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 -----------------, 2000
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 Oregon (the
"Company"), United States of America ("U.S."), one fully paid and nonassessable
share of common stock, no par value, 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 this Warrant has been
approved for trading on the National Association of Securities Dealers, Inc.
Automated Quotation System ("Nasdaq") 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 ▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as
1
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 the order of the Company. These Warrants are issued pursuant to
a Placement Agent Agreement between the Company and American Equities Overseas
Inc. dated as of October ----, 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 ------------------, 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 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
2
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, 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 Shareholder. No holder of this
Warrant Agreement shall, as such, be entitled to vote, receive dividends, or be
deemed the holder of
3
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 confer upon the holder of this Warrant
Agreement, 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 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.
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
4
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.
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. 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
5
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 international courier service,
or by registered mail, airmail postage prepaid, return receipt requested, to:
(a) the Company at ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, U.S.A.,
Attn: Secretary, with a copy to Tonkon, ▇▇▇▇, ▇▇▇▇▇, Marmaduke & Booth, 1600
Pioneer Tower, ▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, U.S.A., Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇., 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 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇,
American Equities Overseas (U.K.) Ltd., ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 Oregon, without giving
effect to choice of laws principles thereof.
Dated:-----------------, 1997.
AGRITOPE, INC.
By---------------------------------------
Title------------------------------------
6
The undersigned Warrantholder agrees to be bound by the terms
hereof.
-----------------------------------------
By---------------------------------------
Title------------------------------------
7
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."
1
(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.
2
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.
▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
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 (▇▇▇▇ 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 after the effective date 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 50,000 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.]
