THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (the "1933 ACT"),
AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF UNLESS THE TRANSACTION
IS REGISTERED UNDER THE 1933 ACT AND APPLICABLE STATE LAW OR AN EXEMPTION FROM
REGISTRATION REQUIREMENTS IS AVAILABLE.
AGRITOPE, INC.
Warrant for the Purchase of Shares of Common Stock
--------------------------------------------------
April 30, 1998
No. 011 83,333 Shares
FOR VALUE RECEIVED, AGRITOPE, INC., a Delaware corporation (the "Company"),
hereby certifies that VECTOR SECURITIES INTERNATIONAL, INC., or permitted
assigns thereof ("Vector"), is entitled to purchase from the Company, at any
time or from time to time prior to 5:00 p.m., New York City time, on December
30, 2000 (the "Expiration Date"), 83,333 fully paid and nonassessable shares of
the common stock, $.01 par value, of the Company, including associated preferred
stock purchase rights ("Common Stock"), upon payment of the purchase price of
$7.343 per share, subject to adjustment pursuant to the terms hereof.
Hereinafter (i) the shares of Common Stock purchasable hereunder or under any
other Warrant (as hereinafter defined) are referred to as the "Warrant Shares,"
(ii) the aggregate purchase price payable hereunder for the Warrant Shares is
referred to as the "Aggregate Warrant Price," (iii) the price payable hereunder
for each of the Warrant Shares is referred to as the "Per Share Warrant Price,"
(iv) this Warrant and all warrants hereafter issued in exchange or substitution
for this Warrant or such other warrants are referred to as the "Warrants" and
(v) the holder of this Warrant is referred to as the "Holder" and the holders of
this Warrant and all other Warrants are referred to as the "Holders."
1. Exercise of Warrant
-------------------
This Warrant may be exercised, in whole at any time or in part from
time to time, prior to the Expiration Date by the Holder by the surrender of
this Warrant to the Company (with the subscription form at the end hereof duly
executed) at the address set forth in Section 10 hereof, together with proper
payment of the Aggregate Warrant Price, or the proportionate part thereof if
this Warrant is exercised in part, and any applicable taxes. Payment for Warrant
Shares shall be made by cashier's check or by wire transfer of funds.
This Warrant may be exercised in part, and the Holder is entitled to
receive a new Warrant covering the Warrant Shares for which this Warrant has not
been exercised. Upon such surrender of this Warrant, the Company will (a) issue
a certificate in the name of the Holder for the number of whole shares of the
Common Stock to which the Holder shall be entitled and, if this Warrant is
exercised in whole, in lieu of any fractional share of the Common Stock to which
the Holder shall be entitled, pay to the Holder cash in an amount equal to the
fair value of such fractional share (determined in such reasonable manner as the
Board of Directors of the Company shall determine), and (b) deliver the other
securities and properties receivable upon the exercise of this Warrant, or the
proportionate part thereof if this Warrant is exercised in part, pursuant to the
provisions of this Warrant. 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 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 at the time of surrender for exercise.
Each exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the business day on which this
Warrant shall have been surrendered to the Company as provided in this Section
1, and at such time, the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such exercise shall be deemed to have become the holder or holders of record
thereof.
2. Reservation of Warrant Shares; Listing; Preservation of Rights
--------------------------------------------------------------
(a) The Company agrees that, prior to the expiration of this Warrant, the
Company will at all times (i) have authorized and in reserve, and will
keep available, solely for issuance or delivery upon the exercise of
this Warrant, the shares of the Common Stock and other securities and
properties as from time to time shall be receivable upon the exercise
of this Warrant, free and clear of all restrictions on sale or transfer
and free and clear of all preemptive or similar contractual rights and
(ii) use its best efforts to keep the Warrant Shares authorized for
quotation on The Nasdaq Stock Market, or on such other national
securities exchange or market upon which the Common Stock is then
listed.
(b) The Company will not, by amendment of its certificate of incorporation
or through any consolidation, merger, reorganization, transfer of
assets, dissolution, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant or the rights represented hereby.
3. Protection Against Certain Dilution
-----------------------------------
(a) In case the Company shall hereafter (i) declare a dividend or make a
distribution on its capital stock in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock into a greater number
of shares, (iii) combine its outstanding shares of Common Stock into
a smaller number of shares or (iv) issue by reclassification of its
Common Stock any shares of capital stock of the Company, the Per Share
Warrant Price and the number and kind of shares of Common Stock
receivable upon exercise of this Warrant in effect at the time of the
record date for such dividend or of the effective date of such
subdivision, combination or reclassification shall be proportionately
adjusted so that the Holder of any Warrant upon the exercise hereof
shall be entitled to receive the number and kind of shares of Common
Stock or other capital stock of the Company which the Holder would
have received had it exercised such Warrant immediately prior
thereto. An adjustment made pursuant to this Section 3(a) shall
become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, combination or
reclassification. If as a result of an adjustment made pursuant to
this Section 3(a), the Holder of any Warrant thereafter surrendered
for exercise shall become entitled to receive shares of two or more
classes of capital stock or shares of Common Stock and other capital
stock of the Company, the Board of Directors (whose determination
shall be conclusive and shall be described in a written notice to
the Holder of any Warrant promptly after such adjustment) shall
determine the allocation of the adjusted Per Share Warrant Price
between or among shares of such classes of capital stock or shares
of Common Stock and other capital stock.
(b) In case the Company after the date hereof (a) shall consolidate with
or merge into any other entity and shall not be the continuing or
surviving corporation of such consolidation or merger, or (b) shall
permit any other entity to consolidate with or merge into the Company
and the Company shall be the continuing or surviving entity but, in
connection with such consolidation or merger, the Common Stock shall be
changed into or exchanged for stock or other securities of any other
entity or cash or any other property, or (c) shall transfer all or
substantially all of its properties or assets to any other entity, or
(d) shall effect a capital reorganization or reclassification of the
Common Stock or other securities of the Company ((a) - (d) being
collectively referred to as "Transactions"), the Holder of this Warrant
shall have the right thereafter to exercise such Warrant for the kind
and amount of securities, cash or other property which the Holder would
have received or have been entitled to receive immediately after such
Transaction had this Warrant been exercised immediately prior to the
effective date of such Transaction and in any such case, if necessary,
appropriate adjustment shall be made in the application of the
provisions set forth in this Section 3 with respect to the rights and
interests thereafter of the Holder of this Warrant to the end that the
provisions set forth in this Section 3 shall thereafter correspondingly
be made applicable, as nearly as may be reasonable, in relation to any
shares of stock or other securities or in relation to any shares of
stock or other securities or property thereafter deliverable on the
exercise of this Warrant. The above provisions of this Section 3(b)
shall similarly apply to successive Transactions. The issuer of any
shares of stock or other securities or property thereafter deliverable
on the exercise of this Warrant shall be responsible for all of the
agreements and obligations of the Company hereunder. Notice of any such
transaction shall be given to the Holders not less than 30 days prior
to said event; provided, however, that issuance of a press release
shall constitute such notice.
(c) Nothing in this Warrant Agreement shall be interpreted to require
adjustment in the Per Share Warrant Price upon issuance of shares under
or grant by the Company of options to employees or directors under any
stock option plan or arrangement of the Company approved by the
shareholders of the Company, or the issuance of any and all shares of
Common Stock upon exercise of such options or upon the issuance of
shares under any options, warrants, or convertible securities.
(d) No adjustment in the Per Share Warrant Price shall be required unless
such adjustment would require an increase or decrease of at least 1% of
the then existing Per Share Warrant Price; provided, however, that any
adjustments which by reason of this Section 3(d) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment; provided further, however, that adjustments shall be
required and made in accordance with the provisions of this Section 3
(other than this Section 3(d)) not later than such time as may be
required in order to preserve the tax-free nature of a distribution to
the Holder of this Warrant or Common Stock issuable upon exercise
hereof. All calculations under this Section 3 shall be made to the
nearest cent or to the nearest share, as the case may be. Anything in
this Section 3 to the contrary notwithstanding, the Company shall be
entitled to make such reductions in the Per Share Warrant Price, in
addition to those required by this Section 3, as it in its discretion
shall deem to be advisable in order that any stock dividend,
subdivision of shares or distribution of rights to purchase stock or
securities convertible or exchangeable for stock hereafter made by the
Company to its shareholders shall not be taxable.
(e) Whenever the Per Share Warrant Price is adjusted as provided in this
Section 3 and upon any modification of the rights of a Holder of
Warrants in accordance with this Section 3, the Company shall prepare
and retain on file a statement setting forth the Per Share Warrant
Price and the number of Warrant Shares after such adjustment or the
effect of such modification, a brief statement of the facts requiring
such adjustment or modification and the manner of computing the same
and cause a copy of such statement to be mailed to the Holders of the
Warrants.
(f) The Company will use reasonable efforts to notify the Holders at least
twenty (20) days prior to (i) any taking by the Company of a record of
the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other
distribution or any right to subscribe for or purchase any shares of
stock or any other securities or (ii) any voluntary or involuntary
dissolution, liquidation or winding-up of the Company. Any such notice
shall include the date or expected date on which any such record is to
be taken for the purpose of such dividend, distribution or right, and
the amount and character of such dividend, distribution or right, and
the date or expected date on which any dissolution, liquidation or
winding-up is to take place and the time, if any such time is to be
fixed, as of which the holders of record of Common Stock shall be
entitled to exchange their shares of Common Stock for the securities or
other property deliverable upon such reorganization, dissolution,
liquidation or winding-up.
4. Rights of Holder as Shareholder
-------------------------------
No holder of this Warrant shall, as such, be entitled to vote, receive
dividends, or otherwise 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 whatsoever, nor shall anything contained herein be
construed to confer upon the holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof or
to give or withhold consent to any corporate action (whether upon any matter
submitted to shareholders 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 shareholders or to receive dividends or subscription rights or
other distributions.
5. Fully Paid Stock
----------------
The Company will take all such actions as may be necessary to assure
that the shares of the Common Stock represented by each and every certificate
for Warrant Shares delivered on the exercise of this Warrant shall, at the time
of such delivery, be validly issued and outstanding, fully paid and
nonassessable, and not subject to preemptive rights, and the Company will take
all such actions as may be necessary to assure that the par value or stated
value, if any, per share of the Common Stock is at all times equal to or less
than the then Per Share Warrant Price.
6. Registration under Securities Act of 1933
-----------------------------------------
(a) Demand Registration. At any time prior to December 30, 2002, upon the
--------------------
request of holders of Warrants or Warrant Shares representing a
majority of the Warrant Shares issuable upon exercise of this Warrant,
the Company agrees that the Company will on two occasions file, under
the 1933 Act a registration statement on Form S-3 or a successor form,
if available, covering resale of the Registrable Securities (as defined
below) issuable upon the exercise of this Warrant (the "Registration
Statement"). If Form S-3 is not available to the Company at the time a
request for registration is made pursuant to this Section 6(a), the
Company will, on one occasion, effect such registration on Form S-1 or
other applicable form. The Company will use its best efforts to cause
the Registration Statement to become effective as of the soonest
practicable date following the date of filing and the Company will (i)
take all other reasonable action necessary under any federal law or
regulation or under the laws of the state of New York to permit all
Registrable Securities to be sold or otherwise disposed of in such
jurisdictions, (ii) prepare and file with the Securities and Exchange
Commission such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith as may be
necessary to keep the Registration Statement effective until the
earlier to occur of (x) the sale of all of the Registrable Securities
purchasable hereunder and (y) 12 consecutive months after the effective
date of such registration statement, and (iii) maintain compliance with
the federal securities laws and regulations. For purposes of this
Section 6, "Registrable Securities" means (a) any Common Stock or other
securities issued or issuable upon exercise of this Warrant and (b) any
securities issued or issuable with respect to any securities referred
to in the foregoing clause by way of share dividend or share split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. As to any
particular Registrable Securities, once issued, such securities shall
cease to be Registrable Securities when (a) a registration statement
with respect to the sale of such securities shall have become effective
under the 1933 Act and such securities shall have been disposed of in
accordance with such registration statement, (b) they shall have been
distributed to the public pursuant to Rule 144 (or any successor
provision) under the 1933 Act, or (c) they shall have ceased to be
outstanding.
(b) Limits on Registration Rights. Notwithstanding any other provision of
------------------------------
this Section 6, the Company shall not be obligated to register any
Warrant Shares if it furnishes the Holder or Holders a written opinion
of counsel to the Company that such Holder or Holders will be able to
sell all the Warrant Shares that such Holder or Holders in good faith
wish(es) to sell during any three-month period pursuant to Rule 144 (or
a comparable successor rule adopted by the Securities and Exchange
Commission).
(c) Furnishing of Prospectus. The Company shall, upon the filing of the
------------------------
Registration Statement furnish to each Holder of any Registrable
Securities (and to each underwriter, if any, of such Registrable
Securities) such number of copies of prospectuses and preliminary
prospectuses in conformity with the requirements of the 1933 Act and
such other documents as such Holder may reasonably request, in order to
facilitate the public sale or other disposition of all or any of the
Registrable Securities; provided, however, that the obligation of the
Company to deliver copies of prospectuses or preliminary prospectuses
to Holder shall be subject to the receipt by the Company of reasonable
assurances from the Holder that the Holder will comply with the
applicable provisions of the 1933 Act and of such other securities or
blue sky laws as may be applicable in connection with any use of such
prospectuses or preliminary prospectuses.
(d) No Demand in Event of Withdrawal of Notice. No right of the Holders
--------------------------------------------
under Section 6(a) shall be deemed to have been exercised if with
respect to such right: (i) the requisite notice given by Holders
pursuant to Section 6(a) is withdrawn prior to the date of filing of a
registration statement or if a registration statement filed by the
Company under the 1933 Act pursuant to Section 6(a) is withdrawn prior
to its effective date, in either case, by written notice to the Company
from Holders to be included or which are included in such registration
statement stating that such Holders have elected not to proceed with
the offering contemplated by such registration statement because (x) a
development in the Company's affairs has occurred or has become known
to such Holders subsequent to the date of the notice by the Holders to
the Company requesting registration of the Registrable Securities or
the filing of such registration statement which, in the judgment of
such Holders or the managing underwriter of the proposed public
offering, materially and adversely affects the market price of such
Registrable Securities or the distribution of such Registrable
Securities or (y) a registration statement filed by the Company
pursuant to Section 6(a), in the reasonable opinion of counsel for such
Holders or the managing underwriter of the proposed public offering,
contains 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 under
which made (other than any such statement or omission relating to such
Holders and based on information supplied or failed to be supplied by
such Holders) and the Company has not, promptly after written notice
thereof, corrected such statement or omission in an amendment to such
registration statement filed; or (ii) a registration statement pursuant
to Section 6(a) shall have become effective under the 1933 Act and less
than eighty-five percent (85%) of the Registrable Securities included
therein shall have been sold as a result of any stop order, injunction
or other order or requirement of the Securities and Exchange Commission
or other governmental agency or court.
(e) Expenses of Offering. The Company shall pay all expenses incurred in
--------------------
connection with any registration or other action pursuant to the
provisions of this Section 6, other than underwriting discounts and
commissions, any legal, accounting, or consulting fees incurred by
Holders and taxes relating to the Registrable Securities.
(f) No Exercise Requirement. Nothing contained in this Agreement shall be
------------------------
construed as requiring a Holder to exercise its Warrants prior to the
initial filing of any registration statement or the effectiveness
thereof.
(g) Notification by Company. The Company shall use reasonable efforts to
------------------------
notify each Holder of Registrable Securities covered by the
Registration Statement, at any time when a prospectus relating thereto
is required to be delivered under the 1933 Act, upon the Company's
discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made, and at the request of any
such Holder promptly prepare and furnish to such Holder and each
underwriter, if any, a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances under which they were made. The Holders shall not
effect sales of Warrant Shares after receipt of such notice from the
Company until an amendment becomes effective or the supplement has been
filed. The Company's obligations under this Section 6(g) shall expire
at such time as the Company is no longer required to maintain the
effectiveness of the Registration Statement.
(h) Compliance with SEC Rules and Regulations. The Company shall otherwise
-----------------------------------------
use its best efforts to comply with all applicable rules and
regulations of the Securities and Exchange Commission and will furnish
to each Holder of Registrable Securities included in any registration
statement at least five (5) business days prior to the filing thereof a
copy of any amendment or supplement to such registration statement or
prospectus and shall not file any amendment or supplement thereof to
which any such Holder shall have reasonably objected on the grounds
that such amendment or supplement does not comply in all material
respects with the requirements of the 1933 Act or the rules or
regulations thereunder.
(i) Deferral Period. If, because of a proposed material acquisition or
----------------
any other material event, (i) the Company would, in the reasonable
opinion of its counsel, be required to disclose material information
which, in the good faith judgment of the Company, would not be in the
best interests of the Company and its shareholders to disclose at that
time or (ii) the filing or effectiveness of a Registration Statement or
of a supplement or amendment to the prospectus pursuant to this Section
6 would impede, delay or interfere with any material financing, offer
or sale of securities, acquisition, corporate reorganization or other
transaction involving the Company or any affiliate of the Company, the
Company may defer such filing or effectiveness for a specified period
of up to 90 days after such filing or effectiveness would otherwise
ordinarily have occurred. The Company may only request deferral
pursuant to this section twice during any calendar year.
(j) Holdback Agreement. The Holder, 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 Warrant or Warrant Shares for a
specified period of time not to exceed 90 days after any underwritten
registration statement pursuant to which the Company proposes to sell
its securities to the public generally has become effective; provided,
however, that all executive officers and directors of the Company enter
into similar agreements. In the event the Company should make such a
request, the 12-month period mentioned in 6(a) shall be extended by a
number of days equal to the actual duration of the holdback period.
7. Indemnification
---------------
(a) Indemnification by the Company. The Company shall indemnify and hold
-------------------------------
harmless each Holder, each of its officers and directors, its legal
counsel, and each person, if any, who controls the Holder within the
meaning of the 1933 Act against any losses, claims, damages,
liabilities (joint or several), or expenses 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, expenses, 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 the Company 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.
The Company shall reimburse each Holder and its officers, directors,
legal counsel or controlling persons 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 the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable to the 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 Holder or such controlling person or (B) in the case
of a sale directly by the Holder (including a sale of such Warrant
Shares through any underwriter retained by the Holder or Holders to
engage in a distribution solely on behalf of the Holder or the
Holders), if such untrue statement or alleged untrue statement or
omission or alleged omission was contained in a preliminary prospectus
and corrected in a final or amended prospectus, and the 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 Holders of Warrant Shares. Each Holder shall
-------------------------------------------------
severally but not jointly indemnify and hold harmless the Company, each
of its officers and directors, its legal counsel, and each person, if
any, who controls the Company within the meaning of the 1933 Act,
against any losses, claims, damages, liabilities (joint or several), or
expenses to which the Company or any such director, officer, legal
counsel, or controlling person 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
Holder expressly for use in connection with such registration; and such
Holder shall reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer, or controlling person in
connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity
agreement contained in this Section 7 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 Holder, which
consent shall not be unreasonably withheld; and provided, further, that
the indemnification obligation of such Holder shall be limited to the
aggregate public offering price of the Warrant Shares sold by such
Holder pursuant to such registration.
(c) Notice, Defense and Counsel. Promptly after receipt by an indemnified
---------------------------
party under this Section 7 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 7, 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 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 7 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 7.
8. Loss etc. of Warrant
--------------------
Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, the Company shall execute and
deliver to the Holder a new Warrant of like date, tenor and denomination.
9. Amendment
---------
These Warrants may be amended only by written mutual agreement of the
Company and the Holders of a majority of the then outstanding Warrants.
10. Communication
-------------
No notice or other communication under this Warrant shall be effective
unless, but any notice or other communication shall be effective and shall be
deemed to have been given if, the same is in writing and is mailed by
first-class mail, postage prepaid, addressed as set forth below:
If to the Company: Agritope, Inc
-----------------
00000 X.X. Xxxxx Xxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Executive Vice President
and Chief Financial Officer
or such other address as the Company has designated in writing to the Holder.
If to the Holder: Vector Securities International, Inc.
----------------
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chairman and Chief Executive Officer
or such other address as the Holder has designated in writing to the Company.
11. Headings
--------
The headings of this Warrant have been inserted as a matter of
convenience and shall not affect the construction hereof.
12. Applicable Law
--------------
This Warrant shall be governed by and construed in accordance with the
laws of the State of Oregon without giving effect to the principles of conflicts
of laws thereof.
13. Assignment
----------
The Holder may assign or transfer this Warrant in whole or in part by
completing and delivering to the Company the applicable document of assignment,
duly executed, in the form attached hereto. Upon any such assignment or
transfer, the term "Holder" shall be deemed to include any such assignee or
transferee of the original Holder.
14. Severability
------------
If one or more provisions of this Warrant are held to be enforceable
under applicable law, such provision shall be excluded from this Warrant and the
balance of the warrant shall be interpreted as if such provisions were so
excluded and the balance shall be enforceable in accordance with its terms.
IN WITNESS WHEREOF, Agritope, Inc. has caused this Warrant to be signed
by its President and Chief Executive Officer on the date stated above.
/S/ Xxxxxx X. Xxxxx, Ph.D.
--------------------------------------------
Name: Xxxxxx X. Xxxxx, Ph.D.
Title: President and Chief Executive Officer
ATTEST:
/S/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx, Executive Vice President,
Chief Financial Officer and Secretary
SUBSCRIPTION
------------
The undersigned, , pursuant to the provisions of the
--------------------
foregoing Warrant, hereby agrees to subscribe for and purchase shares of
-----
the Common Stock of Agritope, Inc. covered by said Warrant, and makes payment
therefor at the price per share provided by said Warrant.
Dated: Signature:
--------------------------- ----------------------------
Address:
------------------------------
ASSIGNMENT
----------
FOR VALUE RECEIVED hereby sells, assigns and transfers unto
--------------------
the foregoing Warrant and all rights evidenced thereby, and
--------------------
does irrevocably constitute and appoint , attorney, to
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transfer said Warrant on the books of Agritope, Inc.
Dated: Signature:
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Address:
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PARTIAL ASSIGNMENT
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FOR VALUE RECEIVED hereby assigns and transfers unto
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the right to purchase shares of the Common Stock of
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Agritope, Inc. by the foregoing Warrant and a proportionate part of said Warrant
and the rights evidenced hereby, and does irrevocably constitute and appoint
, attorney, to transfer that part of said Warrant on the books
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of Agritope, Inc.
Dated: Signature:
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Address:
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