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Exhibit 99.1
FORM OF
SUBSCRIPTION COMMITMENT AGREEMENT
This Subscription Commitment Agreement (the "Subscription Commitment
Agreement"), is being entered into as of this __ day of January, 1999, between
Healthy Planet Products, Inc. (the "Company"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"),
Santa Fe Financial Corporation ("Santa Fe") and The InterGroup Corporation
("InterGroup," and collectively with Winfield, and Santa Fe, the "Affiliate
Participants").
W I T N E S S E T H
WHEREAS, subject to the filing of a Registration Statement on Form S-3,
or such other Form as may be applicable (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission"), the Company intends to
offer to its stockholders of record on the Rights Record Date (as defined
herein) (i) two rights (the "Rights") for each share of the Company's common
stock, or Series D Convertible Preferred Stock, (the "Basic Subscription Right")
held by such Stockholder on the Rights Record Date, each of which shall entitle
such stockholder to purchase one share of common stock, par value $.01 per
share (the "Shares"), at $[ ] per share (the "Subscription Price"); and (ii) an
oversubscription right, available to any stockholder exercising in full his or
her Basic Subscription Rights, (the "Oversubscription Right") entitling such
holder to purchase, at the Subscription Price, in the event that less than all
Shares are purchased through the exercise of all of the Basic Subscription
Rights, up to one time the number of such Shares subscribed to under his or her
Basic Subscription Rights (the "Rights Offering");
WHEREAS, the Company intends to file the Registration Statement with the
Commission, and one or more amendments thereto, with respect to the Rights and
the Shares to be issued pursuant to the Rights Offering;
WHEREAS, the Affiliate Participants desire to commit to exercise all of
their respective Basic Subscription Rights;
WHEREAS, in consideration for their commitment, the Company desires to
issue to the Affiliate Participants warrants to purchase 250,000 shares of
Common Stock; and
WHEREAS, the parties hereto desire to make certain agreements in
connection with the Rights Offering.
NOW, THEREFORE, in consideration of the premises, covenants, and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
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1. Definitions. Capitalized terms used herein but not defined have the
meaning ascribed to them in the Registration Statement.
2. Subscription Commitment. The Affiliate Participants each own the number
of shares set forth opposite their name in Column I of Exhibit A attached
hereto, and each Affiliate Participant will receive the number of Rights set
forth opposite their name in Column II of Exhibit A, attached hereto.
Furthermore, each Affiliate Participant agrees, subject to the filing of the
Registration Statement with the Commission, and the delivery of a definitive
Prospectus to exercise all of his or its Rights set forth opposite their name
in Column II of Exhibit A attached hereto, for which each Affiliate Participant
will each pay the per share Subscription Price as set forth in the Rights
Offering definitive Prospectus.
3. Affiliate Participant Warrants. In consideration of each Affiliate
Participants' commitment to exercise all of their respective Basic Subscription
Rights as set forth in Paragraph 2 hereof, the Company hereby agrees to issue to
the Affiliate Participants, warrants to purchase an aggregate of 250,000 shares
of Common Stock (the "Warrants"). The form of the Warrant Agreement and the
Warrant Certificate shall be in the form attached as an exhibit to the
Registration Statement. The Warrants shall be allocated among the Affiliate
Participants pro rata according to their current percentage of Common Stock
ownership, as set forth opposite each Affiliate Participants name in Column III
of Exhibit A, attached hereto. The Warrants shall be exercisable at a price to
be determined by the Company, provided, however, that such price shall not be
less than 110% of the Subscription Price of the Rights. The delivery of the
Warrants to the Affiliate Participants is subject to the filing of the
Registration Statement with the Commission, the delivery of a definitive
prospectus, and the payment by each Affiliate Participant of the total
Subscription Price for their respective Basic Subscription Rights.
4. Miscellaneous.
(a) Further Actions. Each party hereto will execute such further documents
and instruments and take such further actions as may reasonably be requested by
the other party to effect the purposes of this Subscription Commitment
Agreement, including the reservation of the Shares issuable upon exercise of the
Rights, and the filing of an additional listing application with the American
Stock Exchange with respect to the shares underlying the Warrants.
(b) Modification. This Subscription Commitment Agreement may be amended,
supplemented or modified only upon a written instrument duly executed by or on
behalf of each party hereto.
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(c) Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested or by Federal Express, express mail or similar
overnight delivery or courier service or delivered (in person or by telecopy,
telex or similar telecommunications equipment) against receipt to the party to
which it is to be given at the address of such party set forth in the preamble
to this Agreement (or to such other address as the party shall have furnished in
writing in accordance with the provisions of this Section 5(b) with copies
(which copies shall not constitute notice) as follows:
If to the Company:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Att: President
with a copy to:
Camhy ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇, Esq.
If to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇:
c/o The InterGroup Corporation
2121 Avenue of the Stars
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to The InterGroup Corporation:
2121 Avenue of the Stars - ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Santa Fe Financial Corporation:
2121 Avenue of the Stars - ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any notice shall be addressed to the attention of the Chief Executive Officer.
Any notice or other communication given by certified mail shall be deemed given
three business days after certification thereof, except for a notice changing a
party's address which will be deemed given at the time of receipt thereof. Any
notice given by other means permitted by this Section 5(c) shall be deemed given
at the time of receipt hereof.
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(d) Waiver. Any waiver by any party of a breach of any term of this
Subscription Commitment Agreement shall not operate as or be construed to be a
waiver of any other breach of that term or of any breach of any other term of
this Subscription Commitment Agreement. The failure of a party to insist upon
strict adherence to any term of this Subscription Commitment Agreement on one or
more occasions will not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Subscription Commitment Agreement. Any waiver must be in writing.
(e) Binding Effect. The provisions of this Subscription Commitment
Agreement shall be binding upon and inure to the benefit of the Company and the
Affiliate Participants, and their respective successors and permitted assigns.
(f) Severability. If any provision of this Subscription Commitment
Agreement is hereafter held to be invalid, illegal or unenforceable for any
reason, such provisions shall be reformed to the maximum extent permitted so as
to preserve the parties' original intent, failing which, it shall be severed
from this Subscription Commitment Agreement , with the balance of this
Subscription Commitment Agreement continuing in full force and effect. If any
provision of this Subscription Commitment Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable. If any provision is inapplicable to any person or circumstance, it
shall nevertheless remain applicable to all other persons and circumstances.
(g) Assignability. This Subscription Commitment Agreement may not be
assigned by any party without the prior written consent of the other party to
the Agreement.
(h) Headings. The headings in this Subscription Commitment Agreement are
solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Subscription Commitment Agreement.
(i) Counterparts; Governing Law; Jurisdiction. This Subscription
Commitment Agreement may be executed in any number of counterparts (and by
facsimile), each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. It shall be governed by, and
construed in accordance with, the laws of the State of California, without
giving effect to the rules governing the conflict of laws. Any action, suit or
proceeding arising out of, based on, or in connection with this Subscription
Commitment Agreement, or any document relating hereto or delivered in connection
with the transactions contemplated hereby, may be brought only and exclusively
in the Federal or State courts located in the State of California; and each
party covenants and agrees not to assert, by way of motion, as a defense or
otherwise, in any such action, suit or proceeding, any claim that it is not
subject personally to the jurisdiction of such court if it has been duly served
with process, that its property is exempt or immune from attachment or
execution,
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that the action, suit or proceeding is brought in an inconvenient forum, that
the venue of the action, suit or proceeding is improper, or that this
Subscription Commitment Agreement or the subject matter hereof may not be
enforced in or by such court.
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IN WITNESS WHEREOF, this Subscription Commitment Agreement has been
executed by duly authorized officers of each of the parties hereto as of the
date first above written.
HEALTHY PLANT PRODUCTS, INC.
By:__________________________________
Name:
Title:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By:__________________________________
THE INTERGROUP CORPORATION
By:__________________________________
Name:
Title:
SANTA FE FINANCIAL CORPORATION
By:__________________________________
Name:
Title:
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EXHIBIT A
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Name Number of Shares Number of Number of
Owned Rights/Number of Warrants
Rights Committed to
Exercise
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 167,600 335,200 90,399
The InterGroup 275,600 551,200 148,652
Corporation
Santa Fe Financial 20,300 40,600 10,949
Corporation
TOTAL: 463,500 927,000 250,000