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
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
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: _____________________________________
_____________________________________
_____________________________________
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.]