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
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
-------------------------------------
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.
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: _____________________________________
_____________________________________
_____________________________________
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.]