Exhibit 10.13
SUBSCRIPTION AGREEMENT
Subscription Agreement, dated as of _________, 1997, between Ripe Touch
Greenhouses, Inc., a Delaware corporation (the "Company") and
________________________________ (the "Purchaser").
WHEREAS, the Purchaser desires to subscribe for, and the Company desires to
issue to the Purchaser, Second Private Placement Units (the "Units") consisting
of $25,000 principal amount of promissory notes (the "Notes"), substantially in
the form attached hereto as Exhibit A, and 5,000 of shares of common stock, par
value $.001 per share (the "Common Stock") of the Company (the "Shares"), all
upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
premises, covenants, representations and warranties herein contained, it is
hereby agreed as follows:
1. Subscription Price; Issuance.
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In reliance on the representations and warranties contained herein and
subject to the terms and conditions hereof, the Purchaser hereby subscribes for
___ Units and concurrently with delivery hereof has paid to the Company an
amount equal to $25,000 per Unit or $__________ in the aggregate, in immediately
available funds upon the execution and delivery of this Agreement, and the
Company will issue upon the closing as contemplated by the Memorandum (as
hereinafter defined) to the Purchaser a Note in the principal amount of $25,000
with respect to each such Unit and 5,000 Shares with respect to each such Unit.
2. Representations and Warranties of the Company.
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The Company represents and warrants to the Purchaser as follows:
2.1. Corporate Status.
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The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware with full corporate
power and authority to carry on its business as now conducted.
2.2. Authority of Agreement.
----------------------
The Company has the power and authority to execute and deliver
this Agreement and to carry out its obligations hereunder. The execution,
delivery and performance by the Company of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company and this Agreement
constitutes the valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally now or hereafter in effect and
subject to the application of equitable principles and the availability of
equitable remedies. The Company has reserved from its authorized but unissued
shares of Common Stock such number of shares as shall be deliverable to the
Purchaser upon the Closing of the units subscribed for hereby.
2.3. No Conflicts.
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The execution, delivery and performance of this Agreement and
the other instruments and agreements to be executed, delivered and performed by
the Company pursuant hereto and the consummation of the transactions
contemplated hereby and thereby by the Company do not and will not with or
without the giving of notice or the passage of time or both, violate or conflict
with or result in a breach or termination of any provision of, or constitute a
default under, the Certificate of Incorporation or the By-Laws of the Company or
any order, judgment, decree, statute, regulation, contract, agreement or any
other restriction of any kind or description to which the Company or its assets
may be bound or subject.
2.4 Fully Paid and Non-Assessable
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Upon issuance of the Shares and payment therefor pursuant to the
terms hereof, each share of Common Stock shall be validly issued, fully paid and
non-assessable.
3. Representations and Warranties of the Purchaser.
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The Purchaser represents and warrants to the Company as follows:
3.1. Status.
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If the Purchaser is a corporation or other entity, the Purchaser
is a corporation or other entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization with full power
and authority to execute, deliver and perform its obligations under this
Agreement. If the Purchaser is an individual, the Purchaser has legal capacity
to execute, deliver and perform his or her obligations under this Agreement.
3.2 Authority for Agreements.
------------------------
The Purchaser has the power and authority to execute and deliver
this Agreement and to carry out its obligations hereunder. The execution,
delivery and performance by the Purchaser of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of the Purchaser and this Agreement constitutes the
valid and legally binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws affecting the enforcement
of creditors' rights generally now or hereafter in effect and subject to the
application of equitable principles and the availability of equitable remedies.
3.3. No Conflicts.
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The execution, delivery and performance of this Agreement and the
other instruments and agreements to be executed, delivered and performed by the
Purchaser pursuant hereto and the consummation of the transactions contemplated
hereby and thereby by the Purchaser do not and will not with or without the
giving of notice or the passage of time or both, violate or conflict with or
result in a breach or termination of any provision of, or constitute a default
under, the Certificate of Incorporation or the By-Laws of the Purchaser (if the
Purchaser is a corporation), any other organizational instrument (if the
Purchaser is a legal entity other than a corporation) or any order, judgment,
decree, statute, regulation, contract, agreement or any other restriction of any
kind or description to which the Purchaser is a party or by which the Purchaser
may be bound.
3.4. Investor Representations and Acknowledgments.
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(a) The Purchaser is acquiring the Units for the Purchaser's own
account for investment only and not as nominee or agent and not with a view to,
or for sale in connection with, a distribution of the Units or its components
and with no present intention of selling, transferring, granting a participation
in or otherwise distributing, the Units or such components, all within the
meaning of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (the "Securities Act") and any applicable state, securities or
blue-sky laws.
(b) The Purchaser is not a party or subject to or bound by any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or pledge the Units or any part thereof to any person, and has no
present intention to enter into such a contract, undertaking, agreement or
arrangement.
(c) The Purchaser acknowledges to the Company that:
(i) The Company has advised the Purchaser that the Units and
their components have not been registered under the Securities Act or under
the laws of any state on the basis that the issuance thereof contemplated
by this Agreement is exempt from such registration;
(ii) The Company's reliance on the availability of such exemption
is, in part, based upon the accuracy and truthfulness of the Purchaser's
representations contained herein;
(iii) The Units and their components cannot be resold without
registration or an exemption under the Securities Act and such state
securities laws, and that certificates representing the Common Stock will
bear a restrictive legend to such effect;
(iv) The Purchaser has evaluated the merits and risks of
purchasing the Units, and has such knowledge and experience in financial
and business matters that the Purchaser is capable of evaluating the merits
and risks of such purchase, is aware of and has considered the financial
risks and financial hazards of purchasing the Units, and is able to bear
the economic risk of purchasing the Units, including the possibility of a
complete loss with respect thereto;
(v) The Purchaser has had access to such information regarding the
business and finances of the Company, including without limitation, the
Company's audited and unaudited financial statements included in the
disclosure documents delivered by the Company to the Purchaser, and has
been provided the opportunity to discuss with the Company's management the
business, affairs and financial condition of the Company and such other
matters with respect to the Company as would concern a reasonable person
considering the transactions contemplated by this Agreement and/or
concerned with the operation of the Company;
(vi) The Purchaser hereby covenants and agrees that Purchaser shall
not directly or indirectly, offer, offer to sell, contract to sell, pledge,
hypothecate, grant any option to purchase or otherwise dispose or transfer
(or announce any offer, offer of sale, sale, contract of sale, grant of any
option to purchase or other disposition or transfer), or agree to do any of
the foregoing, with respect to the Units and/or Shares, without the prior
written consent of Millennium Securities, Corp., for a period of up to
twenty-four (24) months after an initial public offering of Common Stock of
the Company, even if such Units or Shares are registered in such initial
public offering. The certificates representing the Units, Notes and the
Shares will bear a restrictive legend to such effect;
(vii) All the information which is set forth with respect to the
Purchaser in the Qualified Purchaser Questionnaire executed by the
Purchaser, all of which are incorporated herein by this reference, and all
of the Purchaser's representations and warranties set forth herein are
correct and complete as of the date of this Agreement, shall be true and
correct as of the closing of the transaction contemplated by this
Agreement, shall survive such closing and if there should be any material
change in such information prior to the sale to the Purchaser of the Units
the Purchaser will immediately furnish such revised or corrected
information to the Company; and
(viii) Additional Representations and Warranties of Accredited
Investors. The Purchaser, by initialing the applicable paragraph below (a)
through (g) hereby represents and warrants that the Purchaser is an
"Accredited Investor", because the Purchaser comes within one or more of
the enumerated categories. The Purchaser has reviewed the Investor
Suitability Standards attached as Annex A hereto and confirms it is an
"Accredited Investor" as indicated below. Place your initials in the space
provided in the beginning of each applicable paragraph, thereby
representing and warranting as to the applicability to the Purchaser of the
initialed paragraph or paragraphs:
[ ] (a) any individual Purchaser whose net worth, or joint net worth with
that person's spouse at the time of his purchase, exceeds $1,000,000 (including
any individual participant of a Xxxxx Plan, XXX or XXX Rollover Purchaser);
[ ] (b) any individual Purchaser who had an income in excess of $200,000 in
each of the two most recent years or joint income with that person's spouse in
excess of $300,000 in each of those years and who reasonably expects an income
in excess of the same income level in the current year (including any individual
participant of a Xxxxx Plan, XXX or XXX Rollover Purchaser);
[ ] (c) any corporation or partnership not formed for the specific purpose
of making an investment in the Common Stock, with total assets in excess of
$5,000,000;
[ ] (d) any trust, which is not formed for the specific purpose of
investing in the Common Stock, with total assets in excess of $5,000,000, whose
purchase is directed by a sophisticated person, as such term is defined in Rule
506(b) of Regulation D under the Securities Act;
[ ] (e) any ERISA Plan if the investment decision is made by a plan
fiduciary, as defined in section 3(21) of ERISA, which is either a bank,
insurance company, or registered investment adviser, or the Plan has total
assets in excess of $5,000,000;
[ ] (f) any entity in which all of the equity owners are Accredited
Investors under paragraphs (a), (b) or (c) above or any other entity meeting
required "Accredited Investor" standards under Rule 501 of Regulation D under
the Securities Act and applicable State securities law criteria;
[ ] (g) other (please explain)
4. Further Assurances.
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At any time and from time to time after the date hereof, each
party shall, without further consideration, execute and deliver to the other
such other instruments or documents and shall take such other actions as the
other may reasonably request to carry out the transactions contemplated by this
Agreement.
5. Miscellaneous.
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Any party may waive compliance by the other with any of the provisions of
this Agreement. No waiver of any provision shall be construed as a waiver of any
other provision. Any waiver must be in writing. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. This Agreement may not be modified
or amended except in writing signed by both parties hereto. This Agreement may
be executed in several counterparts, each of which shall be deemed an original,
and all of which shall constitute one and the same instrument. This Agreement
shall be governed in all respects, including validity, interpretation and
effect, by the laws of the State of Delaware, applicable to contracts made and
to be performed in Delaware. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the successors and assigns of the parties
hereto. This Agreement shall not be assignable by either party without the prior
written consent of the other, such consent not to be unreasonably withheld. The
rights and obligations contained in this Agreement are solely for the benefit of
the parties hereto and are not intended to benefit or be enforceable by any
other party, under the third party beneficiary doctrine or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
EXECUTION PAGE FOR SUBSCRIPTION BY INDIVIDUALS
(not applicable to subscriptions by entities, Individual
Retirement Accounts, Xxxxx Plans or ERISA Plans)
TOTAL SUBSCRIPTION AMOUNT $_______________________________.
[ ] INDIVIDUAL OWNER [ [ CUSTODIAN UNDER
(One signature required below) Uniform Gifts to Minors Act
[ ] JOINT TENANTS WITH RIGHT _________________________________
OF SURVIVORSHIP (Insert applicable state)
(All tenants must sign below) (Custodian must sign below)
[ ] TENANTS IN COMMON [ ] COMMUNITY PROPERTY
(All tenants must sign below) (Both spouses in community property
states must sign below)
Print information as it is to
appear on the Company records.
________________________________ __________________________________
(Name of Subscriber) (Social Security or Taxpayer ID No.)
________________________________
________________________________ __________________________________
(Home Address) (Home Telephone)
________________________________
________________________________ __________________________________(Business
Address) (Business Telephone)
________________________________ __________________________________
(Name of Co-Subscriber) (Social Security or Taxpayer ID No.)
________________________________
________________________________ __________________________________
(Home Address) (Home Telephone)
________________________________
________________________________ __________________________________
(Business Address) (Business Telephone)
SIGNATURE(S)
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Dated:______________, 1997.
(1)By:_________________________________ (2)By:__________________________________
Signature of Authorized Signatory Signature of Authorized Co-Signatory
_________________________________ _____________________________________
Print Name of Signatory and Title, Print Name of Co-Signatory and Title,
if applicable if applicable
ACCEPTED AND AGREED:
RIPE TOUCH GREENHOUSES, INC.
By:_________________________________ Dated:________________________, 1997.
Name:
Title:
(ACKNOWLEDGMENT FOR INDIVIDUALS)
STATE OF :
: s:
COUNTY OF :
On this _____________ day of ___________, 1997, before me, a notary public in
and for the state and county aforesaid, personally appeared
___________________________, known to me to be the person(s) whose name(s) is
(are) subscribed to the foregoing Subscription Agreement and acknowledged that
he, she or they executed the same.
_______________________________
Notary Public
EXECUTION PAGE FOR SUBSCRIPTION BY ENTITIES
TOTAL SUBSCRIPTION AMOUNT $__________________________.
[ ] EMPLOYMENT BENEFIT PLAN OR TRUST (including pension plan, profit
sharing plan, other defined contribution plan and SEP)
[ ] XXX, XXX ROLLOVER OR XXXXX PLAN
[ ] TRUST (other than employee benefit trust)
[ ] CORPORATION (Please include certified corporate resolution authorizing
signature)
[ ] PARTNERSHIP
[ ] OTHER ______________________________________________________________
Print information as it is to appear on the Company records.
________________________________ __________________________________________
(Name of Subscriber) (Taxpayer ID Number)
________________________________ (Plan number, if applicable)
________________________________ __________________________________________
(Address) (Telephone Number)
_____________________________________________________________________________
Name and Taxpayer ID number of sponsor, if applicable
The undersigned trustee, partner, corporate officer or fiduciary certifies
that he or she has full power and authority from all beneficiaries, partners or
shareholders of the entity named above to execute this Subscription Agreement on
behalf of the entity and to make the representations, warranties and agreements
made herein on their behalf and that investment in the Units has been
affirmatively authorized by the governing board or body of such entity and is
not prohibited by law or the governing documents of the entity.
SIGNATURE(S)
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Dated: __________________________, 1997.
By:_____________________________ By:________________________________________
Signature of Authorized Signatory Signature of Required Authorized Co-Signatory
________________________________ ________________________________________
Print Name of Signatory Print Name of Required Co-Signatory
________________________________ ________________________________________
Print Name of Signatory Print Title of Required Co-Signatory
ACCEPTED AND AGREED:
RIPE TOUCH GREENHOUSES, INC.
By:____________________________ Dated:___________________________, 1997
Name:
Title:
(ACKNOWLEDGMENT FOR ENTITIES)
STATE OF :
: ss:
COUNTY OF :
On this ___________ day of _______, 1997, before me personally came
_____________________ known to me, who, being by me duly sworn, did depose and
say that he or she is the __________ of ___________________________________, the
entity described in and which executed the foregoing Subscription Agreement;
that is was so affirmatively authorized by the governing board or body of such
entity; and that he or she signed his or her name thereto by like order.
____________________________
Notary Public
Annex A
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INVESTOR SUITABILITY STANDARDS
A purchase of the Units involves a high degree of risk and is suitable only
for persons of substantial financial means who have no need for liquidity in
their investments. The offer, offer for sale, and sale of the securities are
intended to be exempt from the registration requirements of the Securities Act
of 1933, as amended (the "Securities Act"), pursuant to Regulation D promulgated
thereunder ("Regulation D"), and are intended to be exempt from the requirements
of applicable state securities laws.
The Common Stock is being offered and sold only to "accredited investors," as
that term is defined in Regulation D.
Regulation D defines an "accredited investor" as follows:
(1) Any bank as defined in section 3(a)(2) of the Securities Act, or any
savings and loan association or other institution as defined in section
3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary
capacity; any broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934; any insurance company as defined in section
2(13) of the Securities Act; any investment company registered under the
Investment Company Act of 1940 or a business development company as defined in
section 2(a)(48) of that act; any Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment act of 1958; any plan established and maintained by a state,
its political subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, if such plan has total
assets in excess of $5,000,000; any employee benefit plan within the meaning of
the Employee Retirement Income Security Act of 1974 if the investment decision
is made by a plan fiduciary, as defined in Section 3(21) of such act, which is
or either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with investment decisions made solely
by persons that are accredited investors;
(2) Any private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940;
(3) Any organization described in Section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or partnership, not
formed for the specific purpose or acquiring the securities offered, with total
assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the issuer of
the securities being offered or sold, or any director, executive officer, or
general partner of a general partner of that issuer;
(5) Any natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of his or her purchase exceeds $1,000,000;
(6) Any natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with that person's spouse
in excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year;
(7) Any trust with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the securities offered, whose purchase is directed
by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D;
and
(8) Any entity in which all of the equity owners are accredited investors.
