EXHIBIT 4.1
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
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THIS OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT dated as of ___________,
1996 (the "Agreement"), is executed in reliance upon the exemption from
registration afforded by Regulation S ("Regulation S") as promulgated by the
Securities and Exchange Commission ("SEC"), under the Securities Act of 1933, as
amended. Capitalized terms used herein and not defined shall have the meanings
given to them in Regulation S.
This Agreement has been executed by the undersigned "Buyer" in connection
with the private placement of 8.0% Convertible Debentures of Silverado Foods,
Inc., a corporation organized under the laws of Oklahoma, with its principal
executive offices located at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000
(hereinafter referred to as "Seller"). Buyer hereby represents and warrants to,
and agrees with Seller:
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER (THE "1933 ACT"), AND MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S OF THE 1933 ACT) OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (AS DEFINED IN REGULATION S
OF THE 1933 ACT) EXCEPT PURSUANT TO REGISTRATION UNDER OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT.
I. Agreement To Subscribe: Purchase Price.
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(a) Subscription. The undersigned Buyer hereby subscribes for and
agrees to purchase the Sellers 8.0% Convertible Debentures substantially in the
form of the Debentures attached as Exhibit A hereto and having an aggregate
original principal amount of U.S. __________ (singly, a "Debenture," and
collectively, the "Debentures"), at an aggregate purchase price as set forth in
subsection (b) herein.
(b) Payment. The aggregate Purchase Price for the Buyer's portion of
the Debentures shall be __________________________ United States Dollars (U.S.
$___________) (the "Purchase Price"), which shall be payable at each closing
pursuant to paragraph C herein by delivering immediately available funds in
United States Dollars by wire transfer to the designated depository Xxxxx X.
Xxxxxxxxx, Esq. as Escrow Agent ("Escrow Agent") for closing by delivery of
securities versus payment.
(c) Closing. Subject to the satisfaction of the conditions set forth
in Sections 7 and 8 hereof, the closing of the transactions contemplated by this
Agreement shall occur on or before November 15, 1996, or such earlier or later
date as is mutually agreed to in writing by Buyer and Seller.
II. Buyer Representations and Covenants: Access to Information.
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Offshore Transaction. In connection with the purchase and sale of the
Debentures, Buyer represents and warrants to, and covenants and agrees with
Seller as follows:
(i) Buyer is not a natural person and is not organized under the laws
of any jurisdiction within the United States, was not formed by a U.S. Person
(as defined in Section 902(o) of Regulation S) for the purpose of investing in
Regulation S securities and is not otherwise a U.S. Person. Buyer is not, and on
the closing date will not be, an affiliate of Seller;
(ii) At the time the buy order was originated, Buyer was outside the
United States and is outside of the United States as of the date of the
execution and delivery of this Agreement;
(iii) No offer to purchase the Debentures or the common stock of
Seller issuable upon conversion of the Debentures (collectively, the
"Securities"), was made by Buyer in the United States;
(iv) Buyer is purchasing the Securities for its own account and Buyer
is qualified to purchase the Securities under the laws of its jurisdiction of
residence, and the offer and sale of the Securities will not violate the
securities or other laws of such jurisdiction;
(v) All offers and sales of any of the Securities by Buyer prior to
the end of the Restricted Period (as hereinafter defined) shall be made in
compliance with any applicable securities laws of any applicable jurisdiction
and in accordance with Rule 903 and 904, as applicable, of Regulation S or
pursuant to registration of securities under the 1933 Act or pursuant to an
exemption from registration. In any case, none of the Securities have been and
will be offered or sold by Buyer to, or for the account or benefit of, a U.S.
Person or within the United States until after the end of the forty (40) day
period commencing on the later of (x) the date of closing of the offering of the
Securities or (y) the date of the first offer of the Securities to persons other
than distributors (the "Restricted Period"), as certified by Buyer to Seller and
thereafter only pursuant to a Registration Statement or an applicable exemption
therefrom;
(vi) The transactions contemplated by this Agreement (a) have not been
and will not be pre-arranged by Buyer with a purchaser located in the United
States or a purchaser which is a U.S. Person, and (b) are not and will not be
part of a plan or scheme by Buyer, to evade the registration provisions of the
1933 Act;
(vii) Buyer understands that the Securities are not registered under
the 1933 Act and are being offered and sold to it in reliance on specific
exclusions from the registration requirements of Federal and State securities
laws, and that Seller is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings of
Buyer set forth herein in order to determine the applicability of such
exclusions and the suitability of Buyer and any purchaser from Buyer to acquire
the Securities;
(viii) Buyer shall take all reasonable steps to ensure its compliance
with Regulation S and shall promptly send to each purchaser who acts as a
distributor, dealer or a person receiving a selling concession, fee or other
remuneration in respect of any of the Securities, who purchases prior to the
expiration of the Restricted Period referred to in subparagraph (v) above, a
confirmation or other notice to the purchaser stating that the purchaser is
subject to the same restrictions on offers and sales as Buyer pursuant to
Section 901(c)(2)(iv) of Regulation S;
(ix) Buyer has not conducted and shall not conduct any "directed
selling efforts" as that term is defined in Rule 902(b) of Regulation S; nor has
Buyer conducted any general solicitation relating to the offer and sale of any
of the Securities in the United States or elsewhere;
(x) This Agreement has been duly authorized, validly executed and
delivered on behalf of Buyer and is a valid and binding agreement in accordance
with its terms, subject to general principles of equity and to bankruptcy or
other laws affecting the enforcement of creditors' rights generally;
(xi) The execution and delivery of this Agreement and the consummation
of the purchase of the Securities, and the transactions contemplated by this
Agreement do not and will not conflict with or result in a breach by Buyer of
any of the terms of provisions of, or constitute a default under, the articles
of incorporation or by-laws (or similar constitutive documents) of Buyer or any
indenture, mortgage, deed of trust, or other material agreement or instrument to
which Buyer is a party or by which it or any of its properties or assets are
bound, or any existing applicable law, rule or regulation of the United States
or any State thereof or any applicable decree, judgment or order of any Federal
or State court, Federal or State regulatory body, administrative agency or other
United States governmental body having jurisdiction over Buyer or any of its
properties or assets;
(xii) All invitation, offers and sales of or in respect of, any of the
Securities, by Buyer and any distribution by Buyer of any documents relating to
any offer by it of any of the Securities will be in compliance with applicable
laws and regulations and will be made in such a manner that no prospectus need
be filed and no other filing need be made by Seller with any regulatory
authority or stock exchange in any country or any political sub-division of any
country;
(xiii) Buyer will not make any offer or sale of the Securities by any
means which would not comply with the laws and regulations of the territory in
which such offer or sale takes place or to which such offer or sale is subject
or which would in connection with any such offer or sale impose upon Seller any
obligation to satisfy any public filing or registration requirement or provide
or publish any information of any kind whatsoever or otherwise undertake or
become obligated to do any act;
(xiv) Neither the Buyer nor any of its affiliates has entered, has the
intention of entering, or will during the Restricted Period enter into any put
option, short position
or other similar instrument or position with respect to any of the Securities or
securities of the same class as the Securities;
(xv) the Buyer (or others for whom it is contracting hereunder) has
been advised to consult its own legal and tax advisors with respect to
applicable resale restrictions and applicable tax considerations and it (or
others for whom it is contracting hereunder) is solely responsible (and the
Company is not in any way responsible) for compliance with applicable resale
restrictions and applicable tax legislation;
(xvi) Buyer understands that no Federal or State or foreign government
agency has passed on or made any recommendation or endorsement of the
Securities;
(xvii) Buyer acknowledges that it and its advisors, if any, have been
furnished with all materials relating to the business, finances and operations
of Seller and all materials relating to the offer and sale of the Securities
which have been requested by Buyer. Buyer further acknowledges that it and its
advisors, if any, have received complete and satisfactory answers to such
inquiries;
(xviii)Buyer acknowledges that the purchase of the Securities involves
a high degree of risk, including the total loss of Buyer's investment. Buyer is
an accredited investor as defined in Regulation D promulgated under the
Securities Act of 1933. Buyer has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
purchasing the Securities; and
(xix) Buyer is not a "10-percent Shareholder" (as defined in Section
871(h)(3)(B) of the U.S. Internal Revenue Code) of Seller.
(xx) Buyer is acquiring the securities for investment purposes only,
for its own account, and not with a view to, or for sale in connection with, a
distribution.
III. Seller Representations and Covenants.
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(a) Reporting Company Status. Seller is a "Reporting Issuer" as defined
by Rule 902 of Regulation S. Seller has registered its Common Stock, $0.01 par
value per share (the "Common Stock"), pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the Common Stock is
listed and trades on the American Stock Exchange ("AMEX"). Seller has filed all
material required to be filed pursuant to all reporting obligations under either
Section 13(a) or 15(d) of the Exchange Act for a period of at least twelve (12)
months immediately preceding the offer or sale of the Securities (or for such
shorter period that Seller has been required to file such material).
(b) Current Public Information. Seller has furnished Buyer with copies
of its most recent reports, as amended, filed under the Exchange Act and other
publicly available documents requested by Buyer.
(c) Offshore Transaction. Seller has not offered any of the Securities to
any person in the United States, any identifiable groups of U.S. citizens
abroad, or to any U.S. Person, as such terms are used in Regulation S.
(i) At the time the buy order was originated, Seller and/or its agents
reasonably believe the Buyer was outside of the United States and was not a U.S.
person, based on the representations of Buyer.
(ii) Seller and/or its agents reasonably believe that the transaction
has not been pre-arranged with a buyer in the United States, based on the
representations of Buyer.
(iii) No offer to buy or sell the Securities was or will be made by
Seller to any person in the United States.
(iv) The sale of the Securities by Seller pursuant to this Agreement
will be made in accordance with the provisions and requirements of Regulation S
provided that the representations and warranties of Buyer in Section 2 hereof
are true and correct.
(v) The transactions contemplated by this Agreement (a) have not been
and will not be pre-arranged by Seller with a purchaser located in the United
States or a purchaser which is a U.S. Person, and (b) are not and will not be
part of a plan or scheme by Seller to evade the registration provisions of the
1933 Act.
(d) No Directed Selling Efforts. In regard to this transaction, Seller has
not conducted any "directed selling efforts" as that term is defined in Rule 902
of Regulation S nor has Seller conducted any general solicitation relating to
the offer and sale of any of the Securities in the United States or elsewhere.
(e) Concerning the Securities. The issuance, sale and delivery of the
Debentures have been duly authorized by all required corporate action on the
part of Seller, and when issued, sold and delivered in accordance with the terms
hereof and thereof for the consideration expressed herein and therein, will be
duly and validly issued, fully paid and non-assessable. The Common Stock
issuable upon conversion of the Debenture has been duly and validly reserved for
issuance and, upon issuance in accordance with the terms of the Debentures,
shall be duly and validly issued, fully paid, and non-assessable and will not
subject the holders thereof, if such persons are non-U.S. persons, to personal
liability by reason of being such holders. There are no pre-emptive rights of
any shareholder of Seller.
(f) Subscription Agreement. This Agreement has been duly authorized,
validly executed and delivered on behalf of Seller and is a valid and binding
agreement in accordance with its terms, subject to general principles of equity
and to bankruptcy or other laws affecting the enforcement of creditors' rights
generally.
(g) Non-contravention. The execution and delivery of this Agreement and the
consummation of the issuance of the Securities and the transactions contemplated
by this
Agreement do not and will not conflict with or result in a breach by Seller of
any of the terms or provisions of, or constitute a default under, the articles
of incorporation or by-laws of Seller, or any indenture, mortgage, deed of
trust, or other material agreement or instrument to which Seller is a party or
by which it or any of its properties or assets are bound, or any existing
applicable law, rule or regulation of the United States or any State thereof or
any applicable decree, judgment or order of any Federal or State court, Federal
or State regulatory body, administrative agency or other United States
governmental body having jurisdiction over Seller or any of its properties or
assets.
(h) Approvals. Seller is not aware of any authorization,
approval or consent of any governmental body which is legally required for the
issuance and sale of the Debentures and the Common Stock issuable upon
conversion thereof to persons who are non-U.S. Persons, as contemplated by this
Agreement.
IV. Exemption; Reliance on Representations. Buyer
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understands that the offer and sale of the Securities are not being registered
under the 1933 Act. Seller and Buyer are relying on the rules governing offers
and sales made outside the United States pursuant to Regulation S.
V. Transfer Agent Instructions.
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(a) Debentures. Upon the conversion of the Debentures, the
holder thereof shall submit such Debenture with a notice of conversion to the
Seller and the Seller shall instruct Seller's transfer agent to issue one or
more Certificates representing that number of shares of Common Stock into which
the Debenture or Debentures are convertible in accordance with the provisions
regarding conversion set forth in Exhibit A hereto. The Seller shall act as
Debenture Registrar and shall maintain an appropriate ledger containing the
necessary information with respect to each Debenture.
(b) Common Stock to be Issued Without Restrictive Legend.
Upon the conversion of any Debenture by a person who is a non-U.S. Person,
Seller shall instruct Seller's transfer agent to issue Stock Certificates
without restrictive legend in the name of Buyer (or its nominee (being a non-
U.S. Person) or such non-U.S. Persons as may be designated by Buyer prior to the
closing) and in such denominations to be specified at conversion representing
the number of shares of Common Stock issuable upon such conversion, as
applicable. Seller warrants that no instructions other than these instructions
and instructions to impose a "stop transfer" instruction with respect to the
certificates until the end of the Restricted Period have been given or will be
given to the transfer agent and that the Common Stock shall otherwise be freely
transferable on the books and records of Seller. Nothing in this Section 5,
however, shall affect in any way Buyer's or such nominee's obligations and
agreements to comply with all applicable securities laws upon resale of the
Securities.
VI. Registration. If upon conversion of Debentures effected
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by the Buyer pursuant to the terms of this Agreement the Company fails to issue
certificates for shares of Common Stock issuable upon such conversion (the
"Underlying Shares") to the Buyer bearing no restrictive legend for any reason
other than the Company's reasonable good faith belief that the representations
and warranties made by the Buyer in this Agreement or the Notice of Conversion
were untrue when made, or if the restricted period under Regulation S is
extended, then the Company shall be required, at the request of the Buyer and at
the Company's expense, to effect the registration of the Underlying Shares
issuable upon conversion of the Debentures under the Act and relevant Blue Sky
laws as promptly as is practicable. The Company and the Buyer shall cooperate in
good faith in connection with the furnishing of information required for such
registration and the taking of such other actions as may be legally or
commercially necessary in order to effect such registration. The Company shall
file a registration statement within 15 days of Buyer's demand therefor and
shall use its best efforts to cause such registration statement to become
effective as soon as practicable thereafter and in any event within 60 days of
the date of the initial filing thereof. Such best efforts shall include, but not
be limited to, promptly responding to all comments received from the staff of
the Securities and Exchange Commission, providing Buyer's counsel with a
contemporaneous copy of all written communications from and to the staff of the
Securities and Exchange Commission with respect to such registration statement
and promptly preparing and filing amendments to such registration statement
which are responsive to the comments received from the staff of the Securities
and Exchange Commission. Once declared effective by the Securities and Exchange
Commission, the Company shall cause such registration statement to remain
effective until the earlier of (i) the sale by the Buyer of all Underlying
Shares registered or (ii) 120 days after the effective date of such registration
statement. In the event the Company undertakes to file a Registration Statement
on Form S-3 in connection with the Common Stock, upon the effectiveness of such
Registration, Buyer shall have the option to sell the Common Stock pursuant
thereto. The foregoing shall not in any way limit Buyer's rights in connection
with the Common Stock pursuant to Regulation S.
VII. Delivery Instructions. The Debentures being
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purchased hereunder shall be delivered to the Buyer at such time and place as
shall be mutually agreed by Seller and Buyer.
VIII. Conditions To Seller's Obligation To Sell.
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Seller's obligation to sell the Debentures is conditioned upon:
(a) The receipt and acceptance by Buyer of this Agreement as
evidenced by execution of this Agreement by Buyer.
(b) Delivery into the closing depository of good funds by Buyer
as payment in full of the purchase price of the Debentures.
IX. Conditions To Buyer's Obligation To Purchase. Buyer's
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obligation to purchase the Debentures is conditioned upon:
(a) The receipt and acceptance by Seller of this Agreement
as evidenced by execution of this Agreement by the duly authorized officer of
Seller.
(b) Delivery of the Debentures as described herein.
X. Offering Materials. All offering materials and documents
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used in connection with offers and sales of the Securities prior to the
expiration of the Restricted Period
referred to in Section 2(a) hereof shall include statements to the effect that
the Securities have not been registered under the 1933 Act or applicable state
securities laws, and that neither Buyer, nor any direct or indirect purchaser of
the Securities from Buyer, may directly or indirectly offer or sell the
Securities in the United States or to U.S. Persons (other than distributors)
unless that Securities are registered under the 1933 Act any applicable state
securities laws, or any exemption from the registration requirements of the 1933
Act or such state securities laws is available. Such statements shall appear (1)
on the cover of any prospectus or offering circular used in connection with the
offer or sale of the Securities, (2) in the underwriting section of any
prospectus or offering circular used in connection with the offer or sale of the
Securities, and (3) in any advertisement made or issued by Seller, Buyer, any
other distributor, any of their respective affiliates, or any person acting on
behalf of any of the foregoing.
XI. No Shareholder Approval. Seller hereby agrees that from the
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Closing Date until the issuance of Common Stock upon the conversion of the
Debentures, Seller will not take any action which would require Seller to seek
shareholder approval of such issuance unless such shareholder approval is
required by law or regulatory body (including but not limited to the American
Stock Exchange as a result of the issuance of the Securities hereunder.
XII. Miscellaneous.
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(a) Except as specifically referenced herein, this Agreement
constitutes the entire contract between the parties, and neither party shall be
liable or bound to the other in any manner by any warranties, representations or
covenants except as specifically set forth herein. Any previous agreement among
the parties related to the transactions described herein is superseded hereby.
The terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
Nothing in this Agreement, express or impled, is intended to confer upon any
party, other than the parties hereto, and their respective successors and
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided herein.
(b) Buyer is an independent contractor, and is not the agent of
Seller. Buyer is not authorized to bind Seller, or to make any representations
or warranties on behalf of Seller.
(c) Seller makes no representations or warranty with respect to
Seller, its finances, assets, business prospects or otherwise. Buyer will advise
each purchaser, if any, and potential purchaser of the Securities, of the
foregoing sentence, and that such purchaser is relying on its own investigation
with respect to all such matters, and that such purchaser will be given access
to any and all documents and Seller personnel as it may reasonably request for
such investigation.
(d) All representations and warranties contained in this Agreement by
Seller and Buyer shall survive the closing of the transactions contemplated by
this Agreement.
(e) This Agreement shall be construed in accordance with the laws of
Oklahoma and shall be binding upon the successors and assigns of each party
hereto.
Agreement may be executed in counterparts, and the facsimile transmission of an
executed counterpart to this Agreement shall be effective as an original.
(f) Buyer agrees to indemnify and hold Seller harmless from any and
all claims, damages and liabilities arising from Buyer's breach of its
representations and/or covenants set forth herein.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
Official Signatory of Seller:
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Silverado Foods, Inc.
By:
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Title:
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Official Signatory of Buyer:
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By:
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Title:
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Address of Buyer:
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