SEPARATION AGREEMENT
between
Epitope, Inc.
and
Agritope, Inc.
Dated December 1, 1997
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS................................................................ 1
ARTICLE 2
PRE-DISTRIBUTION TRANSACTIONS....................................................... 4
2.1 Private Placement of Agritope Equity. ..................................................... 4
2.2 Agritope Corporate Actions.................................................................. 5
2.3 Epitope Approval............................................................................ 5
2.4 Related Agreements.......................................................................... 5
2.5 Securities Law Actions...................................................................... 5
ARTICLE 3
THE DISTRIBUTION.............................................................. 6
3.1 Discretion of Epitope Board; No Obligation.................................................. 6
3.2 Conditions to the Distribution.............................................................. 6
3.3 The Distribution............................................................................ 6
3.4 Fractional Shares........................................................................... 7
ARTICLE 4
INDEMNIFICATION, CLAIMS AND OTHER MATTERS................................................. 7
4.1 Indemnification by Epitope.................................................................. 7
4.2 Indemnification by Agritope................................................................. 7
4.3 Insurance Proceeds.......................................................................... 8
4.4 Procedure for Indemnification............................................................... 8
4.5 Other Claims................................................................................ 10
4.6 Contribution in Respect of Certain Indemnifiable Losses..................................... 10
4.7 No Beneficiaries............................................................................ 11
ARTICLE 5
CERTAIN ADDITIONAL MATTERS......................................................... 11
5.1 Construction of Agreements.................................................................. 11
5.2 Consents and Assignments.................................................................... 11
5.3 No Representations or Warranties............................................................ 11
5.4 Officers and Directors...................................................................... 11
5.5 Existing Intercompany Arrangements.......................................................... 12
5.6 Termination of Intercompany Accounts........................................................ 12
ARTICLE 6
ACCESS TO INFORMATION AND SERVICES; TECHNOLOGY............................................... 12
6.1 Provision of Corporate Records.............................................................. 12
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6.2 Access to Information....................................................................... 12
6.3 Production of Witnesses and Individuals..................................................... 12
6.4 Retention of Records........................................................................ 13
6.5 Confidentiality............................................................................. 13
6.6 Privileged Matters.......................................................................... 14
6.7 Technology.................................................................................. 15
ARTICLE 7
INSURANCE................................................................. 16
7.1 Transition.................................................................................. 16
7.2 Post-Distribution Date Claims............................................................... 16
7.3 Allocation of Insurance Proceeds............................................................ 16
ARTICLE 8
DISPUTE RESOLUTION............................................................. 17
8.1 Negotiation and Binding Arbitration......................................................... 17
8.2 Initiation.................................................................................. 17
8.3 Submission to Arbitration................................................................... 17
8.4 Equitable Relief............................................................................ 17
ARTICLE 9
MISCELLANEOUS............................................................... 18
9.1 Entire Agreement............................................................................ 18
9.2 Expenses.................................................................................... 18
9.3 Governing Law............................................................................... 18
9.4 Jurisdiction and Venue...................................................................... 18
9.5 Notices..................................................................................... 18
9.6 Modification of Agreement................................................................... 19
9.7 Termination................................................................................. 19
9.8 Successors and Assigns...................................................................... 19
9.9 No Third Party Beneficiaries................................................................ 19
9.10 Titles and Headings; Interpretation......................................................... 19
9.11 Exhibits.................................................................................... 20
9.12 Severability................................................................................ 20
9.13 No Waiver................................................................................... 20
9.14 Survival.................................................................................... 20
9.15 Counterparts................................................................................ 20
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SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (this "Agreement") is entered into
by and between Epitope, Inc., an Oregon corporation ("Epitope"), and Agritope,
Inc., a Delaware corporation ("Agritope"), as of December 1, 1997.
RECITALS
A. Agritope is a wholly owned subsidiary of Epitope, principally
engaged in research and development of agricultural products using plant genetic
engineering.
B. The board of directors of Epitope has determined that it is in the
best interests of the shareholders of Epitope to separate Agritope from Epitope
by distributing as a dividend to holders of Epitope common stock, no par value
("Epitope Stock"), all of the issued and outstanding shares of Agritope common
stock, par value $.01 per share, including certain preferred stock purchase
rights attached thereto (the "Agritope Stock"), held by Epitope (the
"Distribution"), as provided herein; and
C. Epitope and Agritope have determined that it is necessary and
desirable to establish the principal corporate transactions required to effect
the separation of Agritope from Epitope, and to enter into certain other
agreements governing matters relating to the Distribution and the relationship
between Epitope and Agritope after the Distribution.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, Epitope and Agritope agree as
follows:
ARTICLE 1
DEFINITIONS
Capitalized terms shall have the meanings given below or
elsewhere in this Agreement.
Action: any action, claim, suit, arbitration, inquiry,
subpoena, discovery request, proceeding or investigation by or before any court
or grand jury, any governmental or other regulatory or administrative agency or
commission or any arbitration tribunal.
Affiliate: with respect to any specified person, a person
that, directly or indirectly, through one or more intermediaries, controls, or
is controlled by, or is under common control with such specified person;
provided, however, that unless otherwise expressly provided, the Agritope Units
and Epitope shall not be deemed to be Affiliates of one another for purposes of
this Agreement.
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Agent: ChaseMellon Shareholder Services, L.L.C., the
distribution agent appointed by Epitope and Agritope to distribute the Agritope
Stock in connection with the Distribution.
Agritope Business: (i) the business of research and
development, marketing and sales of novel agricultural products using both plant
genetic engineering and other modern methods; (ii) the businesses of Vinifera
involving grapevine plant propagation and disease screening and elimination
programs; and (iii) any other business or operation conducted by an Agritope
Unit at any time. The Agritope Business does not include the business conducted
by ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ Sales, Co., a California corporation formerly owned by
Epitope.
Agritope Employee: any employee of a Core Company, and any
employee of Epitope who is assigned to a Core Company on or prior to the
Distribution Date.
Agritope Preferred: Agritope Series A preferred stock, par
value $.01 per share.
Agritope Unit: each Core Company and Related Company.
Books and Records: books and records (or true and complete
copies thereof), including computerized records, of Epitope that relate
principally to any Agritope Unit or the Agritope Business or decisions made by
Epitope that relate to Agritope, including, without limitation, all books and
records relating to Agritope Employees, the purchase of materials, supplies and
services by any Agritope Unit, and the technologies, customers, and business
partners of any Agritope Unit; and all files relating to any Action involving
any Agritope Unit or involving any Agritope Employee or director (including any
Action that arose when the Agritope Employee was employed by Epitope).
Code: the Internal Revenue Code of 1986, as amended.
Commission: the Securities and Exchange Commission.
Core Company: each of Agritope, Vinifera, and Agrimax Floral
Products, Inc., a Minnesota corporation.
Distribution Date: the effective date of the Distribution, as
determined by the Epitope Board.
Distribution Prospectus: the information statement/prospectus
to be distributed to holders of Epitope Stock in connection with the
Distribution.
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Employee Benefits Agreement: the agreement, substantially in
the form of Exhibit A hereto, pursuant to which Epitope and Agritope will
provide for certain employee benefit matters.
Epitope Board: the board of directors of Epitope.
Form S-1: the Registration Statement on Form S-1 filed by
Agritope with the Commission to register the Agritope Stock to be distributed to
holders of Epitope Stock in the Distribution.
Indemnifiable Losses: with respect to any claim by an
Indemnitee for indemnification authorized pursuant to Article 4 hereof, any and
all losses, liabilities, claims, damages, obligations, payments, costs and
expenses (including, without limitation, the costs and expenses of any and all
Actions, demands, assessments, judgments, settlements and compromises relating
thereto and reasonable attorney fees and expenses in connection therewith,
including attorney fees before and at trial and in connection with any appeal or
petition for review) suffered by such Indemnitee with respect to such claim,
other than those arising out of an individual's service as a director, officer,
or employee of the entity that would be the Indemnifying Party but for this
exclusion.
Indemnifying Party: any party who is required to pay any other
person pursuant to Article 4 hereof.
Indemnitee: any party who is entitled to receive payment from
an Indemnifying Party pursuant to Article 4 hereof.
Indemnity Payment: the amount an Indemnifying Party is
required to pay an Indemnitee pursuant to Article 4 hereof.
Insurance Proceeds: those monies (i) received by an insured
from an insurance carrier or (ii) paid by an insurance carrier on behalf of the
insured, in either case net of any applicable premium adjustment,
retrospectively rated premium, deductible, retention, cost or reserve paid or
held by or for the benefit of such insured.
Insured Claims: those Liabilities that, individually or in the
aggregate, are covered within the terms and conditions of any of the Policies,
whether or not subject to deductibles, co-insurance, uncollectibility or
retrospectively-rated premium adjustments, but only to the extent that such
Liabilities are within applicable Policy limits, including aggregates.
Liabilities: any and all debts, liabilities and obligations,
whether accrued, contingent or reflected on a balance sheet, known or unknown,
including, without limitation, those arising under any law, rule, regulation,
Action, order or consent decree of any
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governmental entity or any judgment of any court of any kind or award of any
arbitrator of any kind, and those arising under any contract, commitment or
undertaking.
Policies: insurance policies and insurance contracts of any
kind, including, without limitation, primary and excess policies, comprehensive
general liability policies, automobile and workers' compensation insurance
policies, and self-insurance arrangements, together with the rights and benefits
thereunder.
Private Placement: the sale of Agritope Stock or Agritope
Preferred to certain private investors in transactions intended to be exempt
from registration under the Securities Act pursuant to Regulation D or
Regulation S under the Securities Act.
Record Date: the date determined by the Epitope Board as the
record date for the Distribution.
Related Agreements: the Employee Benefits Agreement,
Transition Services and Facilities Agreement, Tax Allocation Agreement, and all
other agreements entered into by Epitope and Agritope pursuant to this Agreement
or otherwise in connection with the Distribution.
Related Company: each of UAF, Limited Partnership, a Delaware
limited partnership, Petals USA, Inc., a Minnesota corporation, and Superior
Tomato Associates, L.L.C., a Delaware limited liability company.
Securities Act: the Securities Act of 1933, as amended.
Shared Policies: all Policies owned or maintained by or on
behalf of Epitope prior to the Distribution Date, relating to both Epitope's
business and the Agritope Business.
Tax Allocation Agreement: the agreement, substantially in the
form of Exhibit B hereto, pursuant to which Epitope and Agritope will provide
for certain tax matters.
Transition Services and Facilities Agreement: the agreement,
substantially in the form of Exhibit C hereto, pursuant to which Epitope will
provide certain transitional services and facilities to Agritope following the
Distribution Date.
Vinifera: Vinifera, Inc., an Oregon corporation.
ARTICLE 2
PRE-DISTRIBUTION TRANSACTIONS
2.1 Private Placement of Agritope Equity. Agritope shall use
its best efforts to obtain commitments in the form of executed share purchase
agreements from investors
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interested in investing in Agritope in a Private Placement to occur immediately
following the Distribution. Agritope shall use its best efforts to determine the
aggregate amount of committed investment capital as soon as practicable.
2.2 Agritope Corporate Actions. Prior to the Distribution Date,
Agritope will take all corporate action necessary to effect the Distribution and
comply with this Agreement and any Related Agreements, including but not limited
to authorizing a recapitalization such that a sufficient number of shares of
Agritope Stock are available to effect the Distribution, and approving
appropriate stock-based compensation or other plans, agreements and
arrangements, as provided for in the Employee Benefits Agreement.
2.3 Epitope Approval. Subject to the business judgment of the Epitope
Board, Epitope shall cooperate with Agritope in effecting any actions that are
reasonably necessary or desirable to be taken by Agritope in connection with the
transactions contemplated by this Agreement or any Related Agreements including,
without limitation, approving or ratifying as sole stockholder of Agritope, the
election or appointment of directors of Agritope to serve following the
Distribution, appropriate stock-based compensation or other plans for Agritope
Employees, board members and consultants, and any recapitalization necessary to
effect the Distribution.
2.4 Related Agreements. Epitope and Agritope will use their best
efforts to cause, on or before the Record Date, the execution and delivery by
each party of the Related Agreements and any other agreements deemed necessary
or desirable by the parties to establish and govern the post-Distribution
relationship of the parties.
2.5 Securities Law Actions.
(a) Epitope and Agritope will prepare, and file with the
Commission, the Form S-1, including the Distribution Prospectus.
Epitope and Agritope shall use reasonable efforts to cause the Form S-1
to become effective under the Securities Act, and, as soon as
practicable after the Distribution Date, Epitope shall mail the
Distribution Prospectus to holders of Epitope Stock as of the Record
Date. The joint obligations of Epitope and Agritope under this Section
2.4(a) shall not affect their respective obligations of indemnity under
Article 4 hereof.
(b) Epitope and Agritope shall take all such actions as may be
necessary or appropriate under the securities or blue sky laws of the
various states or other political subdivisions of the United States and
other countries in connection with the Distribution and the Private
Placement.
(c) Agritope will prepare and file, and will use its best
efforts to have approved, an application for inclusion of Agritope
Stock on The Nasdaq SmallCap Market.
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ARTICLE 3
THE DISTRIBUTION
3.1 Discretion of Epitope Board; No Obligation. The Epitope Board will
have the sole discretion to determine, by resolution, the Record Date and all
appropriate procedures in connection with the Distribution. Nothing contained in
this section shall be interpreted to create any obligation on the part of
Epitope or Agritope to effect or to seek to effect the Distribution or in any
way limit Epitope's right to terminate this Agreement prior to the Record Date.
3.2 Conditions to the Distribution. The Distribution will not occur
prior to such time as each of the following conditions have been satisfied or
have been waived by the Epitope Board, in its sole discretion:
(a) Agritope shall have received binding commitments for
financing in an amount the Epitope Board deems sufficient to support
the operations of the Core Companies as businesses separate from
Epitope for a period of not less than two years;
(b) any waivers, consents, or amendments with respect to
agreements or other obligations entered into by or binding upon Epitope
or any Core Company shall have been executed and received to the extent
necessary to prevent Epitope or the Core Company from being in default
with respect to such agreements or obligations following the
Distribution;
(c) an opinion shall have been received from Miller, Nash,
Wiener, Hager & ▇▇▇▇▇▇▇ LLP in form and substance satisfactory to the
Epitope Board, with respect to the federal income tax status of the
Distribution under Section 355 of the Code;
(d) the Form S-1 shall have been declared effective by the
Commission;
(e) any material approvals and consents necessary to
consummate the Distribution shall have been obtained and shall be in
full force and effect, and no Action shall be pending or threatened
with respect to the Distribution; and
(f) no other event or development shall have occurred that, in
the judgment of the Epitope Board, would have a material adverse effect
on Epitope or its shareholders.
3.3 The Distribution. On or prior to the Record Date, Epitope
will deliver its certificate or certificates for Agritope Stock to the Agent.
Epitope will deliver to the Agent a stock certificate or certificates
representing, in the aggregate (and rounded down to the nearest whole share),
the number of shares necessary so that one share of Agritope Stock may be
distributed to Epitope shareholders of record for every five shares of Epitope
Stock
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outstanding on the Record Date. Thereafter, Epitope shall instruct the Agent to
distribute to holders of record of Epitope Stock on the Record Date, one share
of Agritope Stock for every five shares of Epitope Stock. All of the shares of
Agritope Stock issued in the Distribution will be fully paid, nonassessable and
free of preemptive rights. If the aggregate number of shares held by Epitope or
delivered to the Agent as of the Record Date exceeds the number to be
distributed to Epitope shareholders, Epitope shall return or instruct the Agent
to return the excess shares to Agritope for cancellation, as an additional
contribution to capital.
3.4 Fractional Shares. No certificates or scrip representing
fractional shares of Agritope Stock will be issued as a part of the
Distribution, and in lieu of receiving fractional shares, each holder of Epitope
Stock who would otherwise be entitled to receive a fractional share of Agritope
Stock pursuant to the Distribution will receive cash from Epitope for such
fractional share.
ARTICLE 4
INDEMNIFICATION, CLAIMS AND OTHER MATTERS
4.1 Indemnification by Epitope. Epitope will indemnify, defend
and hold harmless the Agritope Units and each of their directors, officers,
employees, and agents from and against any and all Indemnifiable Losses after
the Distribution Date arising out of or due to, directly or indirectly: (i)
Liabilities incurred in the course of the business or operations of Epitope
exclusive of the Agritope Business; (ii) any claim that the information included
in the Distribution Prospectus or the Form S-1 under (A) the captions "Summary
-- Distributing Corporation and Business," "-- Financing of Agritope," "--
Distribution Ratio," "-- Record Date," "-- Distribution Date," "--Shares to be
Distributed," "-- Fractional Share Interests," "-- Primary Purposes of the
Distribution," "-- Tax Consequences," or "--Relationship with Epitope after the
Distribution," and the corresponding information appearing elsewhere in the
Distribution Prospectus, (B) the captions "The Distribution -- Reasons for the
Distribution," "-- Manner of Effecting the Distribution" and "-- Certain Federal
Income Tax Consequences," or (C) the information concerning Vector Securities
International, Inc. is false or misleading with respect to any material fact or
omits to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading; (iii) any third party claim of failure by
Epitope to perform under, or of any violation by Epitope of, any provision of
this Agreement or any Related Agreement, which is to be performed or complied
with by Epitope; and (iv) breaches of this Agreement or any Related Agreement by
Epitope.
4.2 Indemnification by Agritope. Agritope will indemnify,
defend and hold harmless Epitope and each of its directors, officers, employees,
and agents from and against any and all Indemnifiable Losses after the
Distribution Date arising out of or due to, directly or indirectly: (i)
Liabilities incurred in the course of the Agritope Business, including
obligations under any existing guaranty by Epitope of obligations of any
Agritope Unit; (ii) any claim that any information provided in connection with
the Private Placement, other than the information listed in Section 4.1(ii), is
false or misleading with respect to any material
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fact or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, or that the Private Placement
otherwise violated the applicable law of any country; (iii) any claim that the
information included in the Distribution Prospectus or Form S-1, other than the
information listed in Section 4.1(ii) hereof, is false or misleading with
respect to any material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; (iv) any claim by
any person or entity, other than Epitope or Agritope, that is a shareholder or
equity owner of an Agritope Unit, relating to such person's or entity's stock or
other equity interest in an Agritope Unit; (v) any third party claims of failure
by an Agritope Unit to perform under, or any violation by an Agritope Unit of,
any provision of this Agreement or any Related Agreement which is to be
performed or complied with by an Agritope Unit; and (vi) breaches of this
Agreement or any Related Agreement by an Agritope Unit.
4.3 Insurance Proceeds. The amount that any Indemnifying Party
is or may be required to pay to any Indemnitee pursuant to Section 4.1 or
Section 4.2 hereof will be reduced (including, without limitation,
retroactively) by any Insurance Proceeds and other amounts actually recovered by
or on behalf of such Indemnitee in reduction of the related Indemnifiable Loss.
If an Indemnitee shall have received an Indemnity Payment in respect of an
Indemnifiable Loss and shall subsequently actually receive Insurance Proceeds or
other amounts in respect of such Indemnifiable Loss as specified above, then
such Indemnitee will pay to such Indemnifying Party a sum equal to the amount of
such Insurance Proceeds or other amounts actually received. Notwithstanding the
foregoing, nothing in this section grants to an Indemnitee any direct or
indirect rights or benefits to insurance coverage, nor requires an Indemnifying
Party to make any claim for insurance coverage.
4.4 Procedure for Indemnification.
(a) If either party shall receive notice of any claim or
Action brought, asserted, commenced or pursued by any person or entity
not a party to this Agreement (hereinafter a "Third Party Claim"), with
respect to which the other party is or may be obligated to make an
Indemnity Payment, it shall give such other party prompt notice thereof
(including any pleadings relating thereto), specifying in such
reasonable detail as is known to it the nature of such Third Party
Claim and the amount or estimated amount thereof; provided, however,
that the failure of a party to give notice as provided in this Section
4.4 shall not relieve the other party of its indemnification
obligations under this Article 4, except to the extent that such other
party is actually prejudiced by such failure to give notice.
(b) For any Third Party Claim concerning which notice is
required to be given, and, in fact, is given under subparagraph (a) of
this Section 4.4, the Indemnifying Party shall defend in a timely
manner, to the extent permitted by law, such Third Party Claim through
counsel appointed by the Indemnifying Party and reasonably acceptable
to the Indemnitee. Once an Indemnifying Party has commenced
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its defense of an Indemnitee, it cannot withdraw from such defense
until conclusion of the matter, unless the Indemnified Party agrees to
the withdrawal or the Indemnitee is also defending the claim. The
Indemnitee shall have the right to participate in the defense of the
Third Party Claim by employing separate counsel at its own expense.
(c) If a party responds to a notice of a Third Party Claim by
denying its obligation to indemnify the other party, or if the
Indemnifying Party fails to defend in a timely or reasonably
satisfactory manner, the Indemnitee shall be entitled to defend such
Third Party Claim through counsel appointed by it. In addition, if it
is later determined that such party wrongfully denied such claim, or
the Indemnifying Party failed to defend timely or in a reasonably
satisfactory manner, then the Indemnifying Party shall (i) reimburse
the Indemnitee for all reasonable costs and expenses (including
attorney fees before and at trial and in connection with any appeal or
petition for review, but excluding salaries of officers and employees)
incurred by the Indemnitee in connection with its defense of such Third
Party Claim; and (ii) be estopped from challenging a judgment, order,
settlement, compromise, or consent judgment resolving the Third Party
Claim entered into in good faith by the Indemnitee (if such claim has
been resolved prior to the conclusion of the proceeding between the
Indemnitee and Indemnifying Party). An Indemnifying Party, after
initially rejecting a claim for defense or indemnification, may defend
and indemnify the Indemnitee, at any time prior to the resolution of
said Third Party Claim, for such claim, provided that (x) the
Indemnifying Party reimburses the Indemnitee for all reasonable costs
and expenses (including attorney fees before and at trial and in
connection with any appeal or petition for review, but excluding
salaries of officers and employees) incurred by the Indemnitee in
connection with its defense of such Third Party Claim up to the time
the Indemnifying Party assumes control of the defense of such claim
(including costs incurred in the transition of the defense from the
Indemnitee to the Indemnifying Party); and (y) the assumption of the
defense of the Third Party Claim is not expected to prejudice or cause
harm to the Indemnitee.
(d) With respect to any Third Party Claim for which
indemnification has been claimed hereunder, no party shall enter into
any compromise or settlement, or consent to the entry of any judgment
which (i) does not include as a term thereof the giving by the third
party of a release to the Indemnitee from all further liability
concerning such Third Party Claim on terms no less favorable than those
obtained by the party entering into such compromise, settlement or
consent; or (ii) imposes any obligation on the Indemnitee without such
Indemnitee's written consent (such consent not to be withheld
unreasonably), except an obligation to pay money which the Indemnifying
Party has agreed to pay and has the ability to pay on behalf of the
Indemnitee. In the event that an Indemnitee enters into any such
compromise, settlement or consent without the written consent of the
Indemnifying Party (other than as contemplated by Section 4.4(c)
hereof), the entry of such compromise, settlement or consent shall
relieve the Indemnifying Party of its indemnification obligation
related to the claims underlying such compromise, settlement or
consent.
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(e) Upon final judgment, determination, settlement or
compromise of any Third Party Claim, and unless otherwise agreed by the
parties in writing, the Indemnifying Party shall pay promptly on behalf
of the Indemnitee, or to the Indemnitee in reimbursement of any amount
theretofore required to be paid by the Indemnitee, the amount so
determined by final judgment, determination, settlement or compromise.
Upon the payment in full by the Indemnifying Party of such amount, the
Indemnifying Party shall succeed to the rights of such Indemnitee to
the extent not waived in settlement, against the third party who made
such Third Party Claim and any other person who may have been liable to
the Indemnitee with respect to the indemnified matter.
(f) In connection with defending against Third Party Claims,
the parties shall cooperate with and assist each other by making
available all employees, books, records, communications, documents,
items and matters within their knowledge, possession or control that
are necessary, appropriate or reasonably deemed relevant with respect
to defense of such claims; provided, however, that nothing in this
subparagraph (f) shall be deemed to require the waiver of any
privilege, including the attorney-client privilege, or protection
afforded by the attorney work product doctrine. In addition, regardless
of the party actually defending a Third Party Claim for which there is
an indemnity obligation under Section 4.1 or 4.2 hereof, the parties
shall give each other regular status reports relating to such action
with detail sufficient to permit the other party to assert and protect
its rights and obligations under this Agreement.
4.5 Other Claims. Any claim for an Indemnifiable Loss which
does not result from a Third Party Claim shall be asserted by written notice
from the Indemnitee to the Indemnifying Party within 120 days of first learning
thereof. All such claims that are not timely asserted pursuant to this section
shall be deemed to be forever waived. The Indemnitee's written notice shall
contain such information as the Indemnitee has regarding the alleged breach.
Such Indemnifying Party shall have a period of 120 days (or such shorter time
period as may be required by law as indicated by the Indemnitee in the written
notice) within which to respond thereto. If such Indemnifying Party does not
respond within such 120-day period (or lesser period), such Indemnifying Party
shall be deemed to have accepted responsibility to make payment for the amount
of Indemnifiable Loss and shall have no further right to contest the validity of
such claim. If such Indemnifying Party does respond within such 120-day (or
lesser) period and rejects such claim in whole or in part, such Indemnitee shall
be free to pursue such remedies as may be available under applicable law or
under this Agreement.
4.6 Contribution in Respect of Certain Indemnifiable Losses.
If the indemnification provided for in this Article 4 is unavailable to an
Indemnitee in respect of any Indemnifiable Loss arising out of, or related to,
information contained in the Distribution Prospectus or the related Form S-1 or
used in connection with the Private Placement, the Indemnifying Party, in lieu
of indemnifying such Indemnitee, shall contribute to the amount paid or payable
by such Indemnitee as a result of such Indemnifiable Loss, in such proportion as
is appropriate to reflect the relative fault of Agritope, its directors,
officers,
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employees or agents, on the one hand, and Epitope, its directors, officers,
employees or agents, on the other hand, in connection with the statements or
omissions which resulted in such Indemnifiable Loss. The relative fault of such
respective groups shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by either such group.
4.7 No Beneficiaries. Except to the extent expressly provided
otherwise in this Article 4, the indemnification provided for by this Article 4
shall not inure to the benefit of any third party or parties and shall not
relieve any insurer who would otherwise be obligated to pay any claim of the
responsibility with respect thereto or, solely by virtue of the indemnification
provisions hereof, provide any such subrogation rights with respect thereto and
each party agrees to waive such rights against the other to the fullest extent
permitted.
ARTICLE 5
CERTAIN ADDITIONAL MATTERS
5.1 Construction of Agreements. Notwithstanding any other
provisions in this Agreement to the contrary, in the event and to the extent
that there is a conflict between the provisions of this Agreement and the
provisions of any Related Agreement, the provisions of such Related Agreement
shall control.
5.2 Consents and Assignments. Epitope and Agritope shall use
reasonable efforts to obtain, either before or after the Distribution Date, any
consent, approval or amendment required to novate and/or assign to an Agritope
Unit or to Epitope, as appropriate, all agreements, leases, licenses and other
rights of any nature whatsoever relating solely to that party's business.
5.3 No Representations or Warranties. Agritope understands and
agrees that Epitope is not, in this Agreement, or in any Related Agreement or
any other agreement or document contemplated by this Agreement, representing or
warranting in any way as to the businesses and Liabilities retained, transferred
or assumed in connection with the Distribution, or that the obtaining of the
consents or approvals, the execution and delivery of any ancillary or amendatory
agreements or the making of the filings and applications contemplated by this
Agreement will satisfy the provisions of all applicable agreements or the
requirements of all applicable laws or judgments, it being understood and agreed
that, subject to Section 5.2 hereof, Agritope shall bear the economic and legal
risk of the business and Liabilities retained or assumed hereunder by Agritope,
and the legal and economic risk that any necessary consents or approvals are not
obtained or that any requirements of law or judgments are not complied with or
satisfied.
5.4 Officers and Directors. Agritope and Epitope shall take
all necessary actions to elect or otherwise appoint, as of the Distribution
Date, individuals to be directors or officers (or both) of Agritope, as set
forth in the Form S-1, and to cause the resignation of
- 11 -
individuals as officers and directors of each so that there are only two common
directors of Agritope and Epitope as of the Distribution Date and no common
officers.
5.5 Existing Intercompany Arrangements. Except as otherwise
provided in this Agreement, any and all agreements, arrangements, commitments or
understandings, whether or not in writing, between Epitope and Agritope will be
terminated and of no further force and effect as of the Distribution Date.
Following the Distribution Date, the parties shall discuss in good faith the
provision of any services and products to be provided by the other, but which
inadvertently were not the subject of this Agreement or any other Related
Agreement.
5.6 Termination of Intercompany Accounts. Except as described
in Section 9.2, any intercompany receivable, payable or loan between Epitope and
Agritope outstanding on the Distribution Date will be deemed terminated as a
result of the consummation of the transactions contemplated in this Agreement
and will be treated as a capital contribution.
ARTICLE 6
ACCESS TO INFORMATION AND SERVICES; TECHNOLOGY
6.1 Provision of Corporate Records. Following the Distribution
Date, all Books and Records will remain the property of Epitope but will be made
available upon reasonable notice and during normal business hours to Agritope
for review and duplication until the earlier of (i) notice from Agritope that
such Books and Records are no longer needed by Agritope, or (ii) the seventh
anniversary of the Distribution Date.
6.2 Access to Information. From and after the Distribution
Date, Epitope and Agritope will afford to each other and to each other's
authorized accountants, legal counsel and other designated representatives
reasonable access and duplicating rights (with copying costs to be borne by the
requesting party) during normal business hours to all Books and Records and
documents, communications, items and matters, including computer data
(collectively, "Information") within each other's knowledge, possession or
control, relating to the Agritope Units or Agritope Employees, insofar as such
access is reasonably required by Epitope or Agritope (and shall use reasonable
efforts to cause persons or firms possessing Information to give similar
access). Information may be requested under this Article 6 for any legitimate
business purpose including, without limitation, audit, accounting, claims,
Actions, litigation and tax purposes, as well as for purposes of fulfilling
disclosure and reporting obligations, but not for competitive purposes.
6.3 Production of Witnesses and Individuals. From and after
the Distribution Date, Epitope and Agritope will use reasonable efforts to make
available to each other, upon written request, their respective officers,
directors, employees and agents for fact finding, consultation and interviews
and as witnesses to the extent that any such person may reasonably be required
in connection with any Actions in which the requesting party may
- 12 -
from time to time be involved. Epitope and Agritope agree to reimburse each
other for reasonable out-of-pocket expenses (but not labor charges or salary
payments) incurred by the other in connection with providing individuals and
witnesses pursuant to this Section 6.3.
6.4 Retention of Records. Except when a longer retention
period is otherwise required by law or agreed to in writing, Epitope and
Agritope will retain, for seven years following the Distribution Date, all
material Information relating to Agritope. Notwithstanding the foregoing, in
lieu of retaining any specific Information, Epitope or Agritope may offer in
writing to deliver such Information to the other and, if such offer is not
accepted within 90 days, the offered Information may be destroyed or otherwise
disposed of at any time. If a recipient of such offer requests in writing that
any of the Information proposed to be destroyed or disposed of be delivered to
such requesting party, the party proposing the destruction or disposal will
promptly arrange for the delivery of the requested Information (at the cost of
the requesting party).
6.5 Confidentiality. During the period that Agritope has been
a wholly owned subsidiary of Epitope, employees of both Epitope and Agritope
have become aware of a wide variety of otherwise confidential business and
technical information of the other party. Such information of Epitope or the
Agritope Units (the "Disclosing Party") shall be protected by the other party
(the "Recipient") as follows:
(a) "Confidential Information" means nonpublic information
concerning the Disclosing Party's business, business plans, products,
or technology, whether disclosed before or after the Distribution Date,
including but not limited to strategic and long-range plans, financial
and operating results, identities of principal customers and suppliers,
plans for capital expenditures, plans for expansion into new markets,
research projects and results, and trade secrets.
(b) "Confidential Information" for purposes of this agreement
excludes:
(i) information which is or becomes publicly
available through no act of the Recipient, from and after the
date of public availability;
(ii) information disclosed to the Recipient by a
third party, provided: (A) under the circumstances of
disclosure the Recipient does not have a duty of
non-disclosure owed to such third party; (B) the third party's
disclosure does not violate a duty of non-disclosure owed to
another, including the Disclosing Party; and (C) the
disclosure by the third party is not otherwise unlawful; and
(iii) information developed by the Recipient
independent of any confidential information of the Disclosing
Party which is known by the Recipient on the Distribution Date
and/or disclosed by the Disclosing Party thereafter.
- 13 -
(c) The Recipient will hold, and will cause its officers,
employees, agents, consultants, advisors and Affiliates to hold, in
strict confidence, and not to disclose, unless compelled to disclose by
judicial or administrative process or, in the opinion of its
independent legal counsel, by other requirements of law, all
Confidential Information of the Disclosing Party.
(d) The Recipient shall protect Confidential Information of
the Disclosing Party by using the same degree of care, but no less than
a reasonable degree of care, to prevent unauthorized disclosure as the
Recipient uses to protect its own confidential information of a like
nature.
(e) The Recipient may disclose Confidential Information of the
Disclosing Party to its employees, Affiliates, sublicensees, agents and
advisors (such as attorneys, accountants and other consultants) who
need to know the information and are obligated by policy, agreement or
otherwise to avoid unauthorized use and disclosure of Confidential
Information.
(f) The foregoing restrictions shall expire ten years after
the later of the Distribution Date or the date of disclosure, unless
and to the extent Epitope and Agritope agree to a longer period for the
foregoing restrictions with respect to specific categories of
Confidential Information.
6.6 Privileged Matters.
(a) Epitope and Agritope will each maintain, preserve and
assert all privileges, including, without limitation, any privilege or
protection arising under or relating to any attorney-client
relationship (including, without limitation, the attorney-client and
work product privileges), that existed prior to the Distribution Date
in favor of the other party ("Privilege" or "Privileges"). Neither
party will waive any Privilege that could be asserted under applicable
law by the other party (the "Privileged Party") without the prior
written consent of the Privileged Party. The rights and obligations
created by this paragraph apply to all information as to which, but for
the Distribution, a party would have been entitled to assert or did
assert the protection of a Privilege ("Privileged Information").
(b) Upon receipt by either party or any of its Affiliates of
any subpoena, discovery or other request that arguably calls for the
production or disclosure of Privileged Information of the other party,
or if a party obtains knowledge that any of its current or former
employees has received any subpoena, discovery or other request which
arguably calls for the production or disclosure of Privileged
Information of the other party, the party will promptly notify the
Privileged Party of the existence of the request and will provide the
Privileged Party a reasonable opportunity to review the information and
to assert any rights it may have under this Section 6.6 or otherwise to
prevent the production or disclosure of Privileged Information. Neither
party will produce or disclose any information it should reasonably
expect to be covered by a
- 14 -
Privilege under this Section 6.6 unless (i) the Privileged Party has
provided its express written consent to such production or disclosure;
or (ii) a court of competent jurisdiction has entered a final,
non-appealable order finding that the information is not entitled to
protection under any applicable privilege.
(c) Either party's provision of information to the other
party, and either party's agreement to permit the other party to
possess copies of Privileged Information occurring or generated prior
to the Distribution Date, are made in reliance on the agreement, as set
forth in this Section 6.6, to maintain the confidentiality of
Privileged Information and to assert and maintain all applicable
Privileges. Any actions taken by either party in connection with the
Distribution and this Separation Agreement shall not be deemed a waiver
of any Privilege that has been or may be asserted by either party nor
shall they operate to reduce, minimize or condition the rights granted
to either party in, or the obligations imposed upon either party by,
this Section 6.6.
(d) Agritope shall cause the Core Companies to comply with the
restrictions imposed on it under this Section 6.6.
6.7 Technology.
(a) On or before the Distribution Date, Epitope shall assign
to Agritope, or as applicable Agritope shall assign to Epitope, those
patents, patent applications, trademarks or service marks and related
applications, copyrights, trade secrets, licenses, or agreements listed
on Schedule 1, which specifies the current owner or named party and the
party to which they are to be assigned. Epitope and Agritope shall
cooperate fully with each other to effect the assignments and cause
them to be made of record. The assignee shall pay any recording costs,
counsel fees, or similar charges incurred to cause the assignment to be
made of record.
(b) After the Distribution Date, Epitope, on the one hand, and
the Agritope Units, on the other, may use the patented inventions,
trademarks, service marks, copyrighted works, trade secrets, or
internally developed or licensed technology of the Agritope Units and
of Epitope, respectively, only to the extent permitted by this or
another written agreement.
(c) For a period not to exceed two years after the
Distribution Date, Agritope may continue to use the E design registered
trademark, Reg. Nos. 1,770,765 and 1,805,488, in connection with goods
and services of a quality comparable to those it provides as of the
Distribution Date. Agritope shall use reasonable efforts to adopt a
substitute corporate logo within six months after the Distribution
Date, and shall phase out use of the E design trademark as soon as
practicable.
(d) Epitope and Agritope will each make their employees (and
employees of the Core Companies) reasonably available to cooperate with
the other party in
- 15 -
connection with any patent application filed after the Distribution
Date if such employees have knowledge relevant to the application. If
an employee of Epitope, on the one hand, or the Agritope Units, on the
other, is an inventor of an invention assigned to an Agritope Unit or
to Epitope, respectively, the employer will make the employee
reasonably available to sign patent applications or related documents,
testify in connection with patent interference or similar proceedings,
and take other actions reasonably requested by the assignee to obtain
or maintain patent or other rights in the invention. Nothing in this
paragraph requires the assignment of any invention to Epitope or the
Agritope Units.
ARTICLE 7
INSURANCE
7.1 Transition. Agritope shall use reasonable efforts to
obtain by and after the Distribution Date such insurance policies for the
Agritope Business as the Agritope board of directors deems advisable, and shall
keep Epitope informed of all new insurance policies obtained by Agritope that
replace Shared Policies. Epitope may have the Agritope Units removed as named
insureds from each Shared Policy covering losses of a type for which Agritope
obtains its own insurance policy, regardless of differences in the limits under
the Shared Policy and the policy obtained by Agritope. Epitope may have the
Agritope Units removed as named insureds on each Shared Policy at the time the
Shared Policy next comes due for renewal. For any period after the Distribution
Date during which an Agritope Unit remains a named insured under a Shared
Policy, Agritope shall pay Epitope a pro rata portion of the premiums
attributable to the period.
7.2 Post-Distribution Date Claims. If, subsequent to the
Distribution Date, any person, corporation, firm or entity shall assert a claim
against an Agritope Unit with respect to any injury, loss, liability, damage or
expense incurred or claimed to have been incurred in, or in connection with, the
conduct of the Agritope Business or, to the extent any claim is made against
Agritope, Epitope's business, and which injury, loss, liability, damage or
expense may arise out of insured or insurable occurrences or events under one or
more of the Shared Policies, Epitope shall at the time such claim is asserted be
deemed to assign, without need of further documentation, to Agritope any and all
rights of an insured party under the applicable Shared Policy(ies) with respect
to such asserted claim, specifically including rights of indemnity and the
right(s) to be defended by or at the expense of the insurer(s); provided,
however, that nothing in this sentence is intended to effectuate or shall be
deemed to constitute or reflect the assignment of the Shared Policies, or any of
them, to Agritope.
7.3 Allocation of Insurance Proceeds. Insurance Proceeds
received with respect to claims, costs and expenses under the Shared Policies
shall be paid to Agritope with respect to Agritope's Liabilities and to Epitope
with respect to Epitope's Liabilities. Payment of the allocable portions of
indemnity costs of Insurance Proceeds resulting from the liability policies will
be made to the appropriate party upon receipt from the insurance carrier. In the
event that the aggregate limits on any of the Shared Policies are exceeded, the
parties agree
- 16 -
to provide an equitable allocation of Insurance Proceeds received after the
Distribution Date based upon their respective bona fide claims. The parties
shall use their best efforts to cooperate with respect to insurance matters.
ARTICLE 8
DISPUTE RESOLUTION
8.1 Negotiation and Binding Arbitration. Except with respect
to matters involving Section 6.6 hereof (Privileged Matters) and except as may
expressly be provided in any other agreement between the parties entered into
pursuant hereto, if a dispute, controversy or claim (collectively, a "Dispute")
between Epitope and Agritope arises out of or relates to this Agreement, a
Related Agreement or any other agreement entered into pursuant hereto or
thereto, including, without limitation, the breach, interpretation or validity
of any such agreement or any matter involving an Indemnifiable Loss, Epitope and
Agritope agree to use the following procedures, in lieu of either party pursuing
other available remedies and as the sole remedy (except as provided in Section
8.4 below), to resolve the Dispute.
8.2 Initiation. A party seeking to initiate the procedures
will give written notice to the other party, briefly describing the nature of
the Dispute. A meeting will be held between the parties within 30 days of the
receipt of such notice, attended by individuals with decision-making authority
regarding the Dispute, to attempt in good faith to negotiate a resolution of the
Dispute.
8.3 Submission to Arbitration. If, not later than 30 days
after such meeting, the parties have not succeeded in negotiating a resolution
of the Dispute, they will agree to submit the Dispute to binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, by a sole arbitrator selected by the parties. The arbitration will
be held in Portland, Oregon, and governed by the Federal Arbitration Act, 9
U.S.C. Sections 1-16, and judgment upon the award rendered by the arbitrator may
be entered by any court having jurisdiction thereof. The costs of arbitration
will be apportioned between Epitope and Agritope as determined by the arbitrator
in such manner as the arbitrator deems reasonable, taking into account the
circumstances of the Dispute, the conduct of the parties during the proceeding,
and the result of the arbitration.
8.4 Equitable Relief. Nothing herein will preclude either
party from seeking equitable relief to prevent any immediate, irreparable harm
to its interests, including multiple breaches of this Agreement or the relevant
Related Agreement by the other party. Otherwise, these procedures are exclusive
and will be fully exhausted prior to the initiation of any litigation. Either
party may seek specific enforcement of any arbitrator's decision under this
Article. The arbitrator may consolidate an arbitration under this Agreement with
any arbitration arising under or relating to the Related Agreements or any other
agreement between the parties entered into pursuant hereto, as the case may be,
if the subjects of the Disputes thereunder arise out of or relate essentially to
the same set of facts or transactions. The determination of issues relating to
consolidation and the determination of any such
- 17 -
consolidated arbitration will be determined by the arbitrator appointed for the
arbitration proceeding that was commenced first in time.
ARTICLE 9
MISCELLANEOUS
9.1 Entire Agreement. This Agreement, including the Exhibits
and the agreements and other documents referred to herein, shall constitute the
entire agreement between Epitope and Agritope with respect to the subject matter
hereof and shall supersede all previous negotiations, commitments and writings
with respect to such subject matter.
9.2 Expenses. Except as otherwise expressly provided in this
Agreement, any Related Agreement or any other agreement being entered into
between Epitope and Agritope in connection with this Agreement, Epitope and
Agritope shall each pay their own costs and expenses incurred in connection with
the Distribution and the consummation of the transactions contemplated by this
Agreement. Agritope shall also pay the expenses of the Private Placement and the
expenses described on Schedule 2. Beginning December 1, 1997, Agritope shall pay
all costs and expenses incurred in the course of the Agritope Business. In
addition, commencing December 1, 1997, Epitope shall furnish services to
Agritope, and Agritope shall pay Epitope for such services, pursuant to the
Transition Services and Facilities Agreement and "Shared Services" shall no
longer be allocated by Epitope to Agritope. To the extent expenses that are to
be borne by Agritope are advanced by Epitope, Agritope shall reimburse Epitope
for such expenses, without interest, within five business days after the
Distribution.
9.3 Governing Law. This Agreement, the Related Agreements and
any other agreement entered into in connection with the Distribution, shall be
governed by, and construed and enforced in accordance with, the laws of the
state of Oregon (regardless of the laws that might otherwise govern under
applicable principles of conflict of laws).
9.4 Jurisdiction and Venue. Subject to the arbitration
provisions of this Agreement, each party consents to the personal jurisdiction
of the state and federal courts located in the state of Oregon and hereby waives
any argument that venue in any such forum is not convenient or proper.
9.5 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (i) on the date of service if served personally on the
party to whom notice is given; (ii) on the day of transmission if sent via
facsimile transmission to the facsimile number given below, provided telephonic
confirmation of receipt is obtained promptly after completion of transmission;
(iii) on the business day after delivery to an overnight courier service or the
express mail service maintained by the United States Postal Service, provided
receipt of delivery has been confirmed; or (iv) on the fifth day after mailing,
provided receipt of delivery is confirmed, if mailed to the party to whom notice
is to be given, by registered or
- 18 -
certified mail, postage prepaid, properly addressed and return-receipt
requested, to the party as follows:
If to Epitope: Epitope, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Agritope: Agritope, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address and facsimile number by giving the other party
written notice of its new address and facsimile number in the manner set forth
above.
9.6 Modification of Agreement. No modification, amendment or
waiver of any provision of this Agreement shall be effective unless the same
shall be in writing and signed by each of the parties hereto and then such
modification, amendment or waiver shall be effective only in the specific
instance and for the purpose for which given.
9.7 Termination. This Agreement may be terminated and the
Distribution abandoned at any time prior to the Record Date by, and in the sole
discretion of, Epitope without the approval of Agritope. In the event of such
termination, neither party (or any of its directors of officers) shall have any
liability of any kind to the other party.
9.8 Successors and Assigns. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by either party without the prior written consent of the other party,
and such consent shall not be unreasonably withheld.
9.9 No Third Party Beneficiaries. Except for certain parties
entitled to indemnification under Sections 4.1 and 4.2 hereof and listed
therein, this Agreement is solely for the benefit of the parties hereto and is
not intended to confer upon any other person except the parties hereto any
rights or remedies hereunder.
9.10 Titles and Headings; Interpretation. The titles and
headings to articles and sections herein are inserted for convenience of
reference only and are not intended to constitute a part of or to affect the
meaning or interpretation of this Agreement.
- 19 -
9.11 Exhibits. The exhibits and schedules to this Agreement
shall be construed with and as an integral part of this Agreement to the same
extent as if the same had been set forth verbatim herein.
9.12 Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable, the
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
9.13 No Waiver. Neither the failure nor any delay on the part
of any party hereto to exercise any right under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any right preclude
any other or further exercise of the same or any other right, nor shall any
waiver of any right with respect to any occurrence be construed as a waiver of
such right with respect to any other occurrence.
9.14 Survival. All covenants and agreements of the parties
contained in this Agreement will survive for ten years following the
Distribution Date, except for the covenants and agreements contained in Section
6.6, which shall continue indefinitely.
9.15 Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement,
and shall become a binding agreement when a counterpart has been signed by each
party and delivered to the other party.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed delivered on their behalf as of the date first written
above.
EPITOPE, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title President and CEO
AGRITOPE, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title Chairman, President and CEO
- 20 -
The undersigned consent to and agree to be bound by the terms
of this Agreement.
VINIFERA, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title Exec Vice President
AGRIMAX FLORAL PRODUCTS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title Exec Vice President
- 21 -
SCHEDULE 1
INTELLECTUAL PROPERTY TO BE ASSIGNED
NONE
- 22 -
SCHEDULE 2
CERTAIN AGRITOPE EXPENSES
1. ▇▇▇▇▇▇ ▇▇▇▇ fees and expenses for Agritope Stock Purchase and R&D
Agreements of $12,408.
2. All ▇▇▇▇▇▇ ▇▇▇▇ fees and expenses
3. Travel expenses for ▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ for June, September,
and November trips to Europe made in connection with private placement of
Agritope Stock Purchase and R&D Agreements.
4. Capital Asset Acquisitions
- Precision Computers -- Pentium PC $ 2,734
- Computer System, CD Player 699
- HP Gas Chromatograph 21,208
- APCO Technologies Grafting Machine 10,000
5. Prepaid rent on new Agritope facility $ 21,445
== ========
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EXHIBIT A
[EMPLOYEE BENEFITS AGREEMENT]
EXHIBIT B
[TAX ALLOCATION AGREEMENT]
EXHIBIT C
[TRANSITION SERVICES AND FACILITIES AGREEMENT]
- 24 -