THESE WARRANTS AND THE SHARES OF COMMON STOCK UNDERLYING THESE WARRANTS HAVE NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"1933 ACT") AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, OR OTHERWISE
DISPOSED OF, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, UNLESS (i) THE
TRANSACTION IS REGISTERED UNDER THE 1933 ACT AND ANY APPLICABLE SECURITIES LAWS
OF ANY STATE, TERRITORY OR POSSESSION OF THE UNITED STATES OR THE DISTRICT OF
COLUMBIA ("STATE ACT"), AND/OR (ii) AN EXEMPTION FROM REGISTRATION UNDER THE
1933 ACT OR ANY APPLICABLE STATE ACT IS AVAILABLE AND THE ISSUER HAS RECEIVED AN
OPINION OF COUNSEL TO SUCH EFFECT REASONABLY SATISFACTORY TO IT.
VOID AFTER 5 P.M., UNITED STATES PACIFIC TIME,
ON DECEMBER 31, 2000
OR SUCH EARLIER DATE AS SPECIFIED HEREIN
WARRANTS TO PURCHASE COMMON STOCK
(and associated Preferred Stock Purchase Rights)
Warrant No. 97--- 83,333 Warrants
AGRITOPE, INC.
THIS CERTIFIES THAT
VECTOR SECURITIES INTERNATIONAL, INC. ("Vector Securities")
is the registered holder of the number of Warrants (each, a "Warrant," and
collectively, the "Warrants") set forth above. Each Warrant represented by this
certificate for Warrants ("Warrant Agreement") entitles the registered holder
thereof (the "Warrantholder") to purchase from Agritope, Inc., a corporation
incorporated under the laws of the state of Delaware (the "Company" or
"Agritope"), one fully paid and nonassessable share of common stock, par value
$.01 per share, of the Company, including associated preferred stock purchase
rights (collectively, the "Common Stock"), upon presentation and surrender of
this Warrant Agreement with the accompanying Election to Exercise Warrants duly
completed, at any time (except as provided below) after the Common Stock
issuable upon exercise of these Warrants has been approved for trading on The
Nasdaq Stock Market and prior to 5 p.m., U.S. Pacific time, on the Expiration
Date (as defined in Section 2 hereof), at the corporate offices of the Company
at 0000 X.X. Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxx 00000, or at such other address
as may be specified by the Company pursuant to Section 9 hereof, accompanied by
payment of the Exercise Price (as defined herein) and any applicable taxes,
either in cash in U.S. funds or by certified or official bank check in U.S.
funds payable to
- 1 -
the order of the Company. These Warrants are issued as compensation for Vector
Securities' services in connection with the spin-off of the Company from
Epitope, Inc.
Section 1. Exercise Price. Each Warrant entitles the Warrantholder to
purchase one share of Common Stock for $------ (the "Exercise Price"), which
amount is equal to 110 percent of the average closing price of shares of the
Common Stock as quoted on the Nasdaq SmallCap Market on the five consecutive
trading days beginning on the Distribution Date (as defined in the Company's
registration statement on Form S-1 in connection with its spin off from Epitope,
Inc.), subject to adjustment as provided herein.
Section 2. Expiration. All Warrants not theretofore exercised shall
expire at 5 p.m., U.S. Pacific time, on December 31, 2000 (the "Expiration
Date").
Section 3. Adjustments of Number and Kind of Shares Purchasable and
Exercise Price. The number and kind of securities or other property purchasable
upon exercise of a Warrant shall be subject to adjustment from time to time upon
the occurrence, after the date hereof, of the following events:
3.1 If the outstanding shares of the Company's Common Stock
are divided into a greater number of shares or a dividend in Common
Stock is paid on the Common Stock, the number of shares of Common Stock
issuable on exercise of the Warrants shall be proportionately increased
and the Exercise Price in effect immediately prior to such subdivision
or at the record date of such dividend shall, simultaneously with the
effectiveness of such subdivision or immediately after the record date
of such dividend, be proportionately reduced; and, conversely, if the
outstanding shares of Common Stock are combined into a smaller number
of shares of Common Stock, the number of shares of Common Stock
issuable upon exercise of the Warrants shall be proportionately reduced
and the Exercise Price in effect immediately prior to such combination
shall, simultaneously with the effectiveness of such combination, be
proportionately increased. The increases and reductions provided for in
this subsection 3.1 shall be made with the intent and, as nearly as
practicable, the effect that neither the percentage of the total equity
of the Company issuable on exercise of the Warrants nor the price
payable for such percentage upon such exercise shall be affected by any
event described in this subsection 3.1.
3.2 No adjustment of the Exercise Price will be made if the
amount of the adjustment is less than $.01 per share, but in that case
any adjustment that would otherwise be required to be made will be
carried forward and will be made at the time of and together with the
next adjustment of the Exercise Price which, together with any
adjustment carried forward, amounts to $.01 per share or more.
3.3 In case of any change in the Common Stock of the Company
through merger, consolidation, reclassification, reorganization,
partial or complete liquidation, or other change in the capital
structure of the Company (not including a combination of shares or the
issuance of additional shares of Common Stock by the Company by
- 2 -
stock split or stock dividend), then, as a condition of the change in
the capital structure of the Company, provision shall be made so that
the holder of this Warrant Agreement will have the right thereafter to
receive upon the exercise of the Warrants the kind and amount of shares
of stock or other securities or property to which such holder would
have been entitled if, immediately prior to such merger, consolidation,
reclassification, reorganization, recapitalization, or other change in
the capital structure, such holder had held the number of shares of
Common Stock issuable upon the exercise of the Warrant. In any such
case, appropriate adjustment shall be made in the application of the
provisions set forth herein with respect to the rights and interest
thereafter of the Warrantholder, to the end that the provisions set
forth herein shall thereafter be applicable, as nearly as reasonably
may be, in relation to any shares of stock or other property thereafter
deliverable upon the exercise of the Warrants.
3.4 When any adjustment is required to be made in the number
of shares of Common Stock, other securities, or property purchasable
upon exercise of the Warrants, the Company shall promptly determine the
new number of shares or other securities or property purchasable upon
exercise of the Warrants and (a) prepare and retain on file a statement
describing in reasonable detail the method used in arriving at the new
number of shares or other securities or property purchasable upon
exercise of the Warrants and (b) cause a copy of such statement to be
mailed to the Warrantholder within 30 days after the date when the
event giving rise to the adjustment occurred.
3.5 No fractional shares of Common Stock or other securities
shall be issued in connection with the exercise of any Warrants, but
the Company shall pay, in lieu of fractional shares, a cash payment
therefor on the basis of the fair market value of the Common Stock or
other securities on the business day immediately prior to the exercise.
"Fair market value" of the Common Stock or other securities means the
average of the reported high and low sale prices, or, if there is no
sale on such day, the average of the reported bid and asked prices, for
the Common Stock or other securities on that day on the securities
exchange or automated securities interdealer quotation system on which
such Common Stock or other securities are then traded or listed, or, if
the Common Stock or other securities are not traded or listed on a
national securities exchange or interdealer quotation system on such
day, on the basis of the fair market value thereof as determined by the
Board of Directors of the Company, which determination shall be
conclusive.
3.6 Notwithstanding anything herein to the contrary, there
shall be no adjustment made hereunder on account of the sale and
issuance of the shares of Common Stock or other securities purchasable
upon exercise of the Warrants.
Section 4. Rights of Warrantholder as Stockholder. No holder of this
Warrant Agreement shall, as such, be entitled to vote, receive dividends, or be
deemed the holder of Common Stock or any other securities of the Company that
may at any time be issuable on
- 3 -
the exercise hereof for any purpose whatever, nor shall anything contained
herein be construed to confer upon the holder of this Warrant Agreement, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof or give or withhold consent to any corporate action (whether
upon any matter submitted to stockholders at any meeting thereof or otherwise)
including, without limitation, giving or withholding consent to any merger,
recapitalization, issuance of stock, reclassification of stock, exchange of
stock, consolidation or conveyance, or to receive notice of meetings or other
actions affecting stockholders or to receive dividends or subscription rights or
other distributions.
Section 5. Payment of Certain Taxes and Charges. The Company shall not
be required to issue or deliver any certificate for shares of Common Stock or
other securities upon the exercise of Warrants evidenced by this Warrant
Agreement until any applicable transfer tax and any other taxes or governmental
charges that the Company may be required by law to collect in respect of such
exercise shall have been paid, such tax being payable by the holder of this
Warrant Agreement at the time of surrender for exercise.
Section 6. Registration Rights.
6.1 Demand Registration Rights. Commencing one year after the
original issue date of this Warrant and continuing until the third
anniversary of the issue date (the "Exercise Period"), upon the
reasonable request of the Warrantholder or holder of the Warrant Shares
issued upon exercise of the Warrants, the Company shall as
expeditiously as possible use its best efforts to file a Registration
Statement on Form S-3 or a successor form ("Form S-3") under the 1933
Act with respect to the resale of Warrant Shares. The Company shall
have an obligation to file a Registration Statement under this Section
6.1 only if it is eligible to use Form S-3 or a successor form at the
time of the request and only once during the Exercise Period.
6.2 Registration Procedure. If obligated to file a
Registration Statement under Section 6.1, the Company shall follow the
registration procedures set forth in this Section 6.2. The Company
shall use its best efforts to cause the Registration Statement to
become effective under the 1933 Act and to maintain the effectiveness
of the Registration Statement for a period of 90 days. If required by
applicable law, the Company shall furnish to the holder of the
registered Warrant Shares such reasonable number of copies of a
prospectus, in conformity with the requirements of the 1933 Act, and
any amendments or supplements thereto and such other documents as the
holder of the registered Warrant Shares may reasonably request in order
to facilitate the disposition of the registered Warrant Shares after
the Registration Statement has been declared effective. The Company
shall use reasonable efforts to notify the holder of the registered
Warrant Shares of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, to file as promptly as may be
- 4 -
practicable under the circumstances such amendments and supplements as
may be required on account of such event, and to use its best efforts
to cause each such amendment to become effective. The holder of the
registered Warrant Shares shall not effect sales of Warrant Shares
after receipt of notice from the Company that any such amendment or
supplement is required on account of any such event, until the
amendment becomes effective or the supplement has been filed. The
Company's obligations under this Section 6.2 shall expire at such time
as the Company is no longer required to maintain the effectiveness of
the Registration Statement as provided for above.
6.3 Limit on Registration Rights. Notwithstanding any other
provision of this Article , the Company shall not be obligated to
register any Warrant Shares if it furnishes the Warrantholder a written
opinion of counsel to the Company that such Warrantholder will be able
to sell all the Warrant Shares that such Warrantholder in good faith
wishes to sell in a three-month period pursuant to Rule 144 (or a
comparable successor rule adopted by the Securities and Exchange
Commission).
6.4 Deferral for Material Events. If, because of a proposed
material acquisition or any other material event, the Agritope board of
directors reasonably determines that the filing or effectiveness of a
Registration Statement or of a supplement or amendment to the
prospectus pursuant to this Article 6 would be detrimental to the
Company, Agritope may defer such filing or effectiveness for a period
of up to 120 days after such filing or effectiveness would otherwise
ordinarily have occurred. For the purposes of the preceding sentence,
it shall be presumed that a Registration Statement would ordinarily be
filed 45 days after request under Section , that a supplement or
amendment to the prospectus would ordinarily be filed 10 days after
notice referred to in Section and that the Registration Statement or
any amendment to the prospectus would ordinarily become effective five
business days after filing an acceleration request.
6.5 Furnish Information; Expenses. It shall be a condition
precedent to the obligations of Agritope in regard to the Warrant
Shares to be registered pursuant to Section that the holder of such
shares shall furnish to Agritope such information regarding itself, the
Warrant Shares held by it, and the intended method of disposition of
its Warrant Shares as shall be required to effect the registration of
its Warrant Shares.
6.6 Expenses of Registration. All expenses relating to
registration of the Warrant Shares (other than underwriting discounts
and commissions, transfer taxes, if any, and fees and disbursements of
counsel to the holder of the Warrant Shares) incurred in connection
with the registration or filings pursuant to Section 6.1 above,
including without limitation all registration and filing fees, printing
and accounting fees, and fees and disbursements of counsel for the
Company, shall be borne by the Company.
- 5 -
6.7 Indemnification.
(a) Indemnification by Agritope. To the extent
permitted by law, the Company shall indemnify and hold
harmless the Warrantholder and its officers, directors,
partners, agents, and employees or any underwriter (as defined
in the 0000 Xxx) of such Warrant Shares, and each person, if
any, who controls the Warrantholder against any losses,
claims, damages, or liabilities (joint or several) to which
they may become subject under the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or other
federal or state law, insofar as such losses, claims, damages,
or liabilities (or actions in respect thereof) arise out of or
are based upon any of the following statements, omissions or
violations (a "Violation"):
(i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement,
including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto,
(ii) the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by Agritope
of the 1933 Act, the 1934 Act, any state securities law, or
any rule or regulation promulgated under the 1933 Act, the
1934 Act, or any state securities law.
Agritope shall reimburse the Warrantholder and each such
holder, officer, director, partner, agent, employee,
underwriter or controlling person for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability, or action. This indemnity agreement shall not apply
to amounts paid in settlement of any loss, claim, damage,
liability, or action if such settlement is effected without
the consent of Agritope (which consent shall not be
unreasonably withheld), nor shall Agritope be liable to the
Warrantholder or such other holder in any case for any loss,
claim, damage, liability, or action (A) to the extent that it
arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information
furnished expressly for use in connection with such
registration by or on behalf of the Warrantholder, such other
holder, or such underwriter or controlling person or (B) in
the case of a sale directly by the Warrantholder or holder of
the Warrant Shares (including a sale of such Warrant Shares
through any underwriter retained by the Warrantholder or such
other holder to engage in a distribution solely on behalf of
the Warrantholder or such other holder), if such untrue
statement or alleged untrue statement or omission or alleged
omission was contained in a preliminary prospectus and
- 6 -
corrected in a final or amended prospectus, and the
Warrantholder or such other holder failed to deliver a copy of
the final or amended prospectus at or prior to the
confirmation of the sale of the Warrant Shares to the person
asserting any such loss, claim, damage or liability in any
case where such delivery is required by the 1933 Act.
(b) Indemnification by Holder of the Warrant Shares.
To the extent permitted by law, the Warrantholder shall
indemnify and hold harmless Agritope, each of its directors,
each of its officers, each person, if any, who controls
Agritope within the meaning of the 1933 Act, each agent and
underwriter for Agritope, each other holder of shares selling
securities covered by the Registration Statement, each
director, officer, partner, agent, and employee of such other
holder or underwriter, and each person, if any, who controls
such other holder or underwriter, against any losses, claims,
damages, or liabilities (joint or several) to which Agritope
or any such director, officer, partner, agent, employee,
controlling person, underwriter, or other holder may become
subject, under the 1933 Act, the 1934 Act, or other federal or
state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or
are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by
or on behalf of such Warrantholder expressly for use in
connection with such registration; and such Warrantholder
shall reimburse any legal or other expenses reasonably
incurred by Agritope or any such director, officer, partner,
agent, employee, controlling person, underwriter, or other
holder, in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection
shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement
is effected without the consent of such Warrantholder, which
consent shall not be unreasonably withheld; and provided,
further, that the indemnification obligation of such
Warrantholder shall be limited to the aggregate public
offering price of the Warrant Shares sold by the Warrantholder
pursuant to such registration.
(c) Notice, Defense and Counsel. Promptly after
receipt by an indemnified party under this Section of notice
of the commencement of any action (including any governmental
action), such indemnified party shall, if a claim in respect
thereof is to be made against any indemnifying party under
this Section , deliver to the indemnifying party a written
notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the
indemnifying party so desires to assume and control the
defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and
expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel
- 7 -
retained by the indemnifying party would be inappropriate due
to actual or potential differing interests between such
indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its
ability to defend such action, shall relieve such indemnifying
party of any liability to the indemnified party under this
Section to the extent of such prejudice, but the omission so
to deliver written notice to the indemnifying party shall not
relieve it of any liability that it may have to any
indemnified party otherwise than under this Section .
6.8 Survival of Rights and Obligations. The obligations of
Agritope and the Warrantholder under Section shall survive the
completion of any offering of the Warrant Shares covered by the
Registration Statement.
Section 7. Securities Act of 1933. The Warrantholder, by acceptance
hereof, agrees that this Warrant Agreement and the shares of Common Stock issued
or issuable upon exercise of this Warrant Agreement may not be offered or sold
except in compliance with the 1933 Act and applicable state securities laws. The
Warrantholder consents to the Company making a notation on its records and on
the certificates for any shares of Common Stock issued upon exercise hereof in
order to implement such restriction on transferability.
Section 8. Holdback Agreement. The Warrantholder, if requested by the
Company and an underwriter of the Company's securities, shall agree not to sell
or otherwise transfer or dispose of any Warrants or Warrant Shares for a
specified period of time not to exceed 180 days following the effective date of
a registration statement pursuant to which the Company proposes to sell its
securities to the public generally; provided, however, that all executive
officers and directors of the Company enter into similar agreements.
Section 9. Notices. Any notice, request or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally, by facsimile, by courier service, or by
registered mail, airmail postage prepaid, return receipt requested, to: (a) the
Company at 00000 X.X. Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxx 00000 (effective
March 15, 1998), or before March 15, 1998, at 0000 X.X. Xxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxx 00000, Attn: Chief Financial Officer, with a copy to Xxxxxx
Xxxx LLP, Suite 1600, 000 X.X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000, Attn: Xxxxx
X. Xxxxx or at such other addresses as may be specified by the Company by notice
given to the Warrantholder in accordance with this Section 9, and (b) to the
Warrantholder at Vector Securities International, Inc., 0000 Xxxx Xxxx Xxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, with a copy to Xxxx X. Xxxxxxxxx, 0000 X.
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or such other addresses as may be
specified by the Warrantholder by notice given to the Company in accordance with
this Section 9. Any notice, request or other communication (other than an
Election to Exercise Warrants) given by registered airmail shall be deemed given
five days after the mailing date; notices, requests or other
- 8 -
communications given in any other manner and any Election to Exercise Warrants
shall be deemed given when received.
Section 10. Amendment. This Warrant Agreement may be amended or its
provisions waived only by an instrument in writing signed by the Company and the
Warrantholder.
Section 11. Law Governing. This Warrant Agreement shall be governed by
and construed in accordance with the laws of the state of Delaware, without
giving effect to choice of laws principles thereof.
Dated: ---------------------, 1998.
AGRITOPE, INC.
By
Title
The undersigned Warrantholder agrees to be bound by the terms
hereof.
VECTOR SECURITIES INTERNATIONAL,
INC.
By
Title
- 9 -
ELECTION TO EXERCISE WARRANTS
To: Agritope, Inc.
00000 X.X. Xxxxx Xxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxx 00000
The undersigned hereby exercises Warrants represented by the attached
Warrant Agreement for --------- shares of the Common Stock, including associated
preferred stock purchase rights, of Agritope, Inc. (collectively, the "Warrant
Shares"), and tenders payment herewith in the amount of $---------- in
accordance with the terms thereof.
The undersigned hereby certifies that the transaction in which the
Warrant Shares will be delivered upon exercise of the Warrant has been
registered under the 1933 Act or is exempt from registration thereunder and
Agritope, Inc. has been provided with a written opinion of counsel to that
effect. A legal opinion regarding the registration of the transaction will be
obtained at the expense of Agritope, Inc. by its designated legal counsel upon
notice of exercise of the Warrant Agreement by the Warrantholder at any time
during the effective period of a registration statement covering the
transaction; any other legal opinion shall be the responsibility of the
Warrantholder.
Please deliver the certificate and a new Warrant Agreement for the
unexercised Warrants, if any, to:
----------------------------------------
----------------------------------------
----------------------------------------
Warrantholder:
By
Title
[Name of Warrantholder must be identical to
name shown in the registry books of the
Company; signature must be guaranteed.]
Dated:---------------------
Warrantholder: ----------------------------------
Address: ----------------------------------
----------------------------------
----------------------------------
