UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-1(a)
AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
(Amendment No. ___________)*
Agritope, Inc.
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(Name of issuer)
Common Stock, $.01 par value per share
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(Title of class of securities)
00855D107
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(CUSIP Number)
Pierre Lefebvre
Vilmorin Clause & Cie
B.P. 1
63720 Chappes, France
011-33-4-73-63-43-72
with a copy to:
Piper & Marbury L.L.P.
1251 Avenue of the Americas
New York, New York 10020-1104
Attention: Garry P. McCormack, Esq.
212-835-6210
---------------------------------------------
(Name, address and telephone number of person authorized
to receive notices and communications)
September 28, 1999
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
statement because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box |_|. Note: Schedules filed in paper format shall include a signed original
and five copies of the Schedule, including all exhibits. See Rule 13d-7(b) for
other parties to whom copies are to be sent. *The remainder of this cover page
shall be filled out for a reporting person's initial filing on this form with
respect to the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a prior cover
page. The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE>
CUSIP No. 00855D107 13D Page 2 of 12 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Vilmorin Clause & Cie
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- ---------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC, OO
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) |_|
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- ---------------------------------------------------------------------------
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7 SOLE VOTING POWER
NUMBER OF 839,285
--------------------------------------------------------------
--------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 839,285
--------------------------------------------------------------
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WITH 10 SHARED DISPOSITIVE POWER
0
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- ---------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
839,285
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* | |
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.6%
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- ---------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
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SEE INSTRUCTIONS BEFORE FILLING OUT*
<PAGE>
CUSIP No. 00855D107 13D Page 3 of 12 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Groupe Limagrain Holding S.A.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
- ---------------------------------------------------------------------------
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4 SOURCE OF FUNDS*
AF
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
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7 SOLE VOTING POWER
NUMBER OF 839,285
--------------------------------------------------------------
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SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 839,285
--------------------------------------------------------------
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WITH 10 SHARED DISPOSITIVE POWER
0
--------------------------------------------------------------
- ---------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
839,285
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* | |
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.6%
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- ---------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
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SEE INSTRUCTIONS BEFORE FILLING OUT*
<PAGE>
CUSIP No. 00855D107 13D Page 4 of 12 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Societe Cooperative Agricole Limagrain
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) |_|
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
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7 SOLE VOTING POWER
NUMBER OF 839,285
--------------------------------------------------------------
--------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
--------------------------------------------------------------
--------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 839,285
--------------------------------------------------------------
--------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
0
--------------------------------------------------------------
- ---------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
839,285
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* | |
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.6
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- ---------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, OO
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SEE INSTRUCTIONS BEFORE FILLING OUT*
<PAGE>
Item 1. Security and Issuer
This Schedule 13D is filed to reflect information required by Rule
13d-1(a) under the Securities Exchange Act of 1934, as amended, with respect to
the Common Stock, $.01 par value per share (the "Common Stock"), of Agritope,
Inc., a Delaware corporation ("Agritope"). Agritope's principal executive
offices are located at 16160 SW Upper Boones Ferry Road, Portland, Oregon
97224-7744.
None of the persons filing this Schedule 13D is a direct owner of any
shares of Common Stock. All shares of Common Stock that are the subject of this
Schedule 13D are indirectly beneficially owned by virtue of Vilmorin Clause &
Cie's record ownership of shares of Agritope's Series A Convertible Preferred
Stock (the "Series A Preferred Stock"), each share of which is convertible into
Common Stock at any time at the election of the holder. Each share of Series A
Preferred Stock is convertible into one share of Common Stock, subject to
adjustment upon the occurrence of certain events.
Item 2. Identity and Background
(a), (b), (c), (f) This Schedule 13D is filed by each of Vilmorin Clause &
Cie, Groupe Limagrain Holding S.A. and Societe Cooperative Agricole Limagrain.
Vilmorin Clause & Cie ("Vilmorin") is a French societe anonyme. The
address of Vilmorin's principal business is B.P. 1, 63720 Chappes, France, and
the address of its registered office is 4 Quai de la Megisserie, 75001 Paris,
France. Vilmorin's principal business is the worldwide production, development
and commercialization of garden and vegetable seeds and other agricultural
products and the management of its subsidiaries.
Groupe Limagrain Holding S.A. ("Groupe Limagrain"), the holder of
approximately 60% of the shares of Vilmorin, is a French societe anonyme with
its principal business and registered office located at B.P. 1, 63720 Chappes,
France. Groupe Limagrain's principal business is to acquire shares of companies
in which it takes an interest and to coordinate and develop the activities of
its subsidiaries.
Societe Cooperative Agricole Limagrain (the "Cooperative"), the holder of
all of the shares of Groupe Limagrain and approximately 10% of the shares of
Vilmorin, is a French agricultural cooperative with its principal business and
principal office located at B.P. 1, 63720 Chappes, France. The Cooperative, with
its subsidiaries, is one of the largest seed companies in the world, and its
principal business is the production of seeds for grains, corn, garden
vegetables and oil producing plants.
The name, business address, present principal occupation or employment and
citizenship of each executive officer and director of Vilmorin, Groupe Limagrain
and the Cooperative is set forth on the attached Schedule I.
(d) During the last five years, none of Vilmorin, Group Limagrain or the
Cooperative, nor to the best of their knowledge, any of their directors or
executive officers, has been convicted in any criminal proceeding (excluding
traffic violations or similar misdemeanors).
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<PAGE>
(e) During the last five years, none of Vilmorin, Group Limagrain or the
Cooperative, nor to the best of their knowledge, any of their directors or
executive officers, was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The responses to Items 4, 5 and 6 of this statement are incorporated
herein by reference.
On September 28, 1999, Vilmorin acquired 125,000 units of Agritope
securities at a price of $20.00 per unit, or an aggregate purchase price of
$2,500,000. Each unit consisted of four shares of Series A Preferred Stock and a
warrant to purchase one share of Series A Preferred Stock.
Pursuant to a letter agreement dated September 22, 1999 (the "Letter
Agreement"), 37,500 of these units were purchased by Vilmorin on behalf of
Hazera Quality Seeds Ltd., an Israeli corporation ("Hazera"). In anticipation of
a certain joint venture transaction, and in consideration of the payment from
Hazera to Vilmorin of $750,000, Vilmorin agreed to act as Hazera's trustee with
respect to these 37,000 units and to transfer record ownership of the securities
to Hazera on request. Vilmorin will return the $750,000 to Hazera and retain
ownership of the Agritope securities if Vilmorin and Hazera do not reach
agreement on the proposed joint venture.
The foregoing description of the Letter Agreement is not intended to be
complete and is qualified in its entirety by the complete text of the Letter
Agreement, all of which is incorporated herein by reference. The Letter
Agreement is filed as Exhibit 99.2 hereto.
The remaining $1,750,000 for the purchase of the units was provided from
Vilmorin's internal resources and existing bank facilities.
Item 4. Purpose of Transaction
The responses to Items 3, 5 and 6 of this statement are incorporated
herein by reference.
Except for the securities held for Hazera and subject to transfer pursuant
to the Letter Agreement described in Item 3 above, Vilmorin currently holds its
interest in Agritope for investment purposes. Vilmorin intends to continuously
review its position in Agritope and, depending on future evaluations of the
business prospects of Agritope and on other developments, including but not
limited to general economic and business conditions and stock market conditions,
Vilmorin may retain or from time to time increase its holdings or dispose of all
or a portion of its holdings in Agritope, subject to any applicable legal and
contractual restrictions on its ability to do so, including the terms and
conditions of the Unit Purchase Agreement (defined in Item 6 below).
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<PAGE>
Except as set forth in this Schedule 13D, none of Vilmorin, Groupe
Limagrain nor the Cooperative has any present plans or proposals which relate to
or would result in: (a) any acquisition by any person of additional securities
of Agritope, or any disposition of securities of Agritope, (b) any extraordinary
corporate transaction, such as a merger, reorganization or liquidation,
involving Agritope or any of its subsidiaries; (c) any sale or transfer of a
material amount of assets of Agritope or any of its subsidiaries; (d) any change
in the present board of directors or management of Agritope, including any plans
or proposals to change the number or term of directors or to fill any existing
vacancies on the board; (e) any material change in the present capitalization or
dividend policy of Agritope; (f) any other material change in Agritope's
business or corporate structure; (g) any changes in Agritope's charter, by-laws
or corresponding instruments or other actions which may impede the acquisition
of control of Agritope by any person; (h) any delisting from a national
securities exchange or any loss of authorization for quotation in an
inter-dealer quotation system of a registered national securities association of
a class of securities of Agritope; (i) any termination of registration pursuant
to section 12(g)(4) of the Securities Exchange Act of 1934, as amended, of a
class of equity securities of Agritope; or (j) any action similar to any of
those enumerated above.
Item 5. Interest in Securities of the Issuer
The responses to Items 3, 4 and 6 of this statement are incorporated
herein by reference.
As of the date hereof, Vilmorin beneficially owns, and each of Groupe
Limagrain and the Cooperative indirectly beneficially owns, an aggregate of
839,285 shares of Series A Preferred Stock, consisting of: (i) 214,285 shares of
Series A Preferred Stock that Vilmorin purchased in connection with a research
and development collaboration between Agritope and Vilmorin in December 1997;
(ii) 500,000 shares of Series A Preferred Stock that Vilmorin purchased pursuant
to the Unit Purchase Agreement (defined in Item 6 below); and (iii) warrants
(the "Warrants") to purchase an additional 125,000 shares of Series A Preferred
Stock at any time prior to September 28, 2004 that Vilmorin also purchased
pursuant to the Unit Purchase Agreement. Of these 839,285 shares of Series A
Preferred Stock that Vilmorin holds or has a right to acquire, Vilmorin
purchased 150,000 shares of Series A Preferred Stock and 37,500 warrants to
purchase shares of Series A Preferred Stock on behalf of Hazera under the Letter
Agreement.
The shares of Series A Preferred Stock are convertible into shares of
Common Stock pursuant to Section 6 of the Certificate of Designation,
Preferences and Rights of the Series A Preferred Stock of Agritope, Inc. (the
"Certificate of Designation"), which sets forth a formula for determining the
number of shares of Common Stock issuable, as at any date, upon conversion of
the Series A Preferred Stock. Under the Certificate of Designation, each share
of Series A Preferred Stock is currently convertible at the option of the holder
into one share of Common Stock. Accordingly, the shares of Series A Preferred
Stock owned by Vilmorin, together with the shares of Series A Preferred Stock
issuable upon exercise of the Warrants, are currently convertible into 839,285
shares of Common Stock.
-7-
<PAGE>
Each of Vilmorin, directly, and Groupe Limagrain and the Cooperative,
indirectly, has sole power to vote or direct the vote and sole power to dispose
or direct the disposition of the 839,285 shares of Common Stock issuable upon
conversion of the shares of Series A Preferred Stock beneficially owned by
Vilmorin. These 839,285 shares of Common Stock represent approximately 20.6% of
the Common Stock outstanding, based on calculations made in accordance with Rule
13d-3(d) of the Securities and Exchange Act of 1934, as amended, and based on
there being 4,069,858 shares of Common Stock outstanding as of July 31, 1999.
No other person is known to have the right to receive or the power to
direct the receipt of dividends from, or the proceeds of the sale of any
securities of Agritope that are beneficially owned by Vilmorin, Group Limagrain
or the Cooperative.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer
The responses to Items 3, 4 and 5 of this statement are incorporated
herein by reference.
Pursuant to the Unit Purchase Agreement, dated as of June 30, 1999, as
amended by Amendment No. 1 thereto dated September 16, 1999, by and between
Agritope and Vilmorin (the "Unit Purchase Agreement"), Vilmorin acquired 125,000
units Agritope securities for an aggregate purchase price of $2,500,000. Each
unit consisted of four shares of Series A Preferred Stock and one five-year
warrant to purchase one share of Series A Preferred Stock.
Series A Preferred Stock has preemptive rights and the right to elect a
director, but otherwise has rights substantially equivalent to Common Stock and
is convertible at any time into shares of Common Stock on a share-for-share
basis, subject to adjustment in the event of stock splits, reverse stock splits,
stock dividends or other distributions involving the Common Stock. Holders of
Series A Preferred Stock vote on an "as converted" basis with holders of Common
Stock.
So long as not less than 214,285 shares of Series A Preferred Stock are
outstanding, the holders of Series A Preferred Stock are entitled to elect one
director to the Agritope Board annually. Pierre Lefebvre, the Chief Executive
Officer of Vilmorin, has been elected as the director representing the holders
of Series A Preferred Stock. In addition, the holders of Series A Preferred
Stock have equal voting rights with the holders of Common Stock, with the Series
A Preferred Stock having the number of votes equal to the number of shares of
Common Stock into which the Series A Preferred is then convertible. The holders
of Series A Preferred Stock and Common Stock vote together as one class, except
as otherwise required by law.
The foregoing description of the Unit Purchase Agreement is not intended
to be complete and is qualified in its entirety by the complete text of the Unit
Purchase Agreement, all of which is incorporated herein by reference. The Unit
Purchase Agreement is filed as Exhibit 99.1 hereto.
-8-
<PAGE>
Item 7. Material to be Filed as Exhibits
Exhibit 99.1 Unit Purchase Agreement, dated as of June 30, 1999, as
amended by Amendment No. 1 thereto dated September 16, 1999, by and between
Agritope and Vilmorin.
Exhibit 99.2 Letter Agreement, dated as of September 22, 1999, between
Vilmorin and Hazera.
Exhibit 99.3 Joint Filing Agreement among Vilmorin, Groupe Limagrain and
the Cooperative pursuant to Rule 13d-1(k).
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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<PAGE>
Signature
After reasonable inquiry and to the best of his or her knowledge and
belief, the undersigned certify that the information set forth in this statement
is true, complete and correct.
Dated: October 8, 1999
VILMORIN CLAUSE & CIE
By: _/s/__________________________
Name: Pierre Lefebvre
Title: CEO
GROUPE LIMAGRAIN HOLDING S.A.
By: _/s/__________________________
Name: Pierre Lefebvre
Title: Deputy CEO
SOCIETE COOPERATIVE AGRICOLE
LIMAGRAIN
By: _/s/__________________________
Name: Pierre Pagesse
Title: President
-10-
<PAGE>
Schedule I to Schedule 13D
Set forth below are the name and present principal occupation or
employment of each executive officer and director of Vilmorin, Groupe Limagrain
and the Cooperative. Each individual listed below is a citizen of France and has
a business address at B.P. 1, 63720 Chappes, France.
Directors and Executive Officers of
Vilmorin Clause & Cie
Name Present Principal Occupation or Employment
Directors
Andre Quinty Farmer
Pierre Lefebvre Deputy CEO, Groupe Limagrain
Raoul Faure Farmer
Jean-Denis Poulet Farmer
Gerard Renard Farmer
Francois Deloche Farmer
Executive Officers
Andre Quinty President, Vilmorin
Pierre Lefebvre CEO, Vilmorin; Deputy CEO, Groupe
Limagrain
Directors and Executive Officers of
Groupe Limagrain Holding S.A. and Societe Cooperative Agricole
Limagrain
Name Present Principal Occupation or Employment
Directors
Claude Agier Farmer
Joel Arnaud Farmer
Philippe Aymard Farmer
Francois Deloche Farmer
Christian Deschamps Farmer
Raoul Faure Farmer
Christian Cibert-Gothon Farmer
Francois Heyraud Farmer
Serge Lebreton Farmer
Pierre Pagesse Farmer
Laurent Petoton Farmer
Jean-Denis Poulet Farmer
Christian Puissauve Farmer
Andre Quinty Farmer
Gerard Renard Farmer
Executive Officers
Alain Catala CEO, Groupe Limagrain
Daniel Cheron Deputy CEO, Groupe Limagrain
Pierre Lefebvre Deputy CEO, Groupe Limagrain
Jean-Louis Bernier V.P. Administration/Organization/Control
Bernard Chave V.P. Human Resources
Francoise Faure V.P. Finance
Jean-Christophe Gouache V.P. Scientific Affairs
Jean-Claude Guillon V.P. Strategy/Development/Communication
Claude Lescoffit CEO, Limagrain Agro-Genetics
Emmanuel Rougier CEO, Mergers & Acquisitions
Jean-Marc Salabay CEO, Agro-Production Division
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<PAGE>
EX-99.1
Unit Purchase Agreement
UNIT PURCHASE AGREEMENT
Between
Agritope, Inc. ("Agritope") Vilmorin Clause & Cie ("Purchaser")
16160 SW Upper Boones Ferry Rd. Rue Limagrain
Portland, Oregon 97224 B.P. 1
Fax: (503) 670-7703 63720 Chappes
France
Fax (33) 473 63 40 04
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: 83,333
2. Total Purchase Price at U.S.$20.00 per Unit: U.S.$1,666,660
3. Domicile of Purchaser: France
(Country of organization, if a corporation or other entity; country of
residence, if an individual.)
4. Waiver of Preemptive Right: Purchaser understands that
-----------------------------
Agritope intends to sell 41,667 Units to Hazera Quality
Seeds Ltd. ("Hazera") substantially simultaneously with its
sale of the Units to Purchaser hereunder, on terms and
conditions substantially like those contained in this Unit
Purchase Agreement. In addition, Agritope intends to sell
250,000 units of Series C Preferred Stock to Rhone-Poulenc,
S.A. ("Rhone-Poulenc"), each unit consisting of four shares
of Series C Preferred Stock, $.01 par value per share, of
Agritope and one five year warrant to purchase 1 share of
Series C Preferred Stock, on terms and conditions
substantially like those contained in this Unit Purchase
Agreement. Purchaser, as the current holder of all issued
shares of Series A Preferred Stock, hereby waives any and
all preemptive rights (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 Rhone-Poulenc, and
hereby consents to such sales.
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
Dated: June 30, 1999
Agritope, Inc. Vilmorin Clause & Cie (Purchaser)
By /s/ By /s/
Gilbert N. Miller (Signature)
Executive Vice President
and Chief Financial Officer Pierre Lefebvre
(Print or type name)
CEO
(Title)
<PAGE>
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.
<PAGE>
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
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
1-ii
<PAGE>
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
1-iii
<PAGE>
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").
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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 stock 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 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,
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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.
(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
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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.
4.3 Disclosure Documents
Agritope has furnished or made available to Purchaser (whether in tangible form
or electronically, such as through EDGAR) 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."
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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
1933 Act.
(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 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
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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.
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 1933 Act) 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"):
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(i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto,
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or
(iii)any violation or alleged violation by Agritope of the 1933
Act, the 1934 Act, any state securities law, or any rule or
regulation promulgated under the 1933 Act, the 1934 Act, or any state
securities law.
Agritope shall reimburse the Purchaser and each such holder, officer,
director, partner, agent, employee, underwriter or controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or
action. The indemnity agreement contained in this subsection 5.7(a) shall
not apply to amounts paid in settlement of any loss, claim, damage,
liability, or action if such settlement is effected without the consent of
Agritope (which consent shall not be unreasonably withheld), nor shall
Agritope be liable to the Purchaser or such other holder in any such case
for any such loss, claim, damage, liability, or action (A) to the extent
that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by or on behalf of
the Purchaser, such other holder, or such underwriter or controlling
person or (B) in the case of a sale directly by the Purchaser or such
other holder of the Eligible Shares (including a sale of such Eligible
Shares through any underwriter retained by the Purchaser or such other
holder to engage in a distribution solely on behalf of the Purchaser or
such other holder), if such untrue statement or alleged untrue statement
or omission or alleged omission was contained in a preliminary prospectus
and corrected in a final or amended prospectus, and the Purchaser or such
other holder failed to deliver a copy of the final or amended prospectus
at or prior to the confirmation of the sale of the Eligible Shares to the
person asserting any such loss, claim, damage or liability in any case
where such delivery is required by the 1933 Act.
(b) Indemnification by Holders of the Shares. To the extent permitted
by law, the Purchaser and each other holder of Eligible Shares being
registered shall indemnify and hold harmless Agritope, each of its
directors, each of its officers who have signed the Registration
Statement, each person, if any, who controls Agritope within the meaning
of the 1933 Act, each agent and underwriter for Agritope, each other
holder of shares selling securities covered by the Registration Statement,
each director, officer, partner, agent, and employee of such other holder
or underwriter, and each person, if any, who controls such other holder or
underwriter, against any losses, claims, damages, or liabilities (joint or
several) to which Agritope or any such director, officer, partner, agent,
employee, controlling person, underwriter, or other holder may become
subject, under the 1933 Act, the 1934 Act, or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each
case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by or
on behalf of the Purchaser or such other holder expressly for use in
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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 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,
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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.
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.
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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 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.
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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.
(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:
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(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 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.
16160 SW Upper Boones Ferry Rd.
Portland, Oregon 97224
U.S.A.
Attention: President
Fax: (503) 670-7703
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.
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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).
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.
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.
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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 Rhone-Poulenc, S.A. 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
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.
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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 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
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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 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:
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(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 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.
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(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 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.
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<PAGE>
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 Stock
(including for these purposes all options, warrants and other securities
convertible into or exercisable for Series A Preferred 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
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<PAGE>
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 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/______________________________
Adolph J. Ferro
Chairman, President and Chief
Executive Officer
Attest:
/s/_______________________________
Gilbert N. Miller, Secretary
I-24
<PAGE>
EXHIBIT E
FORM OF WARRANT
THESE WARRANTS AND THE SHARES OF STOCK UNDERLYING THESE WARRANTS HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT") AND 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), NOR
MAY THESE WARRANTS BE EXERCISED IN THE UNITED STATES OR BY OR ON BEHALF OF A
U.S. PERSON, 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. VOID AFTER 5 P.M., UNITED STATES PACIFIC TIME, ON
___________, 2004, OR SUCH EARLIER DATE AS SPECIFIED HEREIN.
WARRANTS TO PURCHASE SERIES A PREFERRED STOCK
Warrant No. ________
________ Warrants
AGRITOPE, INC.
THIS CERTIFIES THAT ____________________________ or registered assigns, is the
registered holder of the number of Warrants (each, a "Warrant," and
collectively, the "Warrants") set forth above. Each Warrant represented by this
certificate for Warrants ("Warrant Agreement") entitles the registered holder
thereof (the "Warrantholder") to purchase from Agritope, Inc., a corporation
incorporated under the laws of the state of Delaware (the "Company"), United
States of America ("U.S."), one fully paid and nonassessable share of Series A
Preferred Stock, par value $.01 per share, of the Company (the "Series A
Preferred Stock") upon presentation and surrender of this Warrant Agreement with
an Election to Exercise Warrants in the form of Appendix 1 hereto duly
completed, at any time (except as provided below) upon official notice of
issuance, and prior to 5 p.m., U.S. Pacific Time, on the Expiration Date (as
defined in Section 2 hereof), at the corporate offices of the Company at 16160
SW Upper Boones Ferry Rd., Portland, Oregon 97224, or at such other address as
may be specified by the Company pursuant to Section 9 hereof, accompanied by
payment of the Exercise Price (as defined herein) and any applicable taxes,
either in cash in U.S. funds or by certified or official bank check in U.S.
funds payable to the order of the Company. These Warrants are issued pursuant to
the Unit Purchase Agreement between the Company and the above-named
Warrantholder dated as of June ____, 1999 (the "Unit Purchase Agreement").
Section 1. Exercise Price. Each Warrant entitles the Warrantholder to purchase
one share of Series A Preferred Stock for U.S. $7.00 (the "Exercise Price"),
subject to adjustment as provided herein. Section 2. Expiration. All Warrants
not theretofore exercised shall expire at 5 p.m., U.S. Pacific Time, on
_________, 2004 (the "Expiration Date"). Section 3. Adjustments of Number and
Kind of Shares Purchasable and Exercise Price. The number and kind of securities
or other property purchasable upon exercise of a Warrant shall be subject to
adjustment from time to time upon the occurrence, after the date hereof, of the
following events:
3.1 If the outstanding shares of Series A Preferred Stock are divided into
a greater number of shares or a dividend in Series A Preferred Stock is paid on
the Series A Preferred Stock, the number of shares of Series A Preferred Stock
issuable on exercise of the Warrants shall be proportionately increased and the
Exercise Price in effect immediately prior to such subdivision or at the record
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<PAGE>
date of such dividend shall, simultaneously with the effectiveness of such
subdivision or immediately after the record date of such dividend, be
proportionately reduced; and, conversely, if the outstanding shares of Series A
Preferred Stock are combined into a smaller number of shares of Series A
Preferred Stock, the number of shares of Series A Preferred Stock issuable upon
exercise of the Warrants shall be proportionately reduced and the Exercise Price
in effect immediately prior to such combination shall, simultaneously with the
effectiveness of such combination, be proportionately increased. The increases
and reductions provided for in this subsection 3.1 shall be made with the intent
and, as nearly as practicable, the effect that neither the percentage of the
total equity of the Company issuable on exercise of the Warrants nor the price
payable for such percentage upon such exercise shall be affected by any event
described in this subsection 3.1.
3.2 No adjustment of the Exercise Price will be made if the amount of the
adjustment is less than U.S. $.0l per share, but in that case any adjustment
that would otherwise be required to be made will be carried forward and will be
made at the time of and together with the next adjustment of the Exercise Price
which, together with any adjustment carried forward, amounts to U.S.
$.01 per share or more.
3.3 In case of any change in the Series A Preferred Stock through merger,
consolidation, reclassification, reorganization, partial or complete
liquidation, or other change in the capital structure of the Company (not
including a combination of shares or the issuance of additional shares of Series
A Preferred Stock by the Company by stock split or stock dividend), then, as a
condition of the change in the capital structure of the Company, provision shall
be made so that the holder of this Warrant Agreement will have the right
thereafter to receive upon the exercise of the Warrants the kind and amount of
shares of stock or other securities or property to which such holder would have
been entitled if, immediately prior to such merger, consolidation,
reclassification, reorganization, recapitalization, or other change in the
capital structure, such holder had held the number of shares of Series A
Preferred Stock issuable upon the exercise of the Warrant. In any such case,
appropriate adjustment shall be made in the application of the provisions set
forth herein with respect to the rights and interest thereafter of the
Warrantholder, to the end that the provisions set forth herein shall thereafter
be applicable, as nearly as reasonably may be, in relation to any shares of
stock or other property thereafter deliverable upon the exercise of the
Warrants. The Company will not permit any change in its capital structure to
occur unless the issuer of the shares of stock or other securities to be
received by the holder of this Warrant Agreement, if not the Company, agrees to
be bound by and comply with the provisions of this Warrant Agreement.
3.4 When any adjustment is required to be made in the number of shares of
Series A Preferred Stock, other securities, or property purchasable upon
exercise of the Warrants, the Company shall promptly determine the new number of
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<PAGE>
shares or other securities or property purchasable upon exercise of the Warrants
and (a) prepare and retain on file a statement describing in reasonable detail
the method used in arriving at the new number of shares or other securities or
property purchasable upon exercise of the Warrants and (b) cause a copy of such
statement to be mailed to the Warrantholder within 30 days after the date when
the event giving rise to the adjustment occurred.
3.5 No fractional shares of Series A Preferred Stock or other securities
shall be issued in connection with the exercise of any Warrants, but the Company
shall pay, in lieu of fractional shares, a cash payment therefor on the basis of
the fair market value of the Series A Preferred Stock or other securities on the
business day immediately prior to the exercise. "Fair market value" of the
Series A Preferred Stock or other securities the fair market value thereof as
determined by the Board of Directors of the Company, which determination shall
be conclusive.
3.6 Notwithstanding anything herein to the contrary, there shall be no
adjustment made hereunder on account of the sale and issuance of the shares of
Series A Preferred Stock or other securities purchasable upon exercise of the
Warrants. Section 4. Rights of Warrantholder as Stockholder. No holder of this
Warrant Agreement shall, as such, be entitled to vote, receive dividends, or be
deemed the holder of Series A Preferred Stock or any other securities of the
Company that may at any time be issuable on the exercise hereof for any purpose
whatever, nor shall anything contained herein be construed to confer upon the
holder of this Warrant Agreement, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof or give or withhold
consent to any corporate action (whether upon any matter submitted to
stockholders at any meeting thereof or otherwise) including, without limitation,
giving or withholding consent to any merger, recapitalization, issuance of
stock, reclassification of stock, exchange of stock, consolidation or
conveyance, or to receive notice of meetings or other actions affecting
stockholders or to receive dividends or subscription rights or other
distributions. Section 5. Payment of Certain Taxes and Charges. The Company
shall not be required to issue or deliver any certificate for shares of Series A
Preferred Stock or other securities upon the exercise of Warrants evidenced by
this Warrant Agreement or to register the transfer of the Warrants evidenced
hereby until any applicable transfer tax and any other taxes or governmental
charges that the Company may be required by law to collect in respect of such
exercise or transfer shall have been paid, such tax being payable by the holder
of this Warrant Agreement at the time of surrender for exercise or transfer.
Section 6. Registration Rights.
6.1 Piggyback Rights. The Company has in the Unit Purchase Agreement
granted certain registration rights to the Purchaser named therein or an
affiliated holder of Series A Preferred Stock or shares of Common Stock of
Agritope issuable upon conversion of Series A Preferred Stock, other than shares
that are not "restricted securities" for purposes of Rule 144 promulgated under
the 1933 Act (the"Eligible Shares"). If, pursuant to such registration rights,
the Company is obligated to prepare a registration statement covering such
shares, the Company will give written notice of such proposed registration to
all holders of Warrants issued in connection with the Unit Purchase Agreement.
If one or more of such Warrantholders notifies the Company within 10 days after
the effective date of the notice sent by the Company to the Warrantholders that
they would like all or any of the shares of Common Stock issued or issuable upon
exercise of these Warrants (the "Warrant Shares") to be included in the proposed
registration, the Company will include such Warrant Shares in the registration.
6.2 Application of Registration Rights Provisions. The provisions of
Article V of the Unit Purchase Agreement shall govern any registration of shares
pursuant to Section 6.1 hereof, and the signature of the Warrantholder hereto
signifies its agreement to be bound by such provisions. 7. Transfer and
Exchange.
7.1 Transfer. This Warrant Agreement is transferable on the registry books
of the Company subject to the restrictions on the first page hereof and in
Sections 7.3 and 7.4 hereof. Any transfer will be effected by an Assignment
Agreement in the form of Appendix 2 hereto, and the assignee shall agree to be
bound by the terms of this Warrant Agreement. The Company may deem and treat the
person or entity in whose name this Warrant Agreement is so registered as the
absolute owner hereof (notwithstanding any notation of ownership or other
writing thereon made by anyone other than the Company) for all purposes
whatever, and the Company shall not be affected by any notice to the contrary.
7.2 Exchange. Subject to the provisions of Sections 7.3 and 7.4 hereof and
the restrictions on the first page hereof, this Warrant Agreement is
exchangeable at the principal office of the Company for Warrant Agreements to
purchase the same aggregate number of shares of Series A Preferred Stock as are
purchasable hereunder, each new Warrant Agreement to represent the right to
purchase such number of shares as the Warrantholder shall designate at the time
of such exchange.
7.3 Securities Act of 1933. The Warrantholder, by acceptance hereof,
agrees that this Warrant Agreement and the shares of Series A Preferred Stock
issued or issuable upon exercise of this Warrant Agreement may not be offered or
sold except in compliance with the 1933 Act and applicable state securities
laws. The Warrantholder consents to the Company making a notation on its records
and on the certificates for any shares of Series A Preferred Stock issued upon
exercise hereof in order to implement such restriction on transferability.
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<PAGE>
7.4 Minimum Warrant Agreement Amount. Notwithstanding the provisions of
Sections 7.1 and 7.2 hereof, the Company shall not be required to issue a
Warrant Agreement for Warrants covering less than 25,000 shares of Series A
Preferred Stock, except in the case of a partial exercise by the Warrantholder
of this Warrant Agreement that leaves Warrants exercisable to purchase less than
such number of shares that are to remain registered in the name of the
exercising Warrantholder, and any subsequent partial exercise, transfer or
exchange of such Warrant Agreement. Section 8. Holdback Agreement. The
Warrantholder shall not, without the prior written approval of the Company and
an underwriter of the Company's securities, sell or otherwise transfer or
dispose of any Warrants or Warrant Shares for a period of time starting at
receipt of written notice from the Company that it intends to sell securities to
the public generally and ending 90 days after the effective date of the
applicable registration statement; provided, however, that all executive
officers and directors of the Company are similarly bound. Section 9. Notices.
Any notice, request or other communication required or permitted hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally, by facsimile, by international courier service, or by registered
mail, airmail postage prepaid, return receipt requested, to: (a) the Company at
16160 SW Upper Boones Ferry Rd., Portland, Oregon 97224, U.S.A., Attn:
Secretary, or at such other addresses as may be specified by the Company by
notice given to the Warrantholders in accordance with this Section 9, and (b) to
the Warrantholders at the addresses set forth in the registry books of the
Company referred to in Section 7.1 hereof, or such other addresses as may be
specified by the Warrantholders by notice given to the Company in accordance
with this Section 9. Any notice, request or other communication (other than an
Election to Exercise Warrants) given by registered airmail shall be deemed given
10 days after the mailing date; notices, requests or other communications given
in any other manner and any Election to Exercise Warrants shall be deemed given
when received. Section 10. Amendment. This Warrant Agreement may be amended or
its provisions waived only by an instrument in writing signed by the Company and
the Warrantholder. Section 11. Certain Definitions. Rules 9.02(o) and 9.02(p) of
Regulation S promulgated under the 1933 Act defining "U.S. person" and "United
States," respectively, are set forth in Appendix 3. Section 12. Law Governing.
This Warrant Agreement shall be governed by and construed in accordance with the
laws of the state of Delaware, without giving effect to choice of laws
principles thereof. Dated: _____________, 1999. AGRITOPE, INC.
By__________________________ Title________________________
The undersigned Warrantholder agrees to be bound by the terms hereof.
By______________________________
Title____________________________
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<PAGE>
APPENDIX 1
to
Warrant Agreement
ELECTION TO EXERCISE WARRANTS [NOTE: Unless the transaction
has been registered under the Securities Act of 1933, as amended (the "1933
Act"), or is exempt from registration thereunder, this Election to Exercise
Warrants must be executed, and the Warrant Shares must be delivered, outside of
the U.S., its territories and possessions.] To: Agritope, Inc. 16160 SW Upper
Boones Ferry Rd. Portland, Oregon 97224 The undersigned hereby exercises
Warrants represented by the attached Warrant Agreement for ____________ shares
of Series A Preferred Stock of Agritope, Inc. (the "Warrant Shares"), and
tenders payment herewith in the amount of U.S. $_____________ in accordance with
the terms thereof. The undersigned hereby certifies that (mark one of the two
responses below):
_____(i) It is the sole beneficial owner of the Warrants being exercised,
(ii) it is not a U.S. person, as defined in Appendix 3 to the
attached Warrant Agreement and within the meaning of Regulation S
promulgated by the U.S. Securities and Exchange Commission pursuant
to the 1933 Act, and (iii) it is not exercising Warrants for the
benefit of any U.S. person.
_____The transaction in which the Warrant Shares will be delivered upon
exercise of the Warrant has been registered under the 1933 Act or is
exempt from registration thereunder and Agritope, Inc. has been
provided with a written opinion of counsel to that effect. A legal
opinion regarding the registration of the transaction will be
obtained at the expense of Agritope, Inc. by its designated legal
counsel upon notice of exercise of the Warrant Agreement by the
Warrantholder at any time during the effective period of a
registration statement covering the transaction; any other legal
opinion shall be the responsibility of the Warrantholder.
Please deliver the certificate and a new Warrant Agreement for the unexercised
Warrants, if any, to the Warrantholder at:
===========================
- ---------------------------
Signed:
Warrantholder:
- ----------------------------
[Name of Warrantholder must be identical to name shown in the registry
books of the Company; signature must be guaranteed by a bank or brokerage
firm doing business in the U.S.]
By _________________________
Title ________________________
Dated:____________________________
Address: __________________________
---------------------------
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<PAGE>
APPENDIX 2
to
Warrant Agreement
FORM OF ASSIGNMENT
[NOTE: Unless the transaction has been registered under the 1933
Act or is exempt from registration thereunder, this Assignment
must be executed, and the re-issued Warrants must be delivered,
outside of the U.S., its territories and possessions.]
FOR VALUE RECEIVED, the undersigned registered owner of this
Warrant Agreement hereby sells, assigns and transfers to the
Assignee(s) named below all of the rights of the undersigned
under the attached Warrant Agreement, with respect to Warrants
for the number of shares of Series A Preferred Stock set forth
below:
Name of Assignee: ...________________________
Address: ________________________
------------------------
No. of Shares* _________________________
*Please note that the minimum denomination in which Warrant
Agreements may be issued is 25,000 shares of Series A Preferred
Stock.
Signed by the Warrantholder:
- ---------------------------------
[Name of Warrantholder must be identical to name shown in the registry
books of the Company; signature must be guaranteed by a bank or brokerage
firm doing business in the U.S.]
By ______________________________
Title _____________________________
Dated:____________________________
Address: __________________________
---------------------------
The undersigned Assignee agrees to be bound by the terms of the Warrant
Agreement.
By______________________________
Title____________________________
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<PAGE>
APPENDIX 3
to
Warrant Agreement
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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<PAGE>
(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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AMENDMENT NO. 1
TO UNIT PURCHASE AGREEMENT
This is Amendment No. 1, dated September 16, 1999 (this "Amendment"), to
the Unit Purchase Agreement, dated June 30, 1999 (the "Unit Purchase
Agreement"), between Agritope, Inc., a Delaware corporation ("Agritope") and
Vilmorin Clause & Cie, a French corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Agritope and Purchaser have agreed to amend the Unit Purchase
Agreement, subject to the terms and conditions of this Amendment;
NOW, THEREFORE, Agritope and Purchaser hereby agree as follows:
1. Definitions
Capitalized terms used but not defined herein are used as defined in the
Unit Purchase Agreement.
2. Amendments to the Unit Purchase Agreement.
(a) Section 1 of the Unit Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
" 1. Number of Units: 125,000
(b) Section 2 of the Unit Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
" 2. Total Purchase Price at U.S. $20.00 per
Unit: U.S. $2,500,000
(c) Section 4 of the Unit Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
" 4. Waiver of Preemptive Rights: Subsequent to its
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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
sales."
(d) A new Section 6 shall be added to the Unit Purchase Agreement to read
in its entirety as follows:
" 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."
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3. Amendments to Exhibit A to the Unit Purchase Agreement.
(a) Section 1.1 of Exhibit A to the Unit Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"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").
Following such purchase of Units by Purchaser, Purchaser intends to sell 37,500
of such Units (the "Hazera Sale") to Hazera Quality Seeds Ltd., an Israeli
corporation ("Hazera")."
(b) Section 4.1 (d) of Exhibit A to the Unit Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"(d) Investment Intent. Except in connection with the proposed Hazera
Sale, Purchaser is acquiring the Preferred Shares and the Conversion
Shares for Purchaser's own account and not on behalf of any other person.
Except in connection with the proposed Hazera Sale, 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."
(c) Section 5.2 of Exhibit A to the Unit Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"5.2 Requested Registration
If Agritope shall be requested by Purchaser, Hazera or an affiliated
holder of Series A Preferred Stock or Eligible Shares of any such person 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."
(d) Section 9.13 of Exhibit A to the Unit Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
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"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,
specifically including, without limitation, Hazera with respect to the
registration rights provided under Article V hereof."
3. Miscellaneous
Except as expressly amended and restated hereby, the Unit Purchase
Agreement is hereby reaffirmed and remains in full force and effect. The
headings contained in this Amendment are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Amendment. This
Amendment may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same instrument.
This Amendment shall be governed by and construed in accordance with the
substantive law (but not the conflict of law rules) of the State of Oregon.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective duly authorized representatives as of the date
first above written.
AGRITOPE: AGRITOPE, INC.
By:_/s/_____________________________
Adolph J. Ferro
Its: President and Chief Executive Officer
PURCHASER: VILMORIN CLAUSE & CIE
By:/s/_____________________________
Pierre Lefebvre
Its: Chief Executive Officer
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EX-99.2
Hazera Letter Agreement
[Letterhead of Vilmorin Clause & Cie]
22 September, 1999
Hazera Quality Seeds Ltd
Dear Sirs,
Re: Unit Purchase Agreement
We hereby confirm our undertaking as follows:
1. To purchase on your behalf 37,500 units (the "Units"), each consisting
of four shares of Series A Preferred Stock, US $0.01 per share, of
Agritope, Inc. and one five-year warrant to purchase one share of such
Series A Preferred Stock at an exercise price of US $7.00 per share, all
in accordance with the terms specified in the Unit Purchase Agreement to
be signed with Agritope, Inc. (the "Purchase") in consideration of
US $750,000.
2. To act on your behalf in connection with the Purchase and to register said
shares and warrants in accordance with your request.
3. To act as your trustee with regard to the Units and transfer them to order
upon your first demand.
4. Should we not reach an understanding regarding the implementation of our
joint transaction with Agrinomics LLC, said US $750,000 will be returned
to you and we shall obtain ownership in the Units.
/s/
Vilmorin Clause & Cie SA
Pierre Lefebvre, CEO
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EX-99.3
Joint Filing Agreement
JOINT FILING AGREEMENT
The undersigned acknowledge and agree that the foregoing statement on
Schedule 13D is filed on behalf of each of the undersigned and that all
subsequent amendments to this statement shall be filed on behalf of each of the
undersigned without the necessity of filing additional joint filing agreements.
The undersigned acknowledge that each shall be responsible for the timely filing
of such amendments, and for the completeness and accuracy of the information
concerning it contained therein, but shall not be responsible for the
completeness and accuracy of the information concerning the others, except to
the extent that it knows or has reason to believe that such information is
inaccurate.
This Agreement may be executed counterparts and each of such counterparts
taken together shall constitute one and the same instrument.
Dated: October 8, 1999
VILMORIN CLAUSE & CIE
By: _/s/__________________________
Name: Pierre Lefebvre
Title: CEO
GROUPE LIMAGRAIN HOLDING S.A.
By: _/s/__________________________
Name: Pierre Lefebvre
Title: Deputy CEO
SOCIETE COOPERATIVE AGRICOLE
LIMAGRAIN
By: _/s/__________________________
Name: Pierre Pagesse
Title: President
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