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, IN THE UNITED STATES
OR TO A U.S. PERSON (AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER THE 1933
ACT), NOR MAY THESE WARRANTS BE EXERCISED IN THE UNITED STATES OR BY OR ON
BEHALF OF A U.S. PERSON, 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"), 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 ---------- ---, 200--
OR SUCH EARLIER DATE AS SPECIFIED HEREIN
WARRANTS TO PURCHASE COMMON STOCK
(and associated Preferred Stock Purchase Rights)
Warrant No. 97--- ------- Warrants
AGRITOPE, INC.
THIS CERTIFIES THAT
------------------------------
or registered assigns, 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"), United States of America ("U.S."), 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) upon official notice of issuance, 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
1
certified or official bank check in U.S. funds payable to the order of the
Company. These Warrants are issued pursuant to the Restated Placement Agent
Agreement between the Company and American Equities Overseas Inc. dated as of
December ----, 1997 (the "Placement Agent Agreement").
Section 1. Exercise Price. Each Warrant entitles the Warrantholder to
purchase one share of Common Stock for U.S. $7.00 (the "Exercise Price"),
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 --------- ----, 200--- (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 U.S. $.0l 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 U.S. $.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 stock split or stock
dividend), then, as a condition of the change in the capital structure
of the Company,
2
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. The
Company will not permit any change in its capital structure to occur
unless the issuer of the shares of stock or other securities to be
received by the holder of this Warrant Agreement, if not the Company,
agrees to be bound by and comply with the provisions of this Warrant
Agreement.
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 is 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 the exercise hereof for any purpose whatever, nor
shall anything contained herein be construed to
3
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 or to register the transfer of the Warrants evidenced hereby 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 or
transfer shall have been paid, such tax being payable by the holder of this
Warrant Agreement at the time of surrender for exercise or transfer.
Section 6. Registration Rights.
6.1 Piggyback Registration Rights. The Company has granted demand
registration rights to the holders of shares of Common Stock sold
pursuant to the Placement Agent Agreement. If, pursuant to such
registration rights, the Company is obligated to prepare a registration
statement covering such shares, the Company will give written notice of
such proposed registration to all holders of Warrants issued in
connection with the Placement Agent Agreement. If one or more of such
Warrantholders notifies the Company within 20 days after the effective
date of the notice sent by the Company to the Warrantholders that they
would like all or any of the shares of Common Stock issued or issuable
upon exercise of these Warrants (the "Warrant Shares") to be included in
the proposed registration, the Company will include such Warrant Shares
in the registration.
6.2 Demand Registration Rights. Commencing one year after the
first anniversary of the original issue date of this Warrant, upon the
request of the holders of at least 50 percent of the Warrant Shares
issued or issuable upon exercise of all Warrants issued in connection
with the Placement Agent Agreement, the Company will promptly give
written notice of such proposed registration to all holders of Warrant
Shares or Warrants issued pursuant to the Placement Agent Agreement.
Upon such a request, the Company shall as expeditiously as possible use
its best efforts to file a registration statement on Form S-3 or
successor Form (the "Form S-3") under the 1933 Act with respect to the
resale of such Warrant Shares which the Company has been requested to
register (a) in such request, and (b) in any response to such notice
received by the Company within 20 days after the effective date of such
notice. The Company shall have an obligation to file a registration
statement under this Section 6.2 only if it is eligible to use Form S-3
or successor form at the time of the request.
4
6.3 Application of Registration Rights Provisions. The provisions
of Section 5.1 and Sections 5.2 through 5.7 of the Stock Purchase
Agreements entered into by persons purchasing Common Stock pursuant to
the Placement Agent Agreement shall govern any registration of shares
pursuant to Sections 6.1 or 6.2 hereof, and the signature of the
Warrantholder hereto signifies its agreement to be bound by such
provisions.
Section 7. Transfer and Exchange.
7.1 Transfer. This Warrant Agreement is transferable on the
registry books of the Company subject to the restrictions on the first
page hereof and in Sections 7.3 and 7.4 hereof. The Company may deem and
treat the person or entity in whose name this Warrant Agreement is
registered as the absolute owner hereof (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the
Company) for all purposes whatever, and the Company shall not be
affected by any notice to the contrary.
7.2 Exchange. Subject to the provisions of Sections 7.3 and 7.4
hereof and the restrictions on the first page hereof, this Warrant
Agreement is exchangeable at the principal office of the Company for
Warrant Agreements to purchase the same aggregate number of shares of
Common Stock as are purchasable hereunder, each new Warrant Agreement to
represent the right to purchase such number of shares as the
Warrantholder shall designate at the time of such exchange.
7.3 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.
7.4 Minimum Warrant Agreement Amount. Notwithstanding the
provisions of Sections 7.1 and 7.2 hereof, the Company shall not be
required to issue a Warrant Agreement for Warrants covering less than
25,000 shares of Common Stock, except in the case of a partial exercise
by the Warrantholder of this Warrant Agreement that leaves Warrants
exercisable to purchase less than such number of shares that are to
remain registered in the name of the exercising Warrantholder, and any
subsequent partial exercise, transfer or exchange of such Warrant
Agreement.
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.
5
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 international courier service,
or by registered mail, airmail postage prepaid, return receipt requested, to:
(a) the Company at 0000 X.X. Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxx 00000, U.S.A.,
Attn: Secretary, with a copy to Xxxxxx Xxxx LLP, 1600 Pioneer Tower, 000 X.X.
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000-0000, U.S.A., Attn: Xxxxx X. Xxxxx., or at
such other addresses as may be specified by the Company by notice given to the
Warrantholders in accordance with this Section 9, and (b) to the Warrantholders
at the addresses set forth in the registry books of the Company referred to in
Section 7.1 hereof, with copies to Xxxxxx xx Xxxxxxxx, American Equities
Overseas (U.K.) Ltd., 00 Xxx Xxxx Xxxxxx, Xxxxxx XxX 0XX, Xxxxxx Xxxxxxx, and
Xxxx X. Xxxxxxxx, Esq., 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000, U.S.A., or such other addresses as may be specified by the Warrantholders
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 10 days after the mailing
date; notices, requests or other 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. Certain Definitions. Rules 9.02(o) and 9.02(p) of Regulation
S promulgated under the 1933 Act defining "U.S. person" and "United States,"
respectively, are set forth in Appendix 1.
Section 12. 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:-----------------, 199--.
AGRITOPE, INC.
By---------------------------------
Title------------------------------
The undersigned Warrantholder agrees to be bound by the terms
hereof.
-----------------------------------
By---------------------------------
Title------------------------------
APPENDIX 1
to
Warrant Agreement
Set forth below is the text of Rule 902(o) promulgated under the
1933 Act, which defines "U.S. person" as follows:
(o) U.S. Person.
(1) "U.S. person" means:
(i) Any natural person resident in the United States;
(ii) Any partnership or corporation organized or incorporated
under the laws of the United States;
(iii) Any estate of which any executor or administrator is a U.S.
person;
(iv) Any trust of which any trustee is a U.S. person;
(v) Any agency or branch of a foreign entity located in the
United States;
(vi) Any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit
or account of a U.S. person;
(vii) Any discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary organized,
incorporated, or (if an individual) resident in the United States; and
(viii) Any partnership or corporation if: (A) organized or
incorporated under the laws of any foreign jurisdiction; and (B) formed
by a U.S. person principally for the purpose of investing in securities
not registered under the 1933 Act, unless it is organized or
incorporated, and owned, by accredited investors (as defined in Rule
501(a)) who are not natural persons, estates or trusts.
(2) Notwithstanding paragraph (o)(1) of this section, any
discretionary account or similar account (other than an estate or trust) held
for the benefit or account of a non-U.S. person by a dealer or other
professional fiduciary organized, incorporated, or (if an individual) resident
in the United States shall not be deemed a "U.S. person."
(3) Notwithstanding paragraph (o)(1) of this section, any estate
of which any professional fiduciary acting as executor or administrator is a
U.S. person shall not be deemed a U.S. person if:
(i) An executor or administrator of the estate who is not a U.S.
person has sole or shared investment discretion with respect to the
assets of the estate; and
(ii) The estate is governed by foreign law.
(4) Notwithstanding paragraph (o)(1) of this section, any trust
of which any professional fiduciary acting as trustee is a U.S. person shall not
be deemed a U.S. person if a trustee who is not a U.S. person has sole or shared
investment discretion with respect to the trust assets, and no beneficiary of
the trust (and no settlor if the trust is revocable) is a.
U.S. person.
(5) Notwithstanding paragraph (o)(l) of this section, an employee
benefit plan established and administered in accordance with the law of a
country other than the United States and customary practices and documentation
of such country shall not be deemed a U.S. person.
(6) Notwithstanding paragraph (o)(1) of this section, any agency
or branch of a U.S. person located outside the United States shall not be deemed
a "U.S. person" if:
(i) The agency or branch operates for valid business reasons; and
(ii) The agency or branch is engaged in the business of insurance
or banking and is subject to substantive insurance or banking
regulation, respectively, in the jurisdiction where located.
(7) The International Monetary Fund, the International Bank for
Reconstruction and Development, the Inter-American Development Bank, the Asian
Development Bank, the African Development Bank, the United Nations, and their
agencies, affiliates and pension plans, and any other similar international
organizations, their agencies, affiliates and pension plans shall not be deemed
"U.S. persons."
Set forth below is the text of Rule 9.02(p) promulgated under the
1933 Act, which defines "United States" as follows:
(p) "United States" means the United States of America, its
territories and possessions, any State of the United States, and the District of
Columbia.
ELECTION TO EXERCISE WARRANTS
[NOTE: Unless the transaction has been registered under the Securities
Act of 1933, as amended (the "1933 Act"), or is exempt from
registration thereunder, this Election to Exercise Warrants must be
executed, and the Warrant Shares must be delivered, outside of the
U.S., its territories and possessions.]
To: Agritope, Inc.
0000 X. X. Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
X.X.X.
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 U.S. $---------- in
accordance with the terms thereof.
The undersigned hereby certifies that (xxxx one of the two responses
below):
--- (i) It is the sole beneficial owner of the Warrants being
exercised, (ii) it is not a U.S. person, as defined in
Appendix l to the attached Warrant Agreement and within the
meaning of Regulation S promulgated by the U.S. Securities and
Exchange Commission pursuant to the 1933 Act, and (iii) it is
not exercising Warrants for the benefit of any U.S. person.
--- 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 by a
bank or brokerage firm doing
business in the U.S.]
Dated:---------------------
Warrantholder: ----------------------------------
Address: ----------------------------------
----------------------------------
----------------------------------
FORM OF ASSIGNMENT
[NOTE: Unless the transaction has been registered under the
1933 Act or is exempt from registration thereunder, this
Assignment must be executed, and the re-issued Warrants must be
delivered, outside of the U.S., its territories and
possessions.]
FOR VALUE RECEIVED, the undersigned registered owner of this
Warrant Agreement hereby sells, assigns and transfers to the Assignee(s) named
below all of the rights of the undersigned under the attached Warrant Agreement,
with respect to Warrants for the number of shares of Common Stock set forth
below:
Name of Assignee Address No of Shares*
---------------- ------- -------------
*Please note that the minimum denomination in which Warrant
Agreements may be issued is 25,000 shares of Common Stock.
Dated: ----------------.
Warrantholder:--------------------------
By--------------------------------------
Title-----------------------------------
[Name of Warrantholder must be identical
to name shown in the registry books of
the Company; signature must be
guaranteed by a bank or brokerage firm
doing business in the U.S.]
EXHIBIT B
Designated Recipients of Warrants to be
Issued Under this Agreement
No. of Shares of Common
Name Stock Covered by Warrants
---- -------------------------
