxxxx Xxxxxxxx
Chief Executive Officer President and Chief Executive
Officer
[29020-0401/10K_99 Ex 10.30 VCC Unit Purch.doc]
EXHIBIT A
UNIT PURCHASE AGREEMENT
GENERAL TERMS
NEITHER THE SHARES OF SERIES A PREFERRED STOCK NOR THE WARRANTS BEING SOLD
PURSUANT TO THIS AGREEMENT NOR THE UNITS THEREOF, NOR THE SHARES OF SERIES A
PREFERRED STOCK OR COMMON STOCK ISSUABLE UPON EXERCISE OF SUCH WARRANTS OR 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, WARRANTS,
AND UNITS 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.
[29020-0401/10K_99 Ex 10.30 VCC Unit Purch.doc]
TABLE OF CONTENTS
ARTICLE I. PURCHASE AND SALE OF UNITS ........................... 1
1.1 Sale of Units ........................................ 1
1.2 Payment and Delivery ................................. 1
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 ................................... 3
4.1 Investment Representations ........................... 3
4.2 Certain Restrictions ................................. 4
4.3 Disclosure Documents ................................. 4
ARTICLE V. REGISTRATION RIGHTS .................................. 5
5.1 Definitions .......................................... 5
5.2 Requested Registration ............................... 5
5.3 Registration Procedure ............................... 5
5.4 Deferral for Material Events ......................... 6
5.5 Furnish Information; Expenses ........................ 6
5.6 Expenses of Registration ............................. 6
5.7 Indemnification ...................................... 7
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF AGRITOPE ........... 9
6.1 Organization, Etc. ................................... 9
6.2 Authority ............................................ 9
6.3 Capitalization ....................................... 9
6.4 Valid Issuance; Title ................................ 9
6.5 Disclosure Documents ................................. 10
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 No Brokers ........................................... 10
6.11 Disclosure ........................................... 10
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ARTICLE VII. REPRESENTATIONS AND WARRANTIES OF PURCHASER .......... 11
7.1 Corporate Existence; Execution and Performance of
Agreement ............................................ 11
7.2 Binding Obligations; Due Authorization ............... 11
7.3 No Brokers ........................................... 11
7.4 Litigation ........................................... 11
7.5 Disclosure ........................................... 11
7.6 Access ............................................... 11
ARTICLE VIII. CONDITIONS ........................................... 12
8.1 Conditions Precedent to Obligations of Purchaser ..... 12
8.2 Conditions Precedent to Obligations of Agritope ...... 13
ARTICLE IX. OTHER MATTERS ........................................ 13
9.1 Notices .............................................. 13
9.2 Amendments and Waiver ................................ 14
9.3 Expenses ............................................. 14
9.4 Headings ............................................. 14
9.5 Counterparts ......................................... 14
9.6 Parties in Interest; Assignment ...................... 14
9.7 Entire Agreement ..................................... 14
9.8 Severability ......................................... 14
9.9 Attorney Fees ........................................ 15
9.10 Survival ............................................. 15
9.11 Form of Public Disclosures ........................... 15
9.12 Cumulative Rights and Remedies ....................... 15
9.13 No Third-Party Beneficiaries ......................... 15
9.14 Dispute Resolution ................................... 15
9.15 Governing Law ........................................ 16
[29020-0401/10K_99 Ex 10.30 VCC Unit Purch.doc] -ii-
UNIT PURCHASE AGREEMENT
GENERAL TERMS
RECITALS
A. Agritope is a publicly-traded corporation with authorized
capital of 30,000,000 shares of common stock ("Common Stock") and 10,000,000
shares of preferred stock subject to designation by Agritope's Board of
Directors pursuant to Agritope's certificate of incorporation. The Board of
Directors has designated a series of preferred stock having 1,000,000 authorized
shares pursuant to the Certificate of Designation in the form set forth in
Exhibit D to this Unit Purchase Agreement (the "Series A Preferred Stock").
B. Purchaser wishes to invest in Agritope (or, if Purchaser
already owns shares in Agritope, to increase such investment) by purchasing
Units (the "Unit(s)"), each consisting of four (4) shares of Series A Preferred
Stock (the "Purchased Shares") and a Warrant to purchase one (1) share of Series
A Preferred Stock (the "Warrant(s)"). The number of Units to be purchased
hereunder is provided in the cover page of the Unit Purchase Agreement of which
these General Terms are a part. Purchaser intends to hold the Series A Preferred
Stock purchased hereunder or issuable upon exercise of the Warrants (the
"Warrant Shares") (collectively the Purchased Shares and the Warrant Shares are
referred to herein as the "Preferred Shares"), and the shares of Common Stock
issuable upon conversion of the Preferred Shares, for investment.
AGREEMENT
The parties agree as follows:
ARTICLE I.
PURCHASE AND SALE OF UNITS
1.1 SALE OF UNITS
Upon the terms and conditions of this Agreement, Agritope shall issue
and sell the Units to Purchaser and Purchaser shall purchase the Units 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
and a Warrant in the form of Exhibit E to this Unit Purchase Agreement, covering
a number of Warrant Shares equal to the number of Units purchased hereunder by
the Purchaser and providing for an Expiration Date (as defined therein) on the
fifth anniversary of the Closing date (the "Purchaser's Warrant").
[29020-0401/10K_99 Ex 10.30 VCC Unit Purch.doc] -1-
ARTICLE II.
CLOSING
2.1. CLOSING
The sale of the Units shall be consummated at a closing (the "Closing")
on or before the third business day after Agritope notifies Purchaser that
Agritope is prepared to close such sale, subject to the satisfaction of the
conditions stated in Article VIII below which are to be satisfied at or before
Closing.
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 stoc certificates
representing the Purchased Shares.
(c) Agritope shall deliver to Purchaser the Purchaser's
Warrant.
(d) Agritope shall deliver to Purchaser an opinion of
Agritope's counsel as described in Section 8.1(e) below.
(e) The parties shall take all other actions that they
deem necessary or desirable to consummate the purchase and sale of the
Units 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. 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, THE CONVERSION SHARES,
NOR PURCHASER'S WARRANT HAVE BEEN REGISTERED UNDER
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THE 1933 ACT. THE PREFERRED SHARES, CONVERSION SHARES AND PURCHASER'S
WARRANT 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, the Conversion Shares, and Purchaser's Warrant and
further agrees that it shall not offer, sell, transfer, pledge or
otherwise dispose of the Preferred Shares, the Conversion Shares or
Purchaser's Warrant 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."
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.
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(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) FRANCE. If this Agreement and any related documents
are issued, circulated, or distributed to Purchaser in France,
Purchaser hereby acknowledges that this Agreement has been supplied in
the context of a private placing and that the placing of the Units, 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 Units, 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.
(b) ISRAEL. If this Agreement and any related documents
are issued, circulated, or distributed to Purchaser in Israel,
Purchaser hereby acknowledges that this Agreement has been supplied in
the context of a private placing for a designated oferee and not for
solicitation to the public. Purchaser hereby undertakes not to transfer
or assign directly or indirectly the Preferred Shares or the Conversion
Shares in Israel subsequent to their subscription, unless it is
permitted by Israeli law. 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.
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4.3 DISCLOSURE DOCUMENTS
Agritope has furnished or made available to Purchaser (whether in
tangible form or electronically, such as through XXXXX) complete copies of all
reports or registration statements filed by Agritope in the last 18 months with
the U.S. Securities and Exchange Commission under the United States Securities
Exchange Act of 1934, as amended (the "1934 Act"). Such reports and statements
are referred to herein as the "Disclosure Documents."
ARTICLE V.
REGISTRATION RIGHTS
5.1 DEFINITIONS
(a) "Eligible Shares" refers to shares of Common Stock
issuable upon conversion of 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
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 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 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
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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.
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.
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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 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 violationor 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 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.
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(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 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
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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.
Agritope is 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 shall not be more than 5,800,000, and shall consist only of
Common Stock and Series A and C 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 Preferred Shares will be validly issued, fully paid, and
nonassessable. Upon delivery to Purchaser of the certificates representing the
Preferred Shares pursuant to this Agreement or pursuant to an exercise of
Purchaser's Warrant by Purchaser, Purchaser will have valid, marketable title to
the Preferred Shares, free and clear of all encumbrances, other than
restrictions on transfer described in this Agreement.
6.5 DISCLOSURE DOCUMENTS
The financial statements contained in the Disclosure Documents (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 certificate 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 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.
6.11 DISCLOSURE
Except as disclosed herein and in the Disclosure Documents, no
representation or warranty by Agritope contained in this Agreement or in the
Disclosure Documents 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
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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.
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 Units or 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.
7.6 ACCESS
As of the Closing, Agritope has afforded to Purchaser and its
representatives, including its counsel and accountants, such access 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 has requested.
ARTICLE VIII.
CONDITIONS
8.1 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) Agritope shall have delivered certificates representing
the Purchased Shares to the Purchaser.
(b) Agritope shall have delivered Purchaser's Warrant to
the Purchaser.
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(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 Preferred Shares will be validly
issued, fully paid, and nonassessable.
(f) The Rights Agreement approved by Agritope's board of
directors shall permit Purchaser and other holders of Series A
Preferred Stock to convert such shares to 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.
(g) 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.
8.2 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) Purchaser shall have paid the Purchase Price in
immediately available funds to Agritope.
(b) Agritope shall simultaneously close the sale of a total
of 125,000 Units to Vilmorin Clause & Cie. and Hazera Quality Seeds
Ltd., inclusive of the Units to be sold to Purchaser under this
Agreement.
(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
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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 Units and the Preferred
Shares shall not violate any applicable state, federal, or foreign
securities laws.
ARTICLE IX.
OTHER MATTERS
9.1 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.
00000 XX Xxxxx Xxxxxx Xxxxx Xx.
Xxxxxxxx, 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 9.1 by
giving the other parties notice of the change.
9.2 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.
9.3 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).
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9.4 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.
9.5 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.
9.6 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.
9.7 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.
9.8 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.
9.9 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).
9.10 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.
9.11 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.
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9.12 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.
9.13 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.
9.14 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.
9.15 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 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;
(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
securities not registered under the 1933 Act,
unless it is organized or incorporated, and owned,
by accredited investors (as defined in Rule 501(a)
under the Act (ss.230.501(a) of this chapter)) who
are not natural persons, estates or trusts.
(2) Notwithstanding paragraph (o)(1) of this section, 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) of this section, 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:
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(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.
(4) Notwithstanding paragraph (o)(1) of this section, 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) of this section, 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) of this section, 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.
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EXHIBIT C
RIGHTS TO ACQUIRE SHARES
See the Disclosure Documents for more detailed descriptions of rights.
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 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 Common Stock.
Rights to purchase Common Stock under the 1997 Employee Stock Purchase Plan,
which provides for the issuance of up to 250,000 shares of Common Stock.
38,722 shares of Common Stock reserved for issuance as matching contributions
under Agritope's 401(k) plan.
Warrants issued to Vector Securities International, Inc. in connection with the
spin-off of Agritope by Epitope, Inc. on December 30, 1997, to purchase up to
83,333 shares of Common Stock at a price of $7.343 per share, as described in
the Form S-1.
Warrants issued to American Equities Overseas, Inc. and eight of its
unaffiliated European designees, to purchase up to a total of 500,000 shares of
Common Stock at a price of $7.00 per share.
Warrants granted or to be granted to Purchaser and other purchasers of Units,
representing in the aggregate, rights to purchase 125,000 shares of Series A
Preferred Stock at a price of $7.00 per share.
Warrants granted to or to be granted to Xxxxx-Xxxxxxx, X.X. to purchase up to a
total of 250,00 shares of Series C Preferred Stock at a price of $7.00 per
share.
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EXHIBIT D
CERTIFICATE OF DESIGNATION,
PREFERENCES AND RIGHTS OF
THE SERIES A PREFERRED STOCK
OF
AGRITOPE, INC.
(Pursuant to Section 151 of the General Corporation Law of the state of
Delaware)
--------------------
The undersigned officers of Agritope, Inc., a corporation organized and existing
under the General Corporation Law of the state of Delaware (the "Corporation"),
in accordance with the provisions of Section 103 thereof, do hereby certify:
That, pursuant to authority conferred upon the Board of Directors of the
Corporation by its Certificate of Incorporation, and pursuant to Section 151 of
the Delaware General Corporation Law , the Board of Directors adopted the
following resolution creating a series of 1,000,000 shares of Preferred Stock,
par value $.01 per share, designated as Series A Preferred Stock:
RESOLVED, that, pursuant to the authority vested in the Board of Directors of
the Corporation in accordance with the provisions of its Certificate of
Incorporation, a new series of Preferred Stock of the Corporation be, and it
hereby is, created, and that the designation and amount thereof and the voting
powers, preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:
SERIES A PREFERRED STOCK
1. Designation and Amount. The shares of such series of Preferred
Stock shall be designated as "Series A Preferred Stock," and the number of
shares constituting such series be 1,000,000.
2. Par Value. The par value of the Series A Preferred Stock
shall be $.01 per share.
3. Dividends and Distributions
(a) The Corporation shall not declare, set aside or pay any
dividends or other distributions (as defined below) on shares of Common Stock
unless and until the Corporation shall have declared, set aside or paid a
dividend or other distribution with respect to each share of Series A Preferred
Stock then outstanding in an amount at least equal to the product of (i) the per
share amount, if any, of the dividends or other distributions to be declared,
paid or set aside for the Common Stock, multiplied by (ii) the number of whole
shares of Common Stock into which the shares of Series A Preferred Stock are
then convertible.
(b) For purposes of this Section 3, unless the context
requires otherwise, "distribution" shall mean the transfer of cash or property
without consideration, whether by way of dividend or otherwise, payable other
than in Common Stock, or the purchase or redemption of shares of the Corporation
(other than repurchases of Common Stock held by employees or directors of, or
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consultants to, the Corporation upon termination of their employment or
services and other than redemptions in liquidation or dissolution of the
Corporation) for cash or property, including any such transfer, purchase or
redemption by a subsidiary of this Corporation. All payments due under this
Section 3 shall be made to the nearest cent.
(c) Anything in this Section 3 to the contrary
notwithstanding, stock dividends on Series A Preferred Stock shall be made in
shares of Series A Preferred Stock only.
4. Liquidation, Dissolution or Winding Up
(a) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of shares
of Series A Preferred Stock then outstanding shall be entitled to be paid out of
the assets of the Corporation available for distribution to its stockholders,
pari passu with the payment of all amounts required to be distributed to the
holders of Common Stock, but before any payment shall be made to the holders of
any other class or series of stock ranking on liquidation junior to the Series A
Preferred Stock.
5. Voting
(a) In addition to voting rights provided by the General
Corporation Law of the state of Delaware, the holders of the Series A Preferred
Stock voting as one class shall have the right to elect one director to the
Corporation's Board of Directors annually, so long as not less than 214,285 of
the shares of Series A Preferred Stock originally issued are outstanding. The
holders of the Series A Preferred Stock also shall have voting rights for any
other purpose pari passu with holders of Common Stock as one class, provided
that each share of Series A Preferred Stock shall entitle the holder to such
number of votes equal to the number of shares of Common Stock (rounded to the
nearest whole number) into which the Series A Preferred Stock is then
convertible under the terms provided below.
(b) The Corporation shall not amend, alter or repeal the
preferences, special rights or other powers of the Series A Preferred Stock so
as to affect adversely the Series A Preferred Stock, without the written consent
or affirmative vote of the holders of a majority of the then outstanding shares
of Series A Preferred Stock, given in writing or by vote at a meeting. The
number of authorized shares of Series A Preferred Stock may be decreased (but
not below the number of shares then outstanding) by the directors of the
Corporation pursuant to the General Corporation Law of Delaware, but may be
increased (other than increases necessary to issue stock dividends of Series A
Preferred Stock on the outstanding shares of Series A Preferred Stock) only by
the affirmative vote of the holders of a majority of the then outstanding shares
of Series A Preferred Stock, voting as a single class.
6. Optional Conversion. The holders of the Series A Preferred
Stock shall have conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series A Preferred
Stock shall be convertible, at the option of the holder thereof, at any time and
from time to time, and without the payment of additional consideration by the
holder thereof, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing (i) $7.00 by (ii) the Series A
Conversion Price, in each instance as such Conversion Price is in effect at the
time of conversion. The "Series A Conversion Price" initially shall be $7.00.
The rate at which shares of Series A Preferred Stock may be converted into
shares of Common Stock shall be subject to adjustment as provided below; such
adjusted Conversion Price and rate of conversion thereafter shall be applicable
to the
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outstanding shares of Series A Preferred Stock and any newly issued shares of
such series (as, for example, the result of a stock dividend).
In the event of a liquidation, dissolution or winding up of
the Corporation, the Conversion Rights shall terminate at the close of business
on the fifth business day preceding the date fixed for the payment of any
amounts distributable on liquidation to the holders of Series A Preferred Stock.
(b) Fractional Shares. No fractional shares of Common
Stock shall be issued upon conversion of Series A Preferred Stock. In lieu of
any fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the then
effective Conversion Price.
(c) Mechanics of Conversion
(i) In order for a holder of Series A Preferred Stock
to convert shares of Series A Preferred Stock into shares of Common Stock, such
holder shall surrender the certificate or certificates for such shares of Series
A Preferred Stock, at the office of the Corporation's transfer agent (or at the
principal office of the Corporation if the Corporation serves as its own
transfer agent), together with written notice that such holder elects to convert
all or any number of the shares of the Series A Preferred Stock represented by
such certificate or certificates. Such notice shall state such holder's name or
the names of the nominees in which such holder wishes the certificate or
certificates for shares of Common Stock to be issued. If required by the
Corporation, certificates surrendered for conversion shall be endorsed or
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the registered holder or the
holder's attorney duly authorized in writing. The date of receipt of such
certificates and notice to the transfer agent (or to the Corporation if the
Corporation serves as its own transfer agent) shall be the conversion date (the
"Conversion Date"). The Corporation shall, as soon as practicable after the
Conversion Date, issue and deliver at such office to such holder of Series A
Preferred Stock, or to the holder's nominees, a certificate or certificates for
the number of shares of Common Stock to which such holder shall be entitled,
together with cash in lieu of any fraction of a share.
(ii) The Corporation shall at all times when any
Series A Preferred Stock shall be outstanding, reserve and keep available out of
its authorized but unissued stock, for the purpose of effecting the conversion
of such Series A Preferred Stock, such number of its duly authorized shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding shares of such Series A Preferred Stock.
(iii) Upon any such conversion, no adjustment to the
Conversion Price shall be made for any declared or accrued but unpaid dividends
on any Series A Preferred Stock surrendered for conversion or on the Common
Stock delivered upon conversion.
(iv) All shares of Series A Preferred Stock which
shall have been surrendered for conversion as herein provided shall no longer be
deemed to be outstanding and all rights with respect to such shares, including
the rights, if any, to receive notices and to vote, shall immediately cease and
terminate on the Conversion Date, except only the right of the holders thereof
to receive shares of Common Stock (and cash in lieu of any fractional share) in
exchange therefor and payment of any dividends declared but unpaid thereon. Any
shares of Series A Preferred Stock so converted shall be retired and canceled
and shall not be reissued, and the Corporation (without the
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need for stockholder action) may from time to time take such appropriate action
as may be necessary to reduce the authorized Series A Preferred Stock
accordingly.
(v) The Corporation shall pay any and all issue
and other taxes that may be payable in respect of any issuance or delivery of
shares of Common Stock upon conversion of shares of Series A Preferred Stock
pursuant to this Section 6. The Corporation shall not, however, be required to
pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of shares of Common Stock in a name other than that in
which the shares of the Series A Preferred Stock so converted were registered,
and no such issuance or delivery shall be made unless and until the person or
entity requesting such issuance has paid to the Corporation the amount of any
such tax or has established, to the satisfaction of the Corporation, that such
tax has been paid.
(d) Adjustment for Stock Splits and Combinations. If the
Corporation shall, at any time or from time to time after the date on which a
share of Series A Preferred Stock was first issued (the "Original Issue Date"),
effect a subdivision of the outstanding Common Stock, the Conversion Price then
in effect immediately before that subdivision shall be proportionately
decreased. If the Corporation shall at any time or from time to time after the
Original Issue Date combine the outstanding shares of Common Stock, the
Conversion Price then in effect immediately before the combination shall be
proportionately increased. Any adjustment under this paragraph shall become
effective at the close of business on the date the subdivision or combination
becomes effective.
(e) Adjustment for Certain Dividends and Distributions.
In the event the Corporation, at any time or from time to time after the
Original Issue Date, shall make or issue, or fix a record date for the
determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock, then and in
each such event the Conversion Price for Series A Preferred Stock then in effect
shall be decreased as of the time of such issuance or, in the event such a
record date shall have been fixed, as of the close of business on such record
date, by multiplying the Conversion Price then in effect by a fraction:
(1) the numerator of which shall be the total number
of shares of Common Stock issued and outstanding immediately prior to
the time of such issuance or the close of business on such record date,
and
(2) the denominator of which shall be the total
number of shares of Common Stock issued and outstanding immediately
prior to the time of such issuance or the close of business on such
record date plus the number of shares of Common Stock issuable in
payment of such dividend or distribution;
provided, however, if such record date shall have been fixed and such dividend
is not fully paid or if such distribution is not fully made on the date fixed
therefor, the Conversion Price for Series A Preferred Stock shall be recomputed
accordingly as of the close of business on such record date and thereafter the
Conversion Price for Series A Preferred Stock shall be adjusted pursuant to this
paragraph as of the time of actual payment of such dividends or distributions.
Notwithstanding the foregoing, the shares of Common Stock issuable upon
conversion of the Series A Preferred Stock shall be deemed outstanding for all
calculations under this Subsection 6(e).
(f) Adjustments for Other Dividends and Distributions. In
the event the Corporation, at any time or from time to time after the Original
Issue Date for Series A Preferred Stock, shall make or issue, or fix a record
date for the determination of holders of Common Stock
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entitled to receive, a dividend or other distribution payable in securities of
the Corporation other than shares of Common Stock, then and in each such event
provision shall be made so that the holders of Series A Preferred Stock shall
receive upon conversion thereof, in addition to the number of shares of Common
Stock receivable thereupon, the amount of securities of the Corporation that
they would have received had such Series A Preferred Stock been converted into
Common Stock on the date of such event and had thereafter, during the period
from the date of such event to and including the conversion date, retained such
securities receivable by them as aforesaid during such period, giving
application to all adjustments called for during such period under this
paragraph with respect to the rights of the holders of Series A Preferred Stock.
(g) Adjustment for Reclassification, Exchange or
Substitution. If the Common Stock issuable upon the conversion of Series A
Preferred Stock shall be changed into the same or a different number of shares
of any class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
or stock dividend provided for above, or a reorganization, merger, consolidation
or sale of assets provided for below), then and in each such event the holder of
each such share of Series A Preferred Stock shall have the right thereafter to
convert such share into the kind and amount of shares of stock and other
securities and property receivable upon such reorganization, reclassification or
other change, by holders of the number of shares of Common Stock into which such
shares of Series A Preferred Stock might have been converted immediately prior
to such reorganization, reclassification or change, all subject to further
adjustment as provided herein.
(h) Adjustment for Merger or Reorganization, etc. In case
of any consolidation or merger of the Corporation with or into another
corporation, or the sale of all or substantially all of the assets of the
Corporation to another corporation each share of Series A Preferred Stock shall
thereafter be convertible (or shall be converted into a security which shall be
convertible) into the kind and amount of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock of the
Corporation deliverable upon conversion of Series A Preferred Stock would have
been entitled upon such consolidation, merger or sale; and, in such case,
appropriate adjustment (as determined in good faith by the Board of Directors)
shall be made in the application of the provisions in this Section 6 set forth
with respect to the rights and interest thereafter of the holders of Series A
Preferred Stock, to the end that the provisions set forth in this Section 6
(including provisions with respect to changes in and other adjustments of the
Conversion Price) shall thereafter be applicable, as nearly as reasonably may
be, in relation to any shares of stock or other property thereafter deliverable
upon the conversion of Series A Preferred Stock.
(i) No Impairment. The Corporation will not, by
amendment of its Certificate of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Corporation, but will at all times in good faith assist in the carrying out of
all the provisions of this Section 6 and in the taking of all such action as may
be necessary or appropriate in order to protect the Conversion Rights of the
holders of Series A Preferred Stock against impairment.
(j) Certificate as to Adjustments. Upon the occurrence
of each adjustment or readjustment of the Conversion Price pursuant to this
Section 6, the Corporation at its expense shall promptly compute such adjustment
or readjustment in accordance with the terms hereof and furnish to each holder
of Series A Preferred Stock a certificate, signed by the Corporation's chief
financial officer, setting forth such adjustment or readjustment and showing in
detail the facts upon which such adjustment or readjustment is based. The
Corporation shall, upon the written request at any time of any
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holder of Series A Preferred Stock, furnish or cause to be furnished to such
holder a similar certificate setting forth (i) such adjustments and
readjustments, (ii) the Conversion Price then in effect, and (iii) the number of
shares of Common Stock and the amount, if any, of other property which then
would be received upon the conversion of Series A Preferred Stock.
(k) Notice of Record Date. In the event:
(i) that the Corporation declares a
dividend (or any other distribution) on its Common Stock
payable in Common Stock or other securities of the
Corporation;
(ii) that the Corporation subdivides or
combines its outstanding shares of Common Stock
(iii) of any reclassification of the Common
Stock of the Corporation (other than a subdivision or
combination of its outstanding shares of Common Stock or a
stock dividend or stock distribution thereon), or of any
consolidation or merger of the Corporation into or with
another corporation, or of the sale of all or substantially
all of the assets of the Corporation; or
(iv) of the involuntary or voluntary
dissolution, liquidation or winding up of the Corporation;
then the Corporation shall cause to be filed at its principal office and shall
cause to be mailed to the holders of Series A Preferred Stock at their last
addresses as shown on the records of the Corporation or its transfer agent, at
least 10 days prior to the date specified in (A) below or 20 days before the
date specified in (B) below, a notice stating
(A) the record date of such dividend, distribution,
subdivision or combination, or, if a record is not to be taken, the
date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, subdivision or combination are to be
determined, or
(B) the date on which such reclassification,
consolidation, merger sale, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale,
dissolution or winding up.
7. Preemptive Rights.
(a) Subject to the provisions of Section 7(f), in case of
the proposed issuance or granting by the Corporation of shares of any class of
capital stock (whether heretofore or hereafter authorized) or notes, bonds,
debentures or other securities convertible into, or carrying options or warrants
to purchase shares of any class of capital stock (all of which are collectively
referred to herein as "equity securities"), the Corporation shall afford to each
holder of Series A Preferred Stock the preemptive right to subscribe for,
purchase or receive such securities, in such proportion as would, as nearly as
practicable, preserve such holder's relative equity position on a Common Stock
equivalent basis arising from such holder's ownership of shares of Series A
Preferred
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Stock then held by such stockholder), on the terms and conditions provided in
Sections 7(b) through 7(f), inclusive.
(b) Notice. Written notice of the proposed issuance or
granting of securities within the scope of Section 7(a) shall be given to each
holder of Series A Preferred Stock not less than 30 days prior to the proposed
date of issuance or granting, setting forth the principal terms and conditions
of the proposed issuance or granting, including the aggregate number of
securities to be issued or granted, the price therefor, and, if a security other
than shares or authorized capital stock, the significant terms thereof, the
proportionate amount of such securities which such holder shall have the right
to purchase pursuant to Section 7(a) and the price to be paid by and other terms
offered to the holder therefor, which price and principal terms shall be not
less favorable than the price and terms at which such securities are proposed to
be offered for sale to others.
(c) Subscription. A shareholder of Series A Preferred
Stock by written notice given to the Corporation not less than 15 days prior to
the proposed date of issuance or granting, may subscribe for or agree to
purchase up to the entire amount of securities covered by the holder's
proportionate right at the price and upon the terms set forth in said notice.
(d) Enforceability. Upon giving notice to the Company in
accordance with Section 7(c), such holder of Series A Preferred Stock shall be
obligated as if the holder had executed a subscription agreement containing the
price and terms stated in the notice given pursuant to Section 7(a) and the
Corporation thereafter may enforce such agreement pursuant to the provisions of
Delaware law; provided, however, that a stockholder's obligation to purchase any
securities hereunder shall be conditioned upon the issuance or granting by the
Corporation of the securities at the price and on the terms and conditions set
forth in the Corporation's notice given to the stockholder in accordance with
Section 7(b).
(e) Free Period. If a holder of Series A Preferred Stock
shall not exercise such holder's preemptive rights in the manner and time set
forth in Section 7(c), then the Corporation may thereafter for a period not
exceeding 120 days following the expiration of said time period issue, grant,
sell or subject to rights or options (upon the terms and conditions and at the
price or prices set forth in the Corporation's notice) the securities described
in the notice given to such stockholder by the Corporation in accordance with
Section 7(b), which such stockholder would have been entitled to purchase, free
of the stockholder's preemptive rights herein provided; any such securities not
so issued, granted, sold or subjected to rights or options of others during such
120-day period shall thereafter again be subject to the preemptive rights
provided in Section 7(a).
(f) Exempt Transactions. Shares of capital stock or
other securities proposed to be issued or granted by the Corporation shall not
be subject to preemptive rights under Section 7(a) if they (a) are securities
issued by the Corporation to effect a merger, consolidation or acquisition of a
business or company on a stock-for-stock or stock-for-assets basis or are
offered or subject to rights or options for consideration other than cash as
part of such acquisition; (b) are to be issued to satisfy conversion, option or
contingent Common Stock issuances or warrant rights heretofore authorized or
granted by the Corporation; (c) are sold, issued or granted to employees,
directors or consultants pursuant to a plan or agreement approved by vote of the
Corporation's stockholders; (d) are treasury shares; (e) are to be issued under
a plan of reorganization approved in a proceeding under any applicable act of
Congress relating to reorganization of corporations; (f) are issued in
connection with a registered public offering of the Corporation's securities on
behalf of the Corporation pursuant to an effective Registration Statement
pursuant to the Securities Act of 1933, as amended; (g) are granted in
transactions not to exceed, in each case, an amount equal to 5 percent of the
total of outstanding shares
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of Common Stock as at the date of such transaction with (i) underwriters in
connection with the public offering of the Corporation's securities on behalf of
the Corporation pursuant to an effective Registration Statement pursuant to the
Securities Act of 1933, as amended; (ii) finders or brokers in connection with a
private placement or public offering of the Corporation's securities on behalf
of the Corporation; or (iii) financial institutions (including, but not limited
to, banks, trust companies, investment companies, insurance companies or pension
or profit-sharing trusts) in connection with financing furnished to the
Corporation, if such financing is in the form of loans or non-convertible debt
or is approved by the Corporation's stockholders; or (h) are issuable in
connection with the exercise of rights under the Corporation's stockholder
rights plan.
IN WITNESS WHEREOF, we have executed and attested this Certificate of
Designation on behalf of the Corporation this 1st day of December, 1997. We
further declare under penalty of perjury under the laws of the state of Delaware
that the matters set forth herein are, to our knowledge, true and correct.
AGRITOPE, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Xxxxxx X. Xxxxx
Chairman, President and Chief Executive Officer
Attest:
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx, Secretary
