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STOCK PURCHASE AGREEMENT
AMONG
AGRITOPE, INC.,
VINIFERA, INC.,
AND
[PURCHASER]
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JUNE 1, 1999
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Article I DEFINITIONS..............................................1
1.1 Definitions..................................................1
Article II PURCHASE AND SALE OF SHARES..............................2
2.1 Sale of Shares...............................................2
2.2 Timing of Sale...............................................2
2.3 Option to Retain Shares......................................2
Article III CLOSING..................................................2
3.1 Closing......................................................2
3.2 Actions at Closings..........................................2
Article IV RESTRICTIONS ON TRANSFER.................................3
4.1 General......................................................3
4.2 Securities Law Compliance....................................3
4.3 Voluntary Transfers..........................................3
4.4 Involuntary Transfers........................................3
(a) Death...............................................3
(b) Involuntary Lifetime Transfer.......................3
4.5 Acceptance of Option to Purchase.............................4
(a) Option Period.......................................4
(b) Election............................................4
4.6 Payment and Transfer of Shares...............................4
4.7 Power of Attorney............................................4
4.8 Rejection of Offer by Company................................4
4.9 Lock-Up Agreement............................................5
4.10 Certificate Legend...........................................5
4.11 Purchaser's Right of First Refusal...........................5
(a) Duration of Right...................................5
(b) Restriction on Sale of Shares.......................5
(c) Acceptance of Offer.................................5
(d) Sale to Third Party.................................6
Article V REPRESENTATIONS AND WARRANTIES OF VINIFERA...............6
5.1 Organization, Etc............................................6
5.2 Authority....................................................6
5.3 Capitalization...............................................6
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5.4 Valid Issuance; Title........................................6
5.5 Financial Statements.........................................6
5.6 Tax Matters..................................................7
5.7 Assets Needed for Business...................................7
5.8 Litigation and Other Contingent Liabilities..................7
5.9 Absence of Certain Adverse Effects...........................7
5.10 No Brokers...................................................7
5.11 Disclosure...................................................7
Article VI REPRESENTATIONS AND WARRANTIES OF AGRITOPE...............7
6.1 Corporate Existence..........................................7
6.2 Authority....................................................8
Article VII REPRESENTATIONS AND WARRANTIES OF PURCHASER..............8
7.1 Execution and Performance of Agreement.......................8
7.2 Binding Obligations; Due Authorization.......................8
7.3 No Brokers...................................................8
7.4 Investment Representations...................................8
(a) Accredited Investor Status..........................8
(b) Access to Information...............................8
(c) Experience..........................................8
(d) Investment Intent...................................9
7.5 Nature of Shares.............................................9
(a) No SEC or State Registration........................9
7.6 Litigation...................................................9
7.7 Disclosure...................................................9
Article VIII COVENANTS................................................9
8.1 Best Efforts.................................................9
8.2 Right of Access..............................................9
8.3 Preservation of Business; Notice of Change..................10
Article IX CONDITIONS..............................................10
9.1 Conditions Precedent to Obligations of Purchaser............10
9.2 Conditions Precedent to Obligations of Agritope.............10
Article X OTHER MATTERS...........................................11
10.1 Notices.....................................................11
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10.2 Amendments and Waiver.......................................12
10.3 Expenses....................................................12
10.4 Headings....................................................12
10.5 Counterparts................................................12
10.6 Parties in Interest; Assignment.............................12
10.7 Entire Agreement............................................12
10.8 Severability................................................12
10.9 Attorney Fees...............................................12
10.10 Survival....................................................12
10.11 Form of Public Disclosures..................................12
10.12 Cumulative Rights and Remedies..............................13
10.13 No Third-Party Beneficiaries................................13
10.14 Dispute Resolution..........................................13
(a) Conduct............................................13
(b) Decision...........................................13
(c) Costs..............................................13
10.15 Governing Law...............................................13
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THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of
June 1, 1999, among AGRITOPE, INC., an Oregon corporation ("Agritope"),
VINIFERA, INC., an Oregon corporation ("Vinifera"), and the purchaser listed on
SCHEDULE 1 ("Purchaser").
RECITALS
A. Purchaser wishes to purchase from Agritope [ ] shares of Vinifera Common
Stock (the "Shares") according to the schedule and at the prices per share
specified in Exhibit A. Agritope wishes to sell the Shares to Purchaser on the
terms and conditions set forth below.
B. Capitalized terms not otherwise defined have the meanings given in
Article I.
AGREEMENT
The parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following terms have the
meanings set forth below:
(a) "Closing" means a closing of the purchase and sale of a portion
of the Shares according to the schedule set forth in EXHIBIT A.
(b) "Common Stock" means the Common Stock of Vinifera, no par
value.
(c) "Financial Statements" means Vinifera's Balance Sheet dated as
of May 31, 1999, Statement of Operations for the eight-month period
ending May 31, 1999, Statement of Shareholders' Equity for the
eight-month period ending May 31, 1999, and the Statement of Cash
Flows for the eight-month period ending May 31, 1999, each of which
have been prepared for Vinifera's internal use, copies of which are
attached as EXHIBIT B and which shall be updated as provided in this
Agreement.
(d) "First Anniversary Closing Date" means the date of Closing in
year 2000 for the portion of the Shares specified in EXHIBIT A.
(e) "Initial Closing Date" means the date of Closing in year 1999
for the portion of the Shares specified in EXHIBIT A.
(f) "Preferred Stock" means the Preferred Stock of Vinifera.
(g) "Second Anniversary Closing Date" means the date of Closing in
year 2001 for the portion of the Shares specified in EXHIBIT A.
(h) "Securities Act" means the Securities Act of 1933, as amended.
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(i) "Third Anniversary Closing Date" means the date of Closing in
year 2002 for the portion of the Shares specified in EXHIBIT A.
(j) "Voting Stock" means the outstanding shares of Common Stock,
Preferred Stock entitled to vote in an election of directors, and
Preferred Stock convertible into Common Stock.
ARTICLE II
PURCHASE AND SALE OF SHARES
2.1 SALE OF SHARES. Upon the terms and conditions of this Agreement,
Agritope shall sell and transfer the Shares to Purchaser and Purchaser shall
purchase the Shares from Agritope for a total purchase price of [ ].
2.2 TIMING OF SALE. The Shares shall be purchased and sold in four annual
installments according to the schedule and at the prices per share specified in
Exhibit A.
2.3 OPTION TO RETAIN SHARES. Notwithstanding anything to the contrary
contained herein, Agritope shall have no obligation to sell to Purchaser the
portion of the Shares that would otherwise be transferred to Purchaser on any
Closing Date if (i) prior to the transfer of such shares, Agritope owns less
than a majority of the Voting Stock of Vinifera or (ii) as a result of the
transfer of such shares, together with all shares that Agritope has agreed to
transfer to other purchasers on such date, Agritope will own less than a
majority and more than 19 percent of the outstanding Voting Stock of Vinifera.
ARTICLE III
CLOSING
3.1 CLOSING. The sale of the Shares shall be consummated at a series of
Closings on a date and on successive anniversaries of that date as agreed by the
parties. The closing date for consummating the sale of the portion of the Shares
to be purchased in 1999 (the "Initial Closing Date") shall occur not later than
July 15, 1999. Successive closing dates as contemplated by the schedule in
Exhibit A shall occur on the first, second and third anniversaries of the
Initial Closing Date ("First Anniversary Closing Date," "Second Anniversary
Closing Date," and "Third Anniversary Closing Date"). If the anniversary of the
Initial Closing Date falls on a Saturday, Sunday, or holiday, the Closing shall
be continued to the next business day following the anniversary.
3.2 ACTIONS AT CLOSINGS. At each Closing:
(a) Purchaser shall pay Agritope the portion of the purchase price
for the portion of the Shares specified in EXHIBIT A. Purchaser shall
pay the portion of the purchase price by wire transfer in United
States dollars.
(b) Agritope shall deliver to Purchaser stock certificates
representing the portion of the Shares specified in EXHIBIT ▇.
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(c) The parties shall take all other actions that they deem necessary or
desirable to consummate the purchase and sale of the portion of the Shares
hereunder.
ARTICLE IV
RESTRICTIONS ON TRANSFER
4.1 GENERAL. Voting Stock may not be transferred by Purchaser or any
subsequent transferee, except to a transferee who agrees to comply with all
restrictions on transfer of Voting Stock provided for in this Agreement and the
certificates for Voting Stock and all other restrictions of this Agreement
applicable by their terms to transferees. Any purported transfer in violation of
the preceding sentence shall be void.
4.2 SECURITIES LAW COMPLIANCE. The holder of Voting Stock shall not offer,
sell, transfer, pledge, or otherwise dispose of Voting Stock in violation of any
applicable securities or other laws of a governmental authority having
jurisdiction over such disposition.
4.3 VOLUNTARY TRANSFERS. If Purchaser wishes to transfer any Voting Stock,
Purchaser must first offer to transfer the Voting Stock to Vinifera. The offer
shall be made by giving Vinifera written notice of the proposed transfer (the
"Proposed Transfer Notice"). The Proposed Transfer Notice must state (i) that
Purchaser intends to transfer the Voting Stock; (ii) the number of shares of
Voting Stock involved in the proposed transfer; (iii) the terms of the proposed
transfer, including the name and address of the proposed transferee; and (iv)
the price per share and the terms of payment. The Proposed Transfer Notice shall
constitute an offer to transfer the Voting Stock to Vinifera at the price and on
the terms of the proposed transfer.
4.4 INVOLUNTARY TRANSFERS.
(a) DEATH. If Purchaser is an individual, upon Purchaser's death,
Purchaser (or Purchaser's personal representative, whether or not
properly qualified) shall be deemed to have made an offer to sell to
Vinifera all of Purchaser's Voting Stock for its fair market value as
determined by Vinifera's board of directors; provided, however, that
no such offer shall be deemed made if Purchaser's Voting Stock will be
transferred solely to Purchaser's spouse or children as a result of
Purchaser's death and such persons make the agreement required of
transferees under Section 4.1.
(b) INVOLUNTARY LIFETIME TRANSFER. If Purchaser (a) becomes a
debtor under the United States Bankruptcy Code (voluntarily or
involuntarily) or any similar foreign law; or (b) makes a general
assignment for the benefit of creditors or permits any of Purchaser's
Voting Stock to be attached or levied upon or to become subject to
judicial sale or execution of judgment; or (c) would, but for this
Agreement, be required to involuntarily transfer Voting Stock as a
result of any other event; Purchaser shall be deemed, immediately
before such event occurs, to have made an offer to sell to Vinifera
all of the Voting Stock then owned by Purchaser for its fair market
value as determined by Vinifera's board of directors.
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4.5 ACCEPTANCE OF OPTION TO PURCHASE.
(a) OPTION PERIOD. For 30 days after Vinifera receives a Proposed
Transfer Notice or learns of an event giving rise to an option to
purchase Voting Stock under Section 4.4 (the "Option Period"),
Vinifera shall have the option to purchase some or all of the offered
Voting Stock. The decision whether to exercise the option shall be
made by Vinifera's board of directors or, if a disinterested quorum of
the board of directors cannot be convened, at a special shareholders'
meeting. If the decision is made at a special shareholders' meeting,
Purchaser hereby grants an irrevocable proxy to the remaining
shareholders to vote Purchaser's Voting Stock in accordance with the
majority of the other votes cast, excluding Purchaser's Voting Stock.
(b) ELECTION. Vinifera may elect to purchase any of the offered
Voting Stock by giving written notice to Purchaser within the Option
Period specifying the number of shares of Voting Stock that Vinifera
is electing to purchase and the total purchase price of the shares.
4.6 PAYMENT AND TRANSFER OF SHARES. Vinifera shall designate a transfer
date, which shall be within 30 days after the Option Period (the "Transfer
Date"). On the Transfer Date, the Purchaser or Purchaser's legal representative
must transfer and deliver the certificates for the Voting Stock, duly endorsed
for transfer, to Vinifera. On the Transfer Date, Vinifera must pay the purchase
price for the Voting Stock to Purchaser.
4.7 POWER OF ATTORNEY. Purchaser irrevocably appoints each vice-president
of Vinifera as Purchaser's agent and attorney-in-fact, with full power of
substitution, for the limited purpose of effecting the transfer of Voting Stock
purchased by Vinifera under this Agreement. If, after tender to Purchaser on or
before the Transfer Date of the purchase price for the Voting Stock, Purchaser
does not deliver to Vinifera the Voting Stock to be transferred, any
vice-president, as Purchaser's agent and attorney-in-fact, may take all actions
and may execute all documents necessary to effect the transfer of the Voting
Stock to Vinifera. Upon the taking of such action and execution of such
documents, Purchaser shall have no further interest in the Voting Stock
transferred. Purchaser acknowledges and agrees that the granting of this power
of attorney is coupled with an interest and shall survive Purchaser's death or
disability, if Purchaser is an individual, and Purchaser's assignment of any
interest in the Voting Stock.
4.8 REJECTION OF OFFER BY COMPANY. If Vinifera does not purchase Voting
Stock offered in a Proposed Transfer Notice, the Voting Stock may be transferred
to the proposed transferee within three months after the Option Period subject
to the following conditions: (i) the transferee must become a party to this
Agreement; (ii) the transferee and the transferor must certify to Vinifera the
terms of the transfer; and (iii) the transfer must be made at a price and on
terms and conditions no more favorable to Purchaser than those specified in the
Proposed Transfer Notice. If Vinifera does not purchase Voting Stock offered
pursuant to Section 4.4, the Voting Stock may be transferred within six months
after the Option Period in connection with the event giving rise to Vinifera's
purchase option, subject to the condition that the transferee must become a
party to this Agreement. If a transfer is not made within the applicable
three-
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month or six-month period, no transfer shall be made without again offering the
Voting Stock as provided above.
4.9 LOCK-UP AGREEMENT. In the event of an underwritten public offering of
the capital stock of Vinifera, Purchaser shall not transfer any Shares except
pursuant to the registration statement filed with the Securities and Exchange
Commission for the offering for a period of 15 days prior to and 180 days after
the effective date of such registration statement without the underwriters'
consent, provided that Agritope and any Vinifera directors and executive
officers holding Voting Stock agree to similar transfer restrictions in
connection with the offering.
4.10 CERTIFICATE LEGEND. Certificates for Purchaser's Voting Stock shall
bear substantially the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER
RESTRICTIONS SET FORTH IN A STOCK PURCHASE AGREEMENT AMONG AGRITOPE,
INC., VINIFERA, INC., AND PURCHASER, DATED JUNE 1, 1999.
4.11 PURCHASER'S RIGHT OF FIRST REFUSAL.
(a) DURATION OF RIGHT. Agritope shall provide Purchaser with the
rights set forth in this Section 4.11 for the period beginning on the
day after the Initial Closing Date and ending on the earliest to occur
of (i) the Third Anniversary Closing Date, (ii) the date on which
shares of capital stock of Vinifera are publicly traded, and (iii) the
date on which Agritope owns less than a majority of the Voting Stock
of Vinifera.
(b) RESTRICTION ON SALE OF SHARES. During the period described in
Section 4.11(a), Agritope shall not sell any shares of Voting Stock
for less than $2.50 per share to any party other than a current holder
of Voting Stock, if as a result of such sale Agritope would own less
than a majority of the Voting Stock, unless Agriope shall have first
communicated to Purchaser, by written notice, a written offer
("Agritope's Offer") to sell an amount of such shares to Purchaser in
proportion to the percentage of votes Purchaser is entitled to cast.
The notice shall specify the consideration and general terms and
conditions upon which Agritope is willing to sell such shares.
(c) ACCEPTANCE OF OFFER. Purchaser shall have a period (the
"Acceptance Period") of 30 days from the effective date of the notice
of Agritope's Offer to give Agritope written notice of acceptance. If
Agritope's Offer is accepted, the parties shall use their best efforts
in good faith to negotiate and execute definitive agreements in
accordance with the terms of Agritope's Offer by the date occurring 30
days following acceptance or by such later date as may be specified in
Agritope's Offer (the "Expiration Date").
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(d) SALE TO THIRD PARTY. If Purchaser does not accept Agritope's
Offer within the Acceptance Period, or if mutually acceptable
definitive agreements have not been negotiated and executed by
Purchaser by the Expiration Date, Agritope may sell the shares offered
to Purchaser to any other party pursuant to an agreement executed
within 180 days following the earlier of the expiration of the
Acceptance Period or the effective date of any written notice of
rejection of Agritope's Offer by Purchaser. The agreement shall
contain the same price, terms, and conditions as those specified in
Agritope's Offer (or terms and conditions more favorable to Agritope).
Nothing in this Section 4.11 shall restrict the issuance and sale to a
third party of shares not required to be offered to Purchaser pursuant
to Section 4.11(b).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF VINIFERA
To induce Purchaser to purchase the Shares, Vinifera represents and
warrants to Purchaser as follows:
5.1 ORGANIZATION, ETC. Vinifera is a corporation duly organized and validly
existing under the laws of the state of Oregon. Vinifera has all requisite
corporate power and authority to own its properties and carry on its business as
now conducted.
5.2 AUTHORITY. Vinifera has all requisite corporate power and authority to
execute, deliver, and perform this Agreement. This Agreement has been duly
executed and delivered by Vinifera and is the valid, legal, and binding
agreement of Vinifera, enforceable against Vinifera in accordance with its
terms. No corporate proceedings on the part of Vinifera are necessary to
authorize the execution, delivery, and performance of this Agreement by it. No
consent of, approval by, filing with, or notice to any governmental authority or
any other person or entity is required for Vinifera to execute, deliver, and
perform this Agreement, other than those that have been obtained, made, or
given.
5.3 CAPITALIZATION. The authorized capital stock of Vinifera consists of
10,000,000 shares of Common Stock and 10,000,000 shares of Preferred Stock, of
which 5,000,000 shares have been authorized to be issued as Series A Preferred
Stock. 6,458,269 shares of Common Stock and 1,440,000 shares of Preferred Stock
are currently issued and outstanding. No right to purchase or acquire shares of
any unissued capital stock of Vinifera or securities convertible into or
exchangeable for such capital stock is authorized or outstanding, other than as
set forth in Exhibit C.
5.4 VALID ISSUANCE; TITLE. The Shares are validly issued, fully paid, and
nonassessable. Upon delivery to Purchaser of the certificates representing a
portion of the Shares pursuant to this Agreement and the schedule in Exhibit A,
Purchaser will have valid, marketable title to such portion of the Shares, free
and clear of all encumbrances, other than restrictions on transfer described in
this Agreement.
5.5 FINANCIAL STATEMENTS. The Financial Statements have been prepared in
conformity with generally accepted accounting principles consistently applied,
except for the
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omission of footnotes, and fairly present the financial position and the results
of operations at the date and for the year or period indicated. Since the date
of the Financial Statements, there have been no material adverse changes in the
condition of Vinifera, except that Vinifera continues to incur operating losses.
5.6 TAX MATTERS. Vinifera 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.
5.7 ASSETS NEEDED FOR BUSINESS. Vinifera owns, leases, or otherwise has the
right to use all assets necessary for its present business.
5.8 LITIGATION AND OTHER CONTINGENT LIABILITIES. There are no actions or
proceedings pending or to the best of Vinifera's knowledge threatened against
Vinifera or any of its properties or assets or outstanding judgments or orders
to which Vinifera is subject, which adversely affect Vinifera's business,
operations, or financial condition. There is no action or proceeding pending or
to the best of Vinifera's knowledge threatened against Vinifera to restrain or
prohibit the sale of the Shares to Purchaser.
5.9 ABSENCE OF CERTAIN ADVERSE EFFECTS. Neither the execution and delivery
of this Agreement nor the consummation of the transactions contemplated hereby
will (a) conflict with, result in any violation of, constitute a default under,
or give rise to a right of acceleration or termination under, any provision of
the articles of incorporation or bylaws of Vinifera or any agreement, mortgage,
bond, indenture, agreement, franchise, or other instrument or obligation to
which Vinifera 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 Vinifera, (c) violate
any judgment or order against, or binding upon, Vinifera or upon the securities,
assets, properties, or business of Vinifera, or (d) constitute a violation by
Vinifera of any law.
5.10 NO BROKERS. Vinifera has not hired any broker or finder or incurred
any liability for fees or commissions to any such person in connection with this
Agreement.
5.11 DISCLOSURE. Except as disclosed herein, no representation or warranty
by Vinifera 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 contained not misleading. All documents furnished to Purchaser
or made available to Purchaser by or on behalf of Vinifera in connection with
the acquisition of the Shares pursuant to this Agreement are true and complete
originals or copies thereof and include all amendments, supplements, and
modifications thereof and all material waivers thereunder.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF AGRITOPE
Agritope represents and warrants to Purchaser as follows:
6.1 CORPORATE EXISTENCE. Agritope is a corporation duly organized and
validly existing under the laws of the state of Delaware.
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6.2 AUTHORITY. Agritope has all requisite corporate power and authority to
execute, deliver, and perform this Agreement. This Agreement has been duly
executed and delivered by Agritope and is the valid, legal, and binding
agreement of Agritope, enforceable against Agritope in accordance with its
terms. No corporate proceedings on the part of Agritope are necessary to
authorize the execution, delivery, and performance of this Agreement by it. 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.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Agritope and Vinifera as follows:
7.1 EXECUTION AND PERFORMANCE OF AGREEMENT. If Purchaser is a corporation
or other entity, Purchaser is duly organized and validly existing under the laws
of the jurisdiction of its organization 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 by-laws or similar charter
documents (if Purchaser is a corporation or other entity) or with any
undertaking, agreement, indenture, decree, order, or judgment by which Purchaser
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. 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 INVESTMENT REPRESENTATIONS.
(a) ACCREDITED INVESTOR STATUS. Purchaser is an "accredited
investor" for purposes of the Securities Act as described on EXHIBIT
D.
(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 Vinifera, and
the terms and conditions of the offering of the Shares and to obtain
any additional information that Agritope or Vinifera possesses or can
acquire without unreasonable effort or expense that is necessary to
verify the accuracy of information furnished to Purchaser. Purchaser
has received any such additional information that Purchaser has
requested.
(c) EXPERIENCE. Purchaser has sufficient knowledge and experience in
financial and business matters to be capable of evaluating the merits and
risks of
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an investment in the Shares and has the ability to bear the economic risk
of that investment.
(d) INVESTMENT INTENT. Purchaser is acquiring the Shares for Purchaser's
own account and not on behalf of any other person. Purchaser is not
acquiring the Shares with a view to distribution or with the intent to
divide Purchaser's participation with others by reselling or otherwise
distributing the Shares, either directly or indirectly, other than in a
registered offering.
7.5 NATURE OF SHARES. Purchaser is aware that:
(a) NO SEC OR STATE REGISTRATION. The Shares will not be registered
under federal or state securities laws when issued to Purchaser, must
be held indefinitely unless they are registered or unless an exemption
from registration is available, and will bear substantially the
following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER UNITED STATES FEDERAL OR STATE SECURITIES LAWS. THEY MAY NOT
BE OFFERED FOR SALE, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED UNLESS
THE TRANSACTION IS REGISTERED OR UNLESS THE ISSUER IS FURNISHED A
SATISFACTORY OPINION OF COUNSEL THAT REGISTRATION IS NOT REQUIRED.
(b) NO OBLIGATION. Agritope and Vinifera have no obligation to
register the Shares, comply with any exemptions from registration, or
repurchase the Shares at any time.
7.6 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 Shares.
7.7 DISCLOSURE. No representation or warranty by Purchaser contained in
this Agreement contains any untrue statement of a material fact, or omits to
state any material fact required to make the statements herein not misleading.
ARTICLE VIII
COVENANTS
8.1 BEST EFFORTS. Each party shall use such party's good faith efforts to
cause the transactions contemplated hereby to be consummated as soon as
practicable.
8.2 RIGHT OF ACCESS. Throughout the period from the date hereof through the
Initial Closing Date, Vinifera shall give Purchaser and Purchaser's
representatives, including Purchaser's counsel and accountants, on reasonable
notice, full access during normal business hours to all of Vinifera's
properties, documents, contracts, books and records and such other information
with respect to Vinifera's business affairs and properties as Purchaser may
reasonably request.
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8.3 PRESERVATION OF BUSINESS; NOTICE OF CHANGE. From the date hereof
through the Initial Closing Date, (a) Vinifera shall use its best efforts to
conduct its business in the usual and ordinary course consistent with past
practice and all applicable laws and in a manner that will not breach any of
Vinifera's representations, warranties, and covenants in this Agreement and (b)
Vinifera shall preserve its business organization intact.
ARTICLE IX
CONDITIONS
9.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER. The obligation of
Purchaser to effect the Closing of each portion of the Shares specified in
Exhibit A is subject to the satisfaction, or waiver by Purchaser, of each of the
following conditions on or prior to the Closing relating to such portion:
(a) All representations and warranties of Agritope and Vinifera
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 and Vinifera on or prior to the Closing shall have been so
performed or met in all respects.
(b) 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 Vinifera's
business in any material respect if the purchase and sale of the
Shares hereunder is consummated, (iii) that might restrict the
ownership of the 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.
(c) One month prior to the First Anniversary Closing Date, the
Second Anniversary Closing Date, and the Third Anniversary Closing
Date respectively, Vinifera shall deliver to Purchaser updated
Financial Statements representing available financial information for
the most-recent three-month period.
9.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF AGRITOPE. The obligation of
Agritope to effect the Closing of each portion of the Shares specified in
Exhibit A is subject to the satisfaction, or waiver by Agritope, of each of the
following conditions on or prior to the Closing:
(a) All representations and warranties of Purchaser, Agritope, and
Vinifera 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.
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(b) 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.
(c) The issuance and sale of the Shares shall not violate any
applicable state, federal, or foreign securities laws.
ARTICLE X
OTHER MATTERS
10.1 NOTICES. Any notice, request, or demand under this Agreement shall be
in writing and shall be deemed to have been duly given (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 Vinifera: Vinifera, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Fax: ▇▇▇.▇▇▇.▇▇▇▇
If to Agritope: Agritope, Inc.
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
Fax: ▇▇▇.▇▇▇.▇▇▇▇
If to Purchaser: Purchaser's address listed on Schedule 1
A party may change its address or fax number for purposes of this
Section 10.1 by giving the other parties notice of the change.
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10.2 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.
10.3 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).
10.4 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.
10.5 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.
10.6 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 parties.
10.7 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.
10.8 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.
10.9 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).
10.10 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 Initial Closing Date and shall continue for the period ending on the Third
Anniversary Closing Date, except as they may be fully performed prior to such
time.
10.11 FORM OF PUBLIC DISCLOSURES. Purchaser shall not make any public
disclosure concerning this Agreement and the transactions contemplated herein
unless Vinifera and Agritope have approved in advance the form and substance
thereof.
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10.12 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.
10.13 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.
10.14 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 waive any rights to appeal such award to or have
it reviewed by any court or tribunal. 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.
10.15 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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The parties have executed this Agreement as of the date set forth
above.
AGRITOPE, INC. VINIFERA, INC.
By By
-------------------------------- ---------------------------------
(Signature) (Signature)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- -----------------------------------
(Print or type name) (Print or type name)
Executive Vice President and Executive Vice President and
Chief Financial Officer Chief Financial Officer
--------------------------------------------------------------------------------
(Title) (Title)
--------------------------------
(PURCHASER)
By By
-------------------------------- ---------------------------------
(Signature) (Signature)
---------------------------------- -----------------------------------
(Print or type name) (Print or type name)
---------------------------------- -----------------------------------
(Title) (Title)
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SCHEDULE 1
----------
PURCHASER INFORMATION
Name of Purchaser:
Authorized Signator: _______________________________
_______________________________
Address for Notices:
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EXHIBIT A
PURCHASE SCHEDULE
YEAR NUMBER OF SHARES PRICE PER SHARE TOTAL PRICE
---- ---------------- --------------- -----------
1999 [ ] $1.65 $[ ]
2000 [ ] $2.00 $[ ]
2001 [ ] $2.50 $[ ]
2002 [ ] $2.50 $[ ]
Total [ ] $[ ]
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EXHIBIT B
FINANCIAL STATEMENTS
(See attached)
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EXHIBIT C
RIGHTS TO ACQUIRE SHARES
(1) Vinifera has adopted a stock award plan pursuant to which 2,000,000
shares of Common Stock are reserved for issuance pursuant to options and other
rights that may be granted to officers, directors, employees, and agents of
Vinifera. Options to purchase 625,000 shares of stock have been granted to
certain employees and non-employee directors at prices ranging from $1.00 to
$1.50, of which 228,750 shares are exercisable.
(2) Vinifera has entered into a five-year employment agreement with its
president pursuant to which the president has the right to receive incentive
stock options to purchase 400,000 shares of Common Stock at a price per share
equal to the fair market value of one share of common stock at the time the
option is granted. To date, 200,000 options have been granted and are included
in the amounts in item 1 above. The remaining options, if granted, would vest
annually in two equal amounts in May 1999 and May 2000, dependent on the
president's continued employment.
(3) Holders of Vinifera Series A Preferred Stock have been granted rights
of first refusal to purchase additional shares of capital stock that Vinifera
issues in the future.
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EXHIBIT D
Set forth below is a partial listing of persons who are "accredited
investors" for purposes of the Securities Act:
(1) Any organization described in Section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or partnership, not
formed for the specific purpose of acquiring the securities offered, with total
assets in excess of $5,000,000;
(2) Any natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of his or her purchase exceeds $1,000,000;
(3) Any natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with that person's spouse
in excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year;
(4) Any bank as defined in Section 3(a)(2) of the Securities Act or any
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act;
(5) Any broker-dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934;
(6) Any insurance company as defined in Section 2(13) of the Securities
Act;
(7) Any investment company registered under the Investment Company Act of
1940 or a business development company as defined in Section 2(a)(48) of that
act;
(8) Any Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958;
(9) Any private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940; and
(10) Any entity in which all of the equity owners are accredited investors.
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