SUBSCRIPTION AGREEMENT FOR SHARES OF
CLASS B COMMON STOCK AND SPECIAL MEMBERSHIP INTERESTS
(Social Security of Employer Identification No.)
(Name)
(Address)
PRO-FAC COOPERATIVE, INC.
90 LINDEN OAKS, ROCHESTER, NEW YORK 14625
I hereby express my desire for membership in Pro-Fac Cooperative, Inc.
("Pro-Fac") as a Class B Member upon the following terms and conditions:
Subscription.
I hereby subscribe for shares of Class B Common Stock and a Special Membership
Interest of Pro-Fac.
The number of shares of Class B Common Stock issuable to me and the value of the
Special Membership Interest to be issued to me pursuant to this Subscription
Agreement has been determined by Pro-Fac in accordance with the formula
described in Pro-Fac's Prospectus dated November ____, 1999 is set forth on the
"Calculation and Acceptance Page" of this Subscription Agreement.
1. On __________ ____, 1999 I entered into a General Marketing Agreement
with PF Acquisition II, Inc., together with an annual crop delivery
agreement(s). The term of the General Marketing Agreement is for a
period of three years. Under the terms of the General Marketing
Agreement, beginning September 1, 1999, I am permitted to terminate the
agreement upon 90 days prior written notice.
2. Under my 1999 crop delivery agreement(s) I have agreed to produce the
crop(s) for delivery to Pro-Fac in the amount(s) specified below:
CROP(S) BASE ACRES TONNAGE
3. As consideration for Pro-Fac's issuance of shares of Class B Common
Stock and a Special Membership Interest to me, I hereby agree:
a. To the cancellation of my right to terminate the General
Marketing Agreement as provided in Section 10 of that
agreement, and that this Subscription Agreement, when executed
by both me and Pro-Fac, shall constitute an instrument
modifying Section 10 of the General Marketing Agreement and
that Section 10 of that agreement shall read in its entirety
as follows: "10. The term of this agreement shall be for three
consecutive production years."; and
b. To the assignment of the General Marketing Agreement, my 1999
crop delivery agreement(s) and all subsequent crop delivery
agreements entered into by me, as contemplated under the
General Marketing Agreement, to Pro-Fac, and that from and
after the date this Subscription Agreement is executed by both
me and Pro-Fac, Pro-Fac shall be the successor of PF
Acquisition II, Inc. as the party to those agreements and,
except as provided in Subsection a. above and the substitution
of Pro-Fac, such agreements and their respective terms shall
remain in full force and effect.
4
Agreements and Representations.
1. Subject to the limitations set forth below in subsections a. and b., I
hereby grant to Pro-Fac the right to repurchase all of my shares of
Class B Common Stock and the Special Membership Interest issued to me
pursuant to this Subscription Agreement, or otherwise owned by me, for
an aggregate consideration of $5.00. Pro-Fac's right to exercise this
repurchase right shall be conditioned only upon the following:
a. In the event Pro-Fac shall exercise its right to repurchase
hereunder, Pro-Fac shall repurchase all shares of Class B
Common Stock and all Special Membership Interests outstanding;
and
b. Pro-Fac's right to repurchase hereunder may be exercised only
within 180 days after Pro-Fac abandons or transfers its
ownership interest in PF Acquisition II, Inc.
I hereby acknowledge and agree that:
o I have not given any cash consideration for the shares of
Class B Common Stock or Special Membership Interest issued to
me pursuant to this Subscription Agreement; and
o the aggregate repurchase consideration of $5.00 payable to me
does not in any way reflect the current market value or par
value of the shares of Class B Common Stock or Special
Membership Interest; and
o in the event Pro-Fac determines to reduce or terminate the
marketing of one or more of the crops I have agreed to produce
and deliver under my General Marketing Agreement and crop
delivery agreement(s) then, unless and until Pro-Fac's right
to repurchase hereunder shall have terminated, I will be
required to hold my shares of Class B Common Stock supporting
that crop or those crops, and notwithstanding any agreement or
instrument to the contrary, including Pro-Fac's Bylaws, I will
not be entitled to receive the par value of $5.00 per share of
Class B Common Stock or the face value of my Special
Membership Interest unless and until Pro-Fac's repurchase
rights hereunder shall have been terminated; and
o Pro-Fac's repurchase rights hereunder shall continue until at
least June 29, 2002, and Pro-Fac's board of directors may
extend such time without notice to me.
2. I was a member-grower of Agripac, Inc. on February 22, 1999.
3. I acknowledge that this Subscription Agreement and my qualifications
for membership as a Class B Member must be reviewed by the board of
directors of Pro-Fac and accepted by them as a condition of my
membership; that the terms of this Subscription Agreement, the General
Marketing Agreement and the crop delivery agreement(s) are not binding
upon Pro-Fac until accepted by Pro-Fac.
4. I hereby agree, as a condition of membership, that I will take into
account in determining my gross income for federal income tax purposes
the stated dollar amount of all patronage dividends paid to me by
Pro-Fac by means of written notices of allocation within the meaning of
the pertinent provisions of the Internal Revenue Code of 1986, as
amended.
5. I understand that written or oral information or representations other
than those appearing in the Pro-Fac Registration Statement on Form S-2,
the Prospectus dated November ___, 1999, which is a part of the
Registration Statement, and the documents incorporated by reference
into the Prospectus have not been authorized by Pro-Fac.
Miscellaneous
1. This subscription is and shall be irrevocable and the subscription rights
represented hereby are non-transferable.
2. Neither this Subscription Agreement nor any provision hereof shall be
waived, modified, changed, discharged, terminated, revoked, or canceled
except by an instrument in writing signed by the party against whom any
change, discharge or termination is sought.
3. This Subscription Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
4. This Subscription Agreement shall be enforced, governed and construed
in all respects in accordance with the laws of the State of New York,
as such laws are applied by New York courts to agreements entered into
and to be performed in New York State and shall be binding upon me, my
heirs, estate, legal representatives, successors and assigns and shall
inure to the benefit of Pro-Fac and its successors and assigns.
5. I hereby acknowledge receipt of Pro-Fac's Prospectus dated November
___, 1999, its Form 10-K for its Fiscal Year Ended June 26, 1999, its
Form 10-Q for its Fiscal Quarter Ended September 25, 1999, its Restated
Certificate of Incorporation and its Bylaws. I have reviewed the
foregoing documents prior to executing this application for membership.
Subscriber's Name and Signature Print
(Subscriber's Name)
Signed
(Date) (Subscriber's Signature)
Print
(Witness's Name)
Signed
(Date) (Witness)
Calculation and Acceptance Page
For
------------------------
(Subscriber)
1. Shares of Class B Common Stock at $5.00 per share (par value) approved for issuance to above subscriber:
INVESTMENT RATE
BASE ACRES/ AVERAGE COMMERCIAL (ROUNDED UP TO SHARES OF CLASS B
CROP(S) TONNAGE MARKET VALUE NEAREST $5.00) COMMON STOCK
(FOUR YEARS)
x 25% = /$5.00 =
---------- -------------- -------------------- ------------ --------------
x 25% = /$5.00 =
---------- -------------- -------------------- ------------ --------------
x 25% = /$5.00 =
---------- -------------- -------------------- ------------ --------------
x 25% = /$5.00 =
---------- -------------- -------------------- ------------ --------------
x 25% = /$5.00 =
---------- -------------- -------------------- ------------ --------------
x 25% = /$5.00 =
---------- -------------- -------------------- ------------ --------------
2. Value of Special Membership Interest issuable to above subscriber:
Subscriber's historic equity ownership in Agripac, Inc. = $___________.
58% of Subscriber's historic equity ownership in Agripac, Inc. = ________,
less total investment rate $____ ($5.00 X shares of Class B Common Stock)
= Special Membership Interest equal to $_________.
3. Aggregate par value of Class B Common Stock and face value of Special
Membership Interest equals $______________.
--------------------------------------
Subscription accepted by Pro-Fac Cooperative, Inc. this ___day of _______, 1999.
SIGNATURE DATE
PRO-FAC COOPERATIVE, INC.
By:
Name:
Title: