<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 17, 1996
_________________
EPITOPE, INC.
(Exact name of Registrant as specified in charter)
Oregon
(State or other jurisdiction of incorporation)
1-10492
(Commission File No.)
93-0779127
(IRS Employer Identification No.)
8505 S.W. Creekside Place
Beaverton, Oregon 97008
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(503) 641-6115
<PAGE>
Item 5. Other Events.
On September 17, 1996, Epitope, Inc. issued a press release
regarding recent events of interest to shareholders. A copy of the press
release is attached as an exhibit to this report.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits.
The exhibits filed herewith are listed in the exhibit index
following the signature page of this report.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
EPITOPE, INC.
Dated: October 11, 1996 By:
Gilbert N. Miller
Executive Vice President and Chief
Financial Officer
<PAGE>
EXHIBIT INDEX
4.1 Notice to warrantholders and current form of warrant certificate
for warrants issued in September 1991 offering, reflecting
extension of expiration date.
4.2 Notice to warrantholders and current form of warrant certificate
for warrants issued in December 1992 offering, reflecting extension
of expiration date.
4.3 Notice to warrantholders and current form of warrant certificate
for warrants issued in July 1993 offering, reflecting extension of
expiration date.
4.4 Notice to warrantholders and current form of warrant certificate
for warrants issued in August 1993 offering, reflecting extension
of expiration date.
99.1 Press release of Epitope, Inc., dated September 17, 1996.
<PAGE>
<PAGE>
Exhibit 4.1
[Form of Notice -- 1991 Warrants]
NOTICE TO WARRANTHOLDERS
REGARDING
EXTENSION OF EXPIRATION DATE
THE WARRANTS REFERRED TO BELOW AND THE SHARES OF COMMON STOCK UNDERLYING THE
WARRANTS HAVE NOT BEEN REGISTERED FOR ISSUANCE TO THE WARRANTHOLDERS UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED ("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 THE
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.
[Name and Address of Warrantholder]
Reference is made to the warrants ("Warrants") to purchase common
stock, no par value ("Common Stock"), of Epitope, Inc. (the "Company")
originally issued by the Company on September 26, 1991, and the related
Warrant Agreements ("Warrant Agreements") dated as of the same date containing
the terms of the Warrants. Capitalized terms used and not otherwise defined
herein have the same meanings as in the Warrant Agreements.
The Expiration Date for the Warrants is September 25, 1996. The
Company hereby extends the Expiration Date until September 30, 1997, and will
permit all Warrantholders to exercise Warrants through that date.
Please attach a copy of this notice to your Warrant Agreement.
Dated: September ___, 1996.
EPITOPE, INC.
By
---------------------------------
President
<PAGE>
THESE WARRANTS AND THE SHARES OF COMMON STOCK UNDERLYING THESE WARRANTS 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 SECURITIES ACT OF 1933,
AS AMENDED, OF THE UNITED STATES OF AMERICA (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 OF AMERICA 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., PACIFIC TIME, ON SEPTEMBER 30, 1997,
WARRANTS TO PURCHASE COMMON STOCK
[Number of warrants] Warrants
EPITOPE, INC.
THIS CERTIFIES THAT
[Name of warrantholder]
or registered assigns, is the registered holder of the number of Warrants
("Warrants") set forth above. Each Warrant entitles the holder thereof (the
"Warrantholder") to purchase from Epitope, Inc., a corporation incorporated
under the laws of the state of Oregon ("Company"), United States of America,
one fully paid and nonassessable share of common stock, no par value, of the
Company ("Common Stock") upon presentation and surrender of this Warrant
Agreement with the instructions for the registration and delivery of Common
Stock filled in, at any time prior to 5 P.M., Pacific time, on ________ __,
1996, at the corporate offices of the Company at 8505 S.W. Creekside Place,
Beaverton, Oregon 97008, United States of America, or at such other address as
may be specified by the Company pursuant to Section 9, accompanied by payment
of the Exercise Price (as defined herein) and any applicable taxes, either in
cash or by certified or official bank check, payable in lawful money of the
United States of America to the order of the Company.
<PAGE>
Section 1. Exercise Price. Each Warrant entitles the Warrantholder to
purchase one share of Common Stock for U.S. $16.00 (the "Exercise Price"),
subject to adjustment as provided herein.
Section 2. Expiration. All Warrants not theretofore exercised shall
expire at 5 p.m., Pacific time, on September 30, 1997 (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 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 one cent 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 one cent
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, 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
Warrants. 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 the
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 (i) 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 (ii) cause a copy of such statement to be
mailed to the Warrantholder within thirty (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 will 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 closing price on a
national securities exchange on the day immediately prior to
exercise or if the Common Stock or other securities are not traded
on a national securities exchange 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 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, change of par value or change of
stock to no par value, 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.
6.1 Registration Statement. The Company has prepared a
registration statement on Form S-3 (the "Registration Statement")
under the 1933 Act with respect to transfer by the Warrantholder
of the Warrants covered by this Warrant Agreement and the re-sale
by the Warrantholder of the shares of Common Stock issued or
issuable upon exercise of this Warrant Agreement (the "Warrant
Shares"). A soon as practicable after the original issue date of
this Warrant Agreement (the "Original Issue Date"), the Company
shall file the Registration Statement with the United States
Securities and Exchange Commission and shall use its best efforts
to cause the Registration Statement to become effective under the
1933 Act as promptly as practicable after the Original Issue Date.
If required by applicable law, the Company shall furnish to the
initial Warrantholder 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 such Warrantholder may reasonably request in order to
facilitate the disposition of the Warrants and Warrant Shares (the
"Securities") after the Registration Statement has been declared
effective. The Company shall use reasonable efforts (i) to notify
the initial Warrantholder when a prospectus relating to the
Securities is required to be delivered under the 1933 Act, (ii) to
notify the initial Warrantholder 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 the light of the circumstances then existing, (iii)
to promptly file such amendments and supplements as may be
required on account of such event, and (iv) to use its best
efforts to cause each such amendment and supplement to become
effective. The initial Warrantholder shall not effect sales of
the Securities after receipt of notice from the Company that any
such amendment or supplement is required on account of any such
event, until the amendment or supplement becomes effective. The
Company's obligations under this Section 6.1 shall expire five
years after the Original Issue Date or on any earlier date by
which the initial Warrantholder has sold the Securities or on and
after which the initial Warrantholder may sell the Securities
without registration under the 1933 Act.
6.2 Warrantholder Information. It shall be a condition
precedent to the obligations of the Company to take any action
pursuant to this Section 6 that Warrantholder shall furnish to the
Company such information regarding itself, the Securities, and the
intended method of disposition of the Securities as the Company
shall reasonably request.
6.3 Expenses of Registration. The Company shall pay all
expenses (other than underwriting discounts and commissions,
transfer taxes, if any, and fees and disbursements of counsel to
the Warrantholder) incurred in connection with the Registration
Statement.
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 Section 7.4. The Company may deem
and treat the person 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 Section 7.4,
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's
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 Section 7.1 and Section 7.2, the Company shall not
be required to issue a Warrant Agreement for Warrants covering
less than 1,000 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 1,000
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. Lockup 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 Warrant Shares for a specified
period of time (not to exceed 90 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. All notices and other communications given
pursuant to this Warrant Agreement shall be in writing. Notices to the
Company shall be deemed to have been given when received by the Company.
Notices to the Warrantholder shall be deemed to have been given when
personally delivered or, if mailed, upon deposit in the United States mails,
postage prepaid, addressed at the address provided to the Company and set
forth in the Company's registry books. Notices mailed to the Warrantholder
shall be sent via airmail if the Warrantholder's address is outside the United
States. Notices to the Company should be addressed as follows:
Epitope, Inc.
8505 S.W. Creekside Place
Beaverton, Oregon 97008
Attention: Adolph J. Ferro, Ph.D., President and
Chief Executive Officer
With a copy (which shall not constitute notice) to:
Miller, Nash, Wiener, Hager & Carlsen
3500 U. S. Bancorp Tower
111 S.W. Fifth Avenue
Portland, Oregon 97204
Attention: Erich W. Merrill, Jr.
Such addresses for notices may be changed by any party by notice to the other
party pursuant to this Section 9.
Section 10. Amendment. This Warrant Agreement may be amended only by
an instrument in writing signed by the Company and the Warrantholder.
Section 11. Law Governing. This Warrant Agreement shall be construed
and enforced in accordance with and governed by the laws of the state of
<PAGE>
Oregon, United States of America, applicable to contracts to be performed in
such state between residents thereof, without regard to the conflicts of law
provisions of such state.
Dated as of [date]
EPITOPE, INC.
By_____________________
Adolph J. Ferro, Ph.D.
President
Attest:
By____________________
Andrew S. Goldstein
Secretary
<PAGE>
ELECTION TO EXERCISE WARRANT
[NOTE: Unless the Warrant Shares have been registered under the
1933 Act or are exempt from registration thereunder, this Election
to Exercise Warrant must be executed, and the Warrant Shares must
be delivered, outside of the United States of America, its
territories and possessions.]
To: Epitope, Inc.
8505 Creekside Place
Beaverton, Oregon 97008
United States of America
The undersigned hereby exercises the within Warrant Agreement for
________ shares of the Common Stock of Epitope, Inc., and tenders payment
herewith in the amount of U.S. $_________ in accordance with the terms
thereof.
The undersigned hereby certifies that (mark 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, within the meaning
of Regulation S promulgated by the United States Securities
and Exchange Commission pursuant to the Securities Act of
1933 ("1933 Act"), and (iii) it is not exercising Warrants
for the benefit of any U.S. person.
--OR--
___ The securities to be delivered upon exercise of the Warrant
("Warrant Shares") have been registered under the 1933 Act
or are exempt from registration thereunder and Epitope,
Inc., has been provided with a written opinion of counsel to
that effect. [A legal opinion regarding the registration of
the Warrant Shares will be obtained at the expense of
Epitope, 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 Warrant Shares; 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:
____________________________________
____________________________________
____________________________________
_______________________________________
Name and Title:
Dated: ____________, 199_
Warrantholder: _____________________________________
Address: _____________________________________
_____________________________________
_____________________________________
<PAGE>
FORM OF ASSIGNMENT
[NOTE: Unless the Warrants have been registered under the 1933 Act
or are exempt from registration thereunder, this Assignment must
be executed, and the re-issued Warrants must be delivered, outside
of the United States of America, its territories and possessions.]
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
Agreement hereby sells, assigns, and transfers unto the Assignee(s) named
below all of the rights of the undersigned under the 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 1,000 shares of Common Stock.
Dated: ____________, 19___.
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 United States.]
<PAGE>
Exhibit 4.2
[Form of Notice -- 1992 Warrants]
NOTICE TO WARRANTHOLDERS
REGARDING
EXTENSION OF EXPIRATION DATE ("Notice and Agreement")
THE WARRANTS REFERRED TO BELOW AND THE SHARES OF COMMON STOCK UNDERLYING THE
WARRANTS HAVE NOT BEEN REGISTERED FOR ISSUANCE TO THE WARRANTHOLDERS UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED ("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 THE
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.
[Name and Address of Warrantholder]
Reference is made to the warrants ("Warrants") to purchase common
stock, no par value ("Common Stock"), of Epitope, Inc. (the "Company")
originally issued by the Company on December 23, 1992, and the related Warrant
Agreements ("Warrant Agreements") dated as of the same date containing the
terms of the Warrants. Capitalized terms used and not otherwise defined
herein have the same meanings as in the Warrant Agreements.
The Expiration Date for the Warrants, as previously extended, is
September 30, 1996. The Company hereby further extends the Expiration Date
until September 30, 1997, and will permit all Warrantholders to exercise
Warrants through that date. Exercise of the Warrants remains subject to the
following conditions:
(a) The Exercise Price is $18.50; and
(b) Common Stock purchased by Warrantholders pursuant to the
exercise of Warrants may not be sold or otherwise transferred
or disposed of for a period ending 60 days after the date of
purchase of such Common Stock.
Please attach a copy of this notice to your Warrant Agreement.
Dated: September ___, 1996.
EPITOPE, INC.
By
-----------------------------
President
<PAGE>
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
("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.
COMMON STOCK PURCHASED PURSUANT TO THE EXERCISE OF THESE WARRANTS MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED OR DISPOSED OF FOR A PERIOD OF 60 DAYS AFTER THE
DATE OF PURCHASE OF SUCH COMMON STOCK
VOID AFTER 5 P.M., UNITED STATES PACIFIC TIME,
ON SEPTEMBER 30, 1997
OR SUCH EARLIER DATE AS SPECIFIED HEREIN
WARRANTS TO PURCHASE COMMON STOCK
Warrant No. [Number of Warrants] Warrants
EPITOPE, INC.
THIS CERTIFIES THAT
[Name of Warrantholder]
or registered assigns, is the registered holder of the number of Warrants
(each, a "Warrant," and collectively, "Warrants") set forth above. Each
Warrant represented by this certificate for Warrants ("Warrant Agreement")
entitles the registered holder thereof (the "Warrantholder") to purchase from
Epitope, Inc., a corporation incorporated under the laws of the state of
Oregon ("Company"), United States of America ("U.S."), one fully paid and
nonassessable share of common stock, no par value, of the Company ("Common
Stock") upon presentation and surrender of this Warrant Agreement with the
accompanying Election to Exercise Warrants duly completed, at any time prior
to 5 P.M., U.S. Pacific time, on the Expiration Date (as defined in
Section 2), at the corporate offices of the Company at 8505 S.W. Creekside
Place, Beaverton, Oregon 97008, or at such other address as may be specified
by the Company pursuant to Section 9, 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 Warrant
Purchase Agreement ("Purchase Agreement") among the Company and the Investors
described therein dated as of November 25, 1992.
Section 1. Exercise Price. Each Warrant entitles the Warrantholder to
purchase one share of Common Stock for U.S. $18.50 (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 the earlier of the following dates
(the "Expiration Date"): (a) September 30, 1997 and (b) the expiration of 120
days after the first period of 20 consecutive trading days during which period
the average of the high and low sales prices of the Common Stock on the
American Stock Exchange, or any other exchange or national market system on
which the Common Stock is then traded, is at least $30.00.
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. $.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 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, 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
Warrants. 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 thirty (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 closing price on a
national securities exchange on the day immediately prior to
exercise or, if the Common Stock or other securities are not
traded on a national securities exchange 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 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, change of
stock to par value, 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. The Company has prepared a registration
statement on Form S-3 (the "Registration Statement") under the 1933 Act with
respect to transfer by the Warrantholder of the Warrants covered by this
Warrant Agreement and the re-sale by the Warrantholder of the shares of Common
Stock issued or issuable upon exercise of this Warrant Agreement (the "Warrant
Shares"). As soon as practicable after the original issue date of this
Warrant Agreement (the "Original Issue Date"), the Company shall file the
Registration Statement with the U.S. Securities and Exchange Commission and
shall use its best efforts to cause the Registration Statement to become
effective under the 1933 Act as promptly as practicable after the Original
Issue Date as provided for in, and in accordance with, the terms and
conditions of the Purchase Agreement.
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 Section 7.4. 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 Section 7.4
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's
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 Section 7.1 and Section 7.2, the Company shall not
be required to issue a Warrant Agreement for Warrants covering
less than 1,000 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 1,000
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.
7.5 No Transfer of Common Stock for 60 Days. Common Stock
purchased pursuant to the exercise of these Warrants may not be
sold or otherwise transferred or disposed of for a period of 60
days after the date of purchase of such Common Stock.
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 90 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 international courier
service, or by registered mail, airmail postage prepaid, return receipt
requested, to: (a) the Company at 8505 S.W. Creekside Place, Beaverton,
Oregon 97008, U.S.A., Attn: Secretary, with a copy to Miller, Nash, Wiener,
Hager & Carlsen, 3500 U. S. Bancorp Tower, 111 S.W. Fifth Avenue, Portland,
Oregon 97204, U.S.A., Attn: Erich W. Merrill, Jr., 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,
with copies to Michel de Beaumont, American Equities Overseas (U.K.) Ltd., 16
Old Bond Street, London W1X 3DB, United Kingdom, and Jack H. Halperin, Esq.,
361 Silver Court, Woodmere, New York 11598, U.S.A. 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 as provided in the Purchase Agreement.
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 as of [Date]
EPITOPE, INC.
By
-----------------------------------
<PAGE>
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 nondiscretionary 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 rule, 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), 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), 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)(1), 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), 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.
<PAGE>
ELECTION TO EXERCISE WARRANTS
[NOTE: Unless the transaction has been registered under 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: Epitope, Inc.
8505 S.W. Creekside Place
Beaverton, Oregon 97008
U.S.A.
The undersigned hereby exercises Warrants represented by the
within Warrant Agreement for ________ shares of the Common Stock of Epitope,
Inc. ("Warrant Shares"), and tenders payment herewith in the amount of
U.S. $_________ in accordance with the terms thereof.
The undersigned hereby certifies that (mark 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 1 to the within Warrant Agreement and within the
meaning of Regulation S promulgated by the U.S. Securities
and Exchange Commission pursuant to the Securities Act of
1933 ("1933 Act"), and (iii) it is not exercising Warrants
for the benefit of any U.S. person.
--OR--
___ 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 Epitope, Inc., has been provided with a written opinion
of counsel to that effect or has waived the requirement for
an opinion. A legal opinion regarding the registration of
the transaction will be obtained at the expense of Epitope,
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.
THE UNDERSIGNED HEREBY AGREES NOT TO SELL OR OTHERWISE TRANSFER OR
DISPOSE OF THE WARRANT SHARES FOR A PERIOD ENDING 60 DAYS AFTER THE DATE OF
PURCHASE OF THE WARRANT SHARES.
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: ____________, 199_
Warrantholder: _____________________________________
Address: _____________________________________
_____________________________________
_____________________________________
<PAGE>
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 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 1,000 shares of Common Stock.
Dated: ____________, 19___.
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.]
<PAGE>
Exhibit 4.3
[Form of Notice -- 1993 Warrants]
NOTICE TO WARRANTHOLDERS
REGARDING
EXTENSION OF EXPIRATION DATE
THE WARRANTS REFERRED TO BELOW AND THE SHARES OF COMMON STOCK UNDERLYING THE
WARRANTS HAVE NOT BEEN REGISTERED FOR ISSUANCE TO THE WARRANTHOLDERS UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED ("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 THE
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.
[Name and Address of Warrantholder]
Reference is made to the warrants ("Warrants") to purchase common
stock, no par value ("Common Stock"), of Epitope, Inc. (the "Company")
originally issued by the Company on July 23, 1993, and the related Warrant
Agreements ("Warrant Agreements") dated as of the same date containing the
terms of the Warrants. Capitalized terms used and not otherwise defined
herein have the same meanings as in the Warrant Agreements.
The Expiration Date for the Warrants, as previously extended, is
March 31, 1997. The Company hereby further extends the Expiration Date until
September 30, 1997, and will permit all Warrantholders to exercise Warrants
through that date. Exercise of the Warrants remains subject to the condition
that Common Stock purchased by Warrantholders pursuant to the exercise of
Warrants may not be sold or otherwise transferred or disposed of for a period
ending 60 days after the date of purchase of such Common Stock.
Please attach a copy of this notice to your Warrant Agreement.
Dated: September ___, 1996.
EPITOPE, INC.
By
--------------------------------
President
<PAGE>
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
("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.
COMMON STOCK PURCHASED PURSUANT TO THE EXERCISE OF THESE WARRANTS MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED OR DISPOSED OF FOR A PERIOD OF 60 DAYS AFTER THE
DATE OF PURCHASE OF SUCH COMMON STOCK.
VOID AFTER 5 P.M., UNITED STATES PACIFIC TIME,
ON SEPTEMBER 30, 1997
OR SUCH EARLIER DATE AS SPECIFIED HEREIN
WARRANTS TO PURCHASE COMMON STOCK
Warrant No. 93I- [Number of Warrants] Warrants
EPITOPE, INC.
THIS CERTIFIES THAT
[Name of Warrantholder]
or registered assigns, is the registered holder of the number of Warrants
(each, a "Warrant," and collectively, "Warrants") set forth above. Each
Warrant represented by this certificate for Warrants ("Warrant Agreement")
entitles the registered holder thereof (the "Warrantholder") to purchase from
Epitope, Inc., a corporation incorporated under the laws of the state of
Oregon ("Company"), United States of America ("U.S."), one fully paid and
nonassessable share of common stock, no par value, of the Company ("Common
Stock") upon presentation and surrender of this Warrant Agreement with the
accompanying Election to Exercise Warrants duly completed, at any time after
the Common Stock issuable upon exercise of this Warrant has been approved for
listing on the American Stock Exchange upon official notice of issuance, and
prior to 5 P.M., U.S. Pacific time, on the Expiration Date (as defined in
Section 2), at the corporate offices of the Company at 8505 S.W. Creekside
Place, Beaverton, Oregon 97008, or at such other address as may be specified
by the Company pursuant to Section 9, 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 1993 Warrant
Purchase Agreement ("Purchase Agreement") among the Company and the Investors
described therein dated as of July 6, 1993.
Section 1. Exercise Price. Each Warrant entitles the Warrantholder to
purchase one share of Common Stock for U.S. $20.00 (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 the earlier of the following dates
(the "Expiration Date"): (a) September 30, 1997, and (b) the expiration of
120 days after the first period of 20 consecutive trading days during which
period the average of the high and low sales prices of the Common Stock on the
American Stock Exchange, or any other exchange or national market system on
which the Common Stock is then traded, is at least $30.00.
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. $.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 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, 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
Warrants. 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 thirty (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 closing price on a
national securities exchange on the day immediately prior to
exercise or, if the Common Stock or other securities are not
traded on a national securities exchange 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 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, change of
stock to par value, 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. The Company has prepared a registration
statement on Form S-3 (the "Registration Statement") under the 1933 Act with
respect to the resale by the Warrantholder of the Warrants covered by this
Warrant Agreement and of the shares of Common Stock issued or issuable upon
exercise of this Warrant Agreement (the "Warrant Shares"). As soon as
practicable after the original issue date of this Warrant Agreement (the
"Original Issue Date"), the Company shall file the Registration Statement with
the U.S. Securities and Exchange Commission and shall use its best efforts to
cause the Registration Statement to become effective under the 1933 Act as
promptly as practicable after the Original Issue Date as provided for in, and
in accordance with, the terms and conditions of the Purchase Agreement.
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 Section 7.4. 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 Section 7.4
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's
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 Section 7.1 and Section 7.2, the Company shall not
be required to issue a Warrant Agreement for Warrants covering
less than 1,000 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 1,000
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.
7.5 No Transfer of Common Stock for 60 Days. Common Stock
purchased pursuant to the exercise of these Warrants may not be
sold or otherwise transferred or disposed of for a period of 60
days after the date of purchase of such Common Stock.
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 90 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 international courier
service, or by registered mail, airmail postage prepaid, return receipt
requested, to: (a) the Company at 8505 S.W. Creekside Place, Beaverton,
Oregon 97008, U.S.A., Attn: Secretary, with a copy to Miller, Nash, Wiener,
Hager & Carlsen, 3500 U. S. Bancorp Tower, 111 S.W. Fifth Avenue, Portland,
Oregon 97204, U.S.A., Attn: Erich W. Merrill, Jr., 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,
with copies to Michel de Beaumont, American Equities Overseas (U.K.) Ltd., 16
Old Bond Street, London W1X 3DB, United Kingdom, and Jack H. Halperin, Esq.,
361 Silver Court, Woodmere, New York 11598, U.S.A. Any notice, request or
other communication (other than an Election to Exercise Warrants) given by
registered airmail shall be deemed given ten 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 as provided in the Purchase Agreement.
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 as of [Date]
EPITOPE, INC.
By
-------------------------------------
<PAGE>
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 nondiscretionary 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 rule, 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), 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), 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)(1), 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), 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.
<PAGE>
ELECTION TO EXERCISE WARRANTS
[NOTE: Unless the transaction has been registered under 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: Epitope, Inc.
8505 S.W. Creekside Place
Beaverton, Oregon 97008
U.S.A.
The undersigned hereby exercises Warrants represented by the within
Warrant Agreement for ________ shares of the Common Stock of Epitope, Inc.
("Warrant Shares"), and tenders payment herewith in the amount of
U.S. $_________ in accordance with the terms thereof.
The undersigned hereby certifies that (mark 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 1
to the within Warrant Agreement and within the meaning of
Regulation S promulgated by the U.S. Securities and Exchange
Commission pursuant to the Securities Act of 1933 ("1933 Act"),
and (iii) it is not exercising Warrants for the benefit of any
U.S. person.
--OR--
___ 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 Epitope, Inc., has been
provided with a written opinion of counsel to that effect or has
waived the requirement for an opinion. A legal opinion regarding
the registration of the transaction will be obtained at the
expense of Epitope, 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.
THE UNDERSIGNED HEREBY AGREES NOT TO SELL OR OTHERWISE TRANSFER OR
DISPOSE OF THE WARRANT SHARES FOR A PERIOD ENDING 60 DAYS AFTER THE DATE OF
PURCHASE OF THE WARRANT SHARES.
Please deliver the certificate and a new Warrant Agreement for the
unexercised Warrants, if any, to:
____________________________________
____________________________________
____________________________________
Warrantholder:__________________________
By___________________________________
Title:
Dated: ____________, 199_
[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.]
Warrantholder: _____________________________________
Address: _____________________________________
_____________________________________
_____________________________________
<PAGE>
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 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 1,000 shares of Common Stock.
Dated: ____________, 19___.
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.]
<PAGE>
<PAGE>
Exhibit 4.4
[Form of Notice -- Technology Transfer Warrants]
NOTICE TO WARRANTHOLDERS
REGARDING
EXTENSION OF EXPIRATION DATE
THE WARRANTS REFERRED TO BELOW AND THE SHARES OF COMMON STOCK UNDERLYING THE
WARRANTS HAVE NOT BEEN REGISTERED FOR ISSUANCE TO THE WARRANTHOLDERS UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("1933 ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED, OR OTHERWISE TRANSFERRED AND THE WARRANTS MAY NOT BE EXERCISED UNLESS
THE TRANSACTION IS REGISTERED UNDER THE 1933 ACT AND APPLICABLE STATE
SECURITIES LAWS OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND THE
ISSUER IS FURNISHED A SATISFACTORY OPINION OF COUNSEL THAT SUCH REGISTRATION
IS NOT REQUIRED.
[Name and Address of Warrantholder]
Reference is made to the warrants ("Warrants") to purchase common
stock, no par value ("Common Stock"), of Epitope, Inc. (the "Company")
originally issued by the Company on August 1, 1993, and the related Warrant
Agreements ("Warrant Agreements") dated as of the same date containing the
terms of the Warrants. Capitalized terms used and not otherwise defined
herein have the same meanings as in the Warrant Agreements.
The Expiration Date for the Warrants, as previously extended, is
March 31, 1997. The Company hereby further extends the Expiration Date until
September 30, 1997, and will permit all Warrantholders to exercise Warrants
through that date. Exercise of the Warrants remains subject to the following
conditions:
(a) The Exercise Price is $15.50 (the Warrantholders will
continue to be obligated to pay the Cash Purchase
Consideration in addition to the Exercise Price); and
(b) Common Stock purchased by Warrantholders pursuant to the
exercise of Warrants may not be sold or otherwise transferred
or disposed of for a period ending 60 days after the date of
purchase of such Common Stock.
Please attach a copy of this notice to your Warrant Agreement.
Dated: September ___, 1996.
EPITOPE, INC.
By
President
<PAGE>
THESE WARRANTS AND THE SHARES OF COMMON STOCK UNDERLYING THESE WARRANTS HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("1933 ACT"),
AND MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED UNLESS THEY
ARE REGISTERED UNDER THE 1933 ACT AND APPLICABLE STATE SECURITIES LAWS OR
UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND THE ISSUER IS FURNISHED
A SATISFACTORY OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
COMMON STOCK PURCHASED PURSUANT TO THE EXERCISE OF THESE WARRANTS MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED OR DISPOSED OF FOR A PERIOD OF 60 DAYS AFTER THE
DATE OF PURCHASE OF SUCH COMMON STOCK.
VOID AFTER 5 P.M., UNITED STATES PACIFIC TIME,
ON SEPTEMBER 30, 1997
OR SUCH EARLIER DATE AS SPECIFIED HEREIN
WARRANTS TO PURCHASE COMMON STOCK
Warrant No.
[Number of Warrants] Warrants
EPITOPE, INC.
THIS CERTIFIES THAT
[Name of Warrantholder]
or registered assigns is the registered holder of the number of Warrants
(each, a "Warrant," and collectively, "Warrants") set forth above. Each
Warrant represented by this certificate for Warrants ("Warrant Agreement")
entitles the registered holder thereof (the "Warrantholder") to purchase from
Epitope, Inc., a corporation incorporated under the laws of the state of
Oregon ("Company"), United States of America ("U.S."), one fully paid and
nonassessable share of common stock, no par value, of the Company ("Common
Stock") upon presentation and surrender of this Warrant Agreement with the
accompanying Election to Exercise Warrants duly completed, at any time prior
to 5 P.M., U.S. Pacific time, on the Expiration Date (as defined in
Section 2), at the corporate offices of the Company at 8505 S.W. Creekside
Place, Beaverton, Oregon 97008, or at such other address as may be specified
by the Company pursuant to Section 9, accompanied by payment of the Cash
Purchase Consideration and 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 1993 Technology Transfer Warrant Issuance Agreement
("Issuance Agreement") among the Company and the Investors described therein
dated as of June 15, 1993.
Section 1. Cash Purchase Consideration and Exercise Price. Upon payment
by the Warrantholder to the Company of U.S. $3.00 for each Warrant desired to
be exercised (the "Cash Purchase Consideration"), each Warrant entitles the
Warrantholder to purchase one share of Common Stock for U.S. $15.50 (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 the earlier of the following dates
(the "Expiration Date"): (a) September 30, 1997, and (b) the expiration of
120 days after the first period of 20 consecutive trading days during which
period the average of the high and low sales prices of the Common Stock on the
American Stock Exchange, or any other exchange or national market system on
which the Common Stock is then traded, is at least $30.00.
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. $.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 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, 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 Warrants. 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 thirty (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 closing price on a national securities exchange on
the day immediately prior to exercise or, if the Common Stock or other
securities are not traded on a national securities exchange 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 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, change of
stock to par value, 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. The Company has prepared a registration
statement on Form S-3 (the "Registration Statement") under the 1933 Act with
respect to the resale by the Warrantholder of the shares of Common Stock
issued or issuable upon exercise of this Warrant Agreement (the "Warrant
Shares"). As soon as practicable after the original issue date of this
Warrant Agreement (the "Original Issue Date"), the Company shall file the
Registration Statement with the U.S. Securities and Exchange Commission and
shall use its best efforts to cause the Registration Statement to become
effective under the 1933 Act as promptly as practicable after the Original
Issue Date as provided for in, and in accordance with, the terms and
conditions of the Issuance Agreement.
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 Section 7.4. 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 Section 7.4 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's 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 Section 7.1 and Section 7.2, the Company shall not be
required to issue a Warrant Agreement for Warrants covering less than
1,000 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 1,000 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.
7.5 No Transfer of Common Stock for 60 Days. Common Stock purchased
pursuant to the exercise of these Warrants may not be sold or otherwise
transferred or disposed of for a period of 60 days after the date of
purchase of such Common Stock.
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 90 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 or by certified mail, postage prepaid,
return receipt requested, to: (a) the Company at 8505 S.W. Creekside Place,
Beaverton, Oregon 97008, Attn: Secretary, with a copy to Miller, Nash, Wiener,
Hager & Carlsen, 3500 U.S. Bancorp Tower, 111 S.W. Fifth Avenue, Portland,
Oregon 97204-3699, Attn: Erich W. Merrill, Jr. and (b) to the Warrantholders
at the addresses set forth in the registry books of the Company referred to in
Section 7.1. Any notice, request, or other communication given by certified
mail shall be deemed given 10 days after the mailing date; notices, requests,
or other communications given in any other manner 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 as provided in the Issuance Agreement.
Section 11. 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 as of [Date]
EPITOPE, INC.
By
<PAGE>
ELECTION TO EXERCISE WARRANT
To: Epitope, Inc.
8505 S.W. Creekside Place
Beaverton, Oregon 97008
The undersigned hereby exercises the within Warrant Agreement for
________ shares of the Common Stock of Epitope, Inc. ("Warrant Shares"), and
tenders payment herewith in the amount of U.S. $_________ in accordance with
the terms thereof.
THE UNDERSIGNED HEREBY AGREES NOT TO SELL OR OTHERWISE TRANSFER OR
DISPOSE OF THE WARRANT SHARES FOR A PERIOD ENDING 60 DAYS AFTER THE DATE OF
PURCHASE OF THE WARRANT SHARES.
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 United States.]
Dated: ____________, 199__.
Warrantholder: _____________________________________
Address: _____________________________________
_____________________________________
_____________________________________
<PAGE>
FORM OF ASSIGNMENT
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 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 1,000 shares of Common Stock.
The undersigned agrees to furnish to the Company upon request a
satisfactory opinion of counsel to the effect that the transfer requested
above is exempt from the Securities Act of 1933, as amended, and applicable
state securities laws.
Dated: ______________, 19___.
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 United States.]
<PAGE>
Exhibit 99.1
FOR IMMEDIATE RELEASE Contact: Mary Hagen
Gus Allen
(503)641-6115
Epitope Reports on Recent Milestones
Beaverton, OR, September 17, 1996: Epitope, Inc. (AMEX:EPT) today announced
recent events of interest to shareholders.
...Sales growth continues for oral specimen collection device
The June 1996 FDA approval of the company's OraSure(R) Western blot HIV
confirmatory test for use with oral specimens, coupled with FDA clearance of
two blood-based home collection HIV test systems, has stimulated demand for
Epitope's oral specimen collection device. Revenues from shipments of the
device in the fourth quarter of fiscal 1996, which ends on September 30, are
expected to exceed $1.4 million. This volume is more than double the amount
shipped in the previous quarter. To broaden market awareness, Epitope
recently hired three market development managers who will operate from New
York, Illinois and North Carolina. The newly appointed managers will focus on
promoting use of the EpiScreen(TM) oral specimen HIV-1 testing system by the
life insurance industry.
...Progress continues toward approval of over-the counter format of OraSure
device
The company continues to make progress toward FDA approval of an over-the-
counter format of its OraSure(R) oral specimen collection device. Upon
approval, Epitope will manufacture the devices for over-the-counter marketing
in the U.S. by SmithKline Beecham. Consumers will collect their own oral
samples with the OraSure device, mail the samples to a clinical laboratory for
HIV testing and call a toll-free number to get their results from a trained
counselor employed by American Social Health Association, the most experienced
AIDS counseling organization in the U.S.
...SmithKline Beecham launches OraSure HIV testing system to U.S. professional
market
On August 5, SmithKline Beecham Consumer Healthcare (SB), introduced Epitope's
OraSure HIV-1 testing system in U.S. professional markets. The product is now
being offered to physicians and other medical professionals by over 3,300
sales representatives. This marketing effort is supported by an advertising
campaign featuring two-page spreads in prominent medical journals such as The
New England Journal of Medicine and Annals of Internal Medicine. SB has also
introduced an information phone service, placed informational materials on the
Internet and created a Physicians Referral Network for consumers to identify
doctors in their area who offer confidential HIV testing.
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Epitope/2
...SmithKline Beecham commences marketing Orasure for HIV testing in selected
foreign markets
SB has commenced marketing the OraSure oral specimen collection device for use
in HIV detection to professional markets in the European Economic Community,
the United Arab Emirates, four countries in Latin America, and a group of
countries in Central Africa. Initial shipments to SB for those markets
occurred in July and August.
...Vinifera, Inc recapitalized; becomes majority owned subsidiary
In August, Epitope's agricultural biotechnology unit, Agritope, Inc., agreed
to cancel the remaining obligations under a June 1995 agreement to sell its
Vinifera, Inc., grape plant nursery business to VF Holdings, Inc. ("VF"), an
affiliate of a Swiss investment group. Agritope will dismiss litigation
against VF and its principals in exchange for retaining $830,000 paid by VF
toward obligations under the agreement and issuing 200,000 shares of Series A
Preferred Stock of Vinifera. Subsequent to the settlement, several private
investors acquired, for $1.3 million, 980,000 shares of Vinifera Series A
Preferred Stock. As a result of these transactions, Agritope now owns 76.6%
of Vinifera.
...Minnesota fresh flower venture formed
In June 1996, an Agritope subsidiary, Agrimax Floral Products, Inc.,
contributed inventory and other operating assets of its St. Paul, Minnesota
fresh flower processing facility to Petals, USA, Inc., a newly formed
affiliate of a profitable Canadian fresh flower wholesaler, in return for a
19.5% equity interest in the company. In addition to its interest in the
Minnesota venture, Agrimax holds a 9% equity interest in Tampa, Florida-based
U A F, L.P.
...Agritope to develop improved melon varieties in collaboration with
international seed companies
Using proprietary seed varieties supplied by a French seed company, Clause,
S.A., and its U.S. affiliate, Harris Moran Seed Company, Agritope plans to
utilize its patented ethylene control gene to develop commercial varieties of
melons with controlled ripening and increased post-harvest product life. The
collaboration is a first step towards the potential formation of a joint
venture with producers and marketers for commercialization of melons.
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Epitope/3
...Warrant maturities extended
Epitope has notified holders of warrants to purchase approximately 2 million
shares of the company's common stock that it will extend the deadline to
exercise such warrants to September 30, 1997. The warrants, which are
exercisable at prices ranging from $16 to $20 per share, were previously set
to expire in September 1996 or March 1997. If all of the extended warrants
were exercised, Epitope would realize additional proceeds of over $35 million.
The company has realized over $33 million in proceeds from the exercise of
warrants in the past four years.
Epitope, Inc. is a biotechnology company that develops and markets medical
diagnostic products and, through its agricultural unit, superior new plant
varieties.
This release includes forward-looking statements which are subject to factors
described in Epitope's Annual Report on Form 10-K for the year ended
September 30, 1995, and other documents filed with the Securities and Exchange
Commission. These factors include unexpected interruption of supply or
manufacturing operations, changes in its marketing partners' strategy or
emphasis, development of competing products, market acceptance of oral
testing, changes in insurance industry practices, unexpected delays in
obtaining state approvals, changes in federal or state law or regulations, and
changes in Epitope's business strategy.
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