EXHIBIT 4.6
WARRANT AGREEMENT
PERARDUA CORPORATION, a Delaware corporation (the "Company"), and
AMERICAN SECURITIES TRANSFER & TRUST, INC. (the "Warrant Agent"), a Colorado
corporation, agree as follows:
1. PURPOSE. The Company proposes to publicly offer and issue an
aggregate of 1,000,000 Redeemable Warrants (the "Redeemable Warrants").
2. REDEEMABLE WARRANTS. Each Redeemable Warrant will entitle the
registered holder thereof (the "Warrant Holder") to purchase from the Company
one share of the Company's Common Stock, $.01 par value per share ("Common
Stock") at an exercise price of $6.50 per share (the "Exercise Price").
3. EXERCISE PERIOD. Subject to Section 5, the Redeemable Warrants may
be exercised on any date at any time during the period commencing
__________________, 1998 (the "Commencement Date") and ending at 5:00 p.m. New
York time on _________, 2002 (the "Expiration Date"), except as altered by
Section 13 of this Agreement. If the Expiration Date shall be a holiday or a day
on which banks are authorized to close in the State of New York, the term
"Expiration Date" shall mean 5:00 p.m. New York time on the next following day
which is not a holiday or a day on which banks are authorized to close in the
State of New York. Following the Expiration Date, all unexercised Redeemable
Warrants will be void and all rights of Warrant Holders shall cease.
4. DETACHABILITY. The Redeemable Warrants shall trade separately from
shares of the Company's Common Stock in the marketplace.
5. REDEMPTION OF REDEEMABLE WARRANTS.
a. REDEMPTION; REDEMPTION PRICE. Commencing _________, 1998,
the Company may from time to time redeem the Redeemable Warrants, in whole or in
part, at $.20 per Redeemable Warrant (the "Redemption Price") upon 30 days'
written notice, provided that the average closing bid price of the Company's
Common Stock equals or exceeds $9.00 per share for a twenty consecutive trading
day period ending within 10 days prior to the Company issuing its notice of
redemption ("Notice of Redemption"). For the purposes of this Agreement, the
term "closing bid price" shall mean the closing bid price of the Company's
Common Stock, as quoted on the Nasdaq SmallCap Market. If the Company's Common
Stock is no longer quoted on the Nasdaq SmallCap Market, the "closing bid price"
shall mean the average of the high bid and low ask price for the Redeemable
Warrants on any inter-dealer quotation system used in connection with the
trading of the Redeemable Warrants at the time of redemption. If the Company
shall determine to redeem less than all of the outstanding Redeemable Warrants,
the Warrant Agent shall determine the Redeemable Warrants to be redeemed by such
manner or method as it shall deem fair and appropriate, either by lot or pro
rata among all Warrant Holders.
b. NOTICE OF REDEMPTION. In order to enable the Warrant Agent
to provide services in accordance with the terms of this Agreement, the Company
shall provide 10 days prior written notice to the Warrant Agent of any
anticipated redemption. Upon notice from the Company, Warrant Agent shall
deliver the Notice of Redemption to all Warrant Holders to be redeemed at least
30 days prior to the date established for redemption (the "Redemption Date").
Each Notice of Redemption shall (a) specify the Redemption Date and the
Redemption Price; (b) state that payment of the Redemption Price will be made by
the Warrant Agent upon presentation and surrender to the Warrant Agent at its
principal office of the Warrant Certificates (as defined herein) representing
the Redeemable Warrants to be redeemed by the Company; (c) state that the rights
to exercise the Redeemable Warrants shall terminate at 5:00 p.m. New York time
on the fifth business day preceding the Redemption Date; and (d) if less than
all of the Redeemable Warrants then outstanding are to be redeemed, specify the
serial numbers or portions of the Redeemable Warrants to be redeemed by the
Company.
c. PAYMENT OF REDEMPTION PRICE. On or prior to the opening of
business on the Redemption Date, the Company will deposit with the Warrant Agent
cash, or an irrevocable letter or credit issued by a national or state bank and
in a form reasonably satisfactory to the Warrant Agent, sufficient in amount to
redeem all of the Redeemable Warrants stated in the Notice of Redemption.
Payment of the Redemption Price shall be made by the Warrant Agent upon
presentation and surrender of the Warrant Certificates representing the
Redeemable Warrants to be redeemed to the Warrant Agent at its principal office.
If the Notice of Redemption shall have been duly given and if the Company shall
have duly deposited with the Warrant Agent the cash or irrevocable letter of
credit required by this Section 5c, any Redeemable Warrants subject to such
Notice of Redemption not exercised by 5:00 p.m. New York time on the Redemption
Date shall no longer be deemed to be outstanding, and all rights with respect to
such Redeemable Warrants shall from and after such time and date cease and
terminate. Notwithstanding the foregoing, however, the Warrant Holders shall
retain the right to receive the Redemption Price, without interest.
6. CERTIFICATES. The Redeemable Warrants shall be in registered form
only and shall be evidenced by a warrant certificate (the "Warrant Certificate")
substantially in the form set forth as Exhibit A hereto. Warrant Certificates
shall be signed by, or shall bear the facsimile signature of, the President or a
Vice President of the Company and the Secretary or an Assistant Secretary of the
Company and shall bear a facsimile of the Company's corporate seal. If any
person, whose facsimile signature has been placed upon any Warrant Certificate
as the signature of an officer of the Company, shall have ceased to be such
officer before such Warrant Certificate is countersigned, issued and delivered,
such Warrant Certificate shall be countersigned, issued and delivered with the
same effect as if such person had not ceased to be such officer. Any Warrant
Certificate may be signed by, or made to bear the facsimile signature of, any
person who at the actual date of the preparation of such Warrant Certificate
shall be a proper officer of the Company to sign such Warrant Certificate, even
though such person was not such an officer upon the date of this Agreement.
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7. COUNTERSIGNING. Warrant Certificates shall be manually countersigned
by the Warrant Agent and shall not be valid for any purpose unless so
countersigned. The Warrant Agent is hereby authorized to countersign any Warrant
Certificate which is properly issued and to deliver such Warrant Certificate in
accordance with the instructions of the appropriate Warrant Holder.
8. REGISTRATION OF TRANSFER AND EXCHANGES.
a. Warrant Certificates may be exchanged for other Warrant
Certificates representing an equal aggregate number of Redeemable Warrants or
may be transferred in whole or in part. The Warrant Agent shall, from time to
time, register the transfer of outstanding Warrant Certificates upon records
maintained by the Warrant Agent for such purpose upon surrender of a Warrant
Certificate to the Warrant Agent for transfer, accompanied by appropriate
instruments of transfer in a form satisfactory to the Company and the Warrant
Agent. Upon any such registration of transfer, the Warrant Agent shall issue a
new Warrant Certificate in the name of and to the transferee. The Warrant Agent
shall then cancel the surrendered Warrant Certificate.
9. EXERCISE OF THE REDEEMABLE WARRANTS.
a. Any Redeemable Warrant evidenced by a Warrant Certificate
may be exercised on or after the Commencement Date and on or before the
Expiration Date. A Warrant Holder may exercise a Redeemable Warrant by (i)
surrendering the Warrant Certificate to the Warrant Agent with the exercise form
on the reverse of such Warrant Certificate fully completed and (ii) delivering
the Exercise Price for each share of Common Stock to be purchased to the Warrant
Agent by a cashier's check or certified funds payable to the order of the
Company.
b. Upon receipt of a Warrant Certificate with the exercise
form thereon duly executed and full payment of the Exercise Price, the Warrant
Agent shall requisition the appropriate number of shares of Common Stock from
the Company's transfer agent, and upon receipt thereof shall deliver
certificates evidencing the total number of shares of Common Stock for which
Redeemable Warrants are then being exercised in such names and denominations as
are required for delivery to, or in accordance with the instructions of, the
Warrant Holder. The certificates for the shares of Common Stock shall be deemed
to be issued, and the person for whom the shares of Common Stock are issued
shall be deemed to have become a holder of record of such shares, as of the date
of the surrender of the Warrant Certificate and payment of the Exercise Price,
whichever shall last occur.
c. If less than all the Redeemable Warrants evidenced by a
Warrant Certificate are exercised upon a single occasion, the Warrant Agent
shall issue a new Warrant Certificate to the Warrant Holder for the balance of
the Redeemable Warrants not so exercised. The Warrant Agent shall deliver the
Warrant Certificate to, or in accordance with the transfer instructions properly
given by, the Warrant Holder prior the Expiration Date.
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d. The Warrant Agent shall cancel all Warrant Certificates
surrendered upon exercise of the Redeemable Warrants.
e. Upon the exercise of a Redeemable Warrant, the Warrant
Agent shall promptly deposit the payment of the Exercise Price into an escrow
account established by mutual agreement of the Company and the Warrant Agent at
a federally insured commercial bank. All funds deposited in the escrow account
will be disbursed on a weekly basis to the Company once they have been
determined by the Warrant Agent to be collected funds. Once the Warrant Agent
has determined the funds to be collected, the Warrant Agent shall cause the
Common Stock certificate(s) representing the exercised Redeemable Warrants to be
issued to an exercising Warrant Holder.
f. Reasonable expenses incurred by the Warrant Agent will be
paid by the Company. These expenses, including delivery of Common Stock
certificates to the Company's shareholders, will be deducted from the Exercise
Price submitted by an exercising Warrant Holder prior to distribution of such
funds to the Company. A detailed accounting statement relating to the number of
shares of Common Stock issued, names of registered Warrant Holders and the net
amount of exercised funds remitted will be given to the Company with the payment
of each Exercise Price.
g. At the time of the exercise of the Redeemable Warrants, the
Company shall pay the transfer fee associated with the exercise. The Warrant
Agent's fee schedule is attached as Exhibit B hereto.
h. The Company covenants that if any securities to be reserved
for the purpose of exercise of the Redeemable Warrants hereunder require
registration with, or approval of, any governmental authority under any federal
securities law before such securities may be validly issued or delivered upon
such exercise, the Company will file a registration statement under the federal
securities laws or a post-effective amendment, use its best efforts to cause the
same to become effective and use its best efforts to keep such registration
statement current while any of the Redeemable Warrants are outstanding. In
addition, the Company shall deliver a prospectus which complies with Section 10
of the Securities Act of 1933, as amended, to the Warrant Holder exercising the
Redeemable Warrant (except, if in the opinion of counsel to the Company, such
registration is not required under the federal securities laws or if the Company
receives a no-action letter from the staff of the Securities and Exchange
Commission stating that the staff would not recommend any enforcement action if
registration is not effected). The Company will use its best efforts to obtain
appropriate approvals or registrations under state "blue sky" securities laws,
if applicable. With respect to any such securities, however, Redeemable Warrants
may not be exercised by, or shares of Common Stock issued to, any Warrant Holder
in any state in which such exercise would be unlawful.
10. TAXES. The Company will pay all taxes attributable to the initial
issuance of the shares of Common Stock upon exercise of the Redeemable Warrants.
The Company shall not, however, be required to pay any tax which may be payable
in respect to any transfer involved
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in the issuance of Warrant Certificates or in the issuance of any certificates
of shares of Common Stock in the name other than that of the Warrant Holder upon
the exercise of a Redeemable Warrant.
11. MUTILATED OR MISSING WARRANT CERTIFICATES. If any Warrant
Certificate is mutilated, lost, stolen or destroyed, the Company and the Warrant
Agent may, on such terms as to indemnity or otherwise as they may in their sole
discretion impose (which shall, in the case of a mutilated Warrant Certificate,
include the surrender thereof), and upon receipt of evidence satisfactory to the
Company and the Warrant Agent of such mutilation, loss, theft or destruction,
issue a substitute Warrant Certificate of like denomination or tenor as the
Warrant Certificate so mutilated, lost, stolen or destroyed. Applicants for
substitute Warrant Certificates shall comply with such other reasonable
regulations and pay any reasonable charges the Company or the Warrant Agent may
prescribe.
12. RESERVATION OF SHARES. For the purpose of enabling the Company to
satisfy all obligations to issue shares of Common Stock upon exercise of the
Redeemable Warrants, the Company will at all times reserve and keep available
free from preemptive rights, out of the aggregate of its authorized but unissued
shares of Common Stock, the full number of shares which may be issued upon the
exercise of the Redeemable Warrants. These shares will, upon issue in accordance
herewith, be fully paid and nonassessable by the Company and free from all
taxes, liens, charges and security interests with respect to the issuance
thereof.
13. GOVERNMENTAL RESTRICTIONS. If any shares of Common Stock issuable
upon the exercise of the Redeemable Warrants require registration or approval of
any governmental authority, the Company will endeavor to secure such
registration or approval; provided that in no event shall the shares be issued,
and the Company shall have the authority to suspend the exercise of all
Redeemable Warrants, until such registration or approval shall have been
obtained. All Redeemable Warrants, the exercise of which is requested during any
such suspension, shall be exercisable at the Exercise Price. If any such period
of suspension continues past the Expiration Date, all Redeemable Warrants, the
exercise of which have been requested on or prior to the Expiration Date, shall
be exercisable upon the removal of such suspension until the close of business
on the business day immediately following the expiration of such suspension.
14. ADJUSTMENTS. If, prior to the exercise of any Redeemable Warrants,
the Company shall have effected one or more stock splits, stock dividends or
other increases or reductions of the number of shares of Common Stock
outstanding without receiving compensation therefor in money, services or
property, the number of shares of Common Stock subject to the Redeemable
Warrants granted shall (i) if a net increase shall have been effected in the
number of outstanding shares of Common Stock, be proportionately increased, and
the cash consideration payable per share shall be proportionately reduced, or
(ii) if a net reduction shall have been effected in the number of outstanding
shares of Common Stock, be proportionately reduced and the cash consideration
payable per share be proportionately increased.
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15. NOTICE TO WARRANT HOLDERS. Upon any adjustment as described in
Section 14, the Company shall, within 20 days thereafter (i) cause to be filed
with the Warrant Agent a certificate signed by a Company officer setting forth
the details of such adjustment, the method of calculation and the facts upon
which such calculation is based, which certificate shall be conclusive evidence
of the correctness of the matters set forth therein, and (ii) cause written
notice of such adjustments to be given to each Warrant Holder as of the record
date applicable to such adjustment. Also, if the Company proposes to enter into
any reorganization, reclassification, sale of substantially all of its assets,
consolidation, merger, dissolution, liquidation or winding up, the Company shall
give notice of such fact to all Warrant Holders at least 20 days prior to such
action, and such notice shall set forth sufficient factual information necessary
to indicate the effect of such action (to the extent such effect may be known at
the date of such notice) on the Exercise Price and the kind and amount of the
shares of Common Stock deliverable upon exercise of the Redeemable Warrants.
Without limiting the obligation of the Company hereunder to provide notice to
each Warrant Holder, failure of the Company to give notice shall not invalidate
any corporate action taken by the Company.
16. NO FRACTIONAL WARRANTS OR SHARES. The Company shall not be required
to issue fractions of Redeemable Warrants upon the reissue of Redeemable
Warrants, any adjustments as described in Section 14 or otherwise. In lieu
thereof, the Company shall round up or down to the nearest full Redeemable
Warrant. If the total Redeemable Warrants surrendered by exercise would result
in the issuance of a fractional share, the Company shall not be required to
issue a fractional share, but rather the Company shall round up or down the
aggregate number of shares issuable to the nearest full share.
17. RIGHTS OF WARRANT HOLDERS. No Warrant Holder, as such, shall have
any rights of a shareholder of the Company, either at law or equity, and the
rights of the Warrant Holders, as such, are limited to those rights expressly
provided in this Agreement or in the Warrant Certificates. The Company and the
Warrant Agent may treat the Warrant Holder in respect of any Warrant
Certificates as the absolute owner thereof for all purposes notwithstanding any
notice to the contrary.
18. WARRANT AGENT. The Company hereby appoints the Warrant Agent to act
as the agent of the Company, and the Warrant Agent hereby accepts such
appointment upon the following terms and conditions:
a. Statements contained in this Agreement and in the Warrant
Certificates shall be taken as statements of the Company. The Warrant Agent
assumes no responsibility for the correctness of any of the same, except as such
describes the Warrant Agent or for action taken or to be taken by the Warrant
Agent.
b. The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the Company's covenants contained in this
Agreement or in the Warrant Certificates.
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c. The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company), and the Warrant Agent
shall incur no liability or responsibility to the Company or to any Warrant
Holder in respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with the opinion or the advice of such counsel,
provided the Warrant Agent shall have exercised reasonable care in the selection
and continued employment of such counsel.
d. The Warrant Agent shall incur no liability or
responsibility to the Company or to any Warrant Holder for any action taken in
reliance upon any notice, resolution, waiver, consent, order, certificate or
other paper, document or instrument reasonably believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties.
e. The Company agrees to pay to the Warrant Agent the fees
indicated on Exhibit B hereto, to reimburse the Warrant Agent for all reasonable
expenses, taxes (other than income taxes) and governmental charges and all other
charges of any kind in nature incurred by the Warrant Agent in the execution of
this Agreement and to indemnify the Warrant Agent and save it harmless against
any and all liabilities, including judgments, costs and counsel fees, for this
Agreement, except as a result of the Warrant Agent's negligence or bad faith.
f. The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more Warrant Holders shall furnish
the Warrant Agent with reasonable security and indemnity for any costs and
expenses which may be incurred in connection with such action, suit or legal
proceeding. Notwithstanding the foregoing, however, this provision shall not
effect the power of the Warrant Agent to take such action as the Warrant Agent
may consider proper, whether with or without any such security or indemnity. All
rights or action under this Agreement or under any of the Redeemable Warrants
may be enforced by the Warrant Agent without the possession of any of the
Warrant Certificates or the production thereof at any trial or the proceeding
relative thereto. Any such action, suit or proceeding instituted by the Warrant
Agent shall be brought in its name as Warrant Agent, and any recovery of
judgment shall be for the ratable benefit of the Warrant Holders as their
respective rights or interest may appear.
g. The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Redeemable
Warrants or other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested. In addition, the Warrant
Agent may contract with or lend money to the Company or otherwise act as fully
and freely as though it were not Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other capacity for
the Company or for any other legal entity.
19. SUCCESSOR WARRANT AGENT. Any corporation into which the Warrant
Agent may be merged or converted or with which it may be consolidated, or any
corporation
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resulting from any merger, conversion or consolidation to which the Warrant
Agent shall be a party, or any corporation succeeding to the corporate trust
business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act of a
party or the parties hereto. In any such event or if the name of the Warrant
Agent is changed, the Warrant Agent or such successor may adopt the
countersignature of the original Warrant Agent and may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name
of the successor Warrant Agent.
20. CHANGE OF WARRANT AGENT. The Warrant Agent may resign or be
discharged by the Company from its duties under this Agreement by the Warrant
Agent or the Company, as the case may be, giving notice in writing to the other,
and by giving a date on which such resignation or discharge shall take effect,
which notice shall be sent at least 30 days prior to the date so specified. If
the Warrant Agent shall resign, be discharged or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Warrant Agent.
If the Company shall fail to make such appointment within a period of 30 days
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by any Warrant Holder or after
discharging the Warrant Agent, any Warrant Holder may apply to the District
Court for Denver County, Colorado, for the appointment of a successor to the
Warrant Agent. Pending appointment of a successor to the Warrant Agent, either
by the Company or by such court, the duties of the Warrant Agent shall be
carried out by the Company. Any successor Warrant Agent, whether appointed by
the Company or by such court, shall be a bank or a trust company, in good
standing, organized under the laws of the Untied States of America and having at
the time of its appointment as Warrant Agent, a combined capital and surplus of
at least four million dollars. After appointment, the successor Warrant Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Warrant Agent without further act or deed, and
the former Warrant Agent shall deliver and transfer to the successor Warrant
Agent any property at the time held by it thereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for effecting the
delivery or transfer. Failure to give any notice provided for in this section,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Warrant Agent or the appointment of the successor
Warrant Agent, as the case may be.
21. NOTICES. Any notice or demand authorized by this Agreement to be
given or made by the Warrant Agent or by any Warrant Holder to or on the Company
shall be sufficiently given or made if sent by mail, first class, certified or
registered, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent), as follows:
PerArdua Corporation
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: President
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Any notice or demand authorized by this Agreement to be given or made by any
Warrant Holder or by the Company to or on the Warrant Agent shall be
sufficiently given or made if sent by mail, first class, certified or
registered, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
American Securities Transfer & Trust, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Any distribution, notice or demand required or authorized by this Agreement to
be given or made by the Company or the Warrant Agent to or on the Warrant
Holders shall be sufficiently given or made on the day of mailing if sent by
mail, first class, certified or registered, postage prepaid, addressed to the
Warrant Holders at their last known addresses as they shall appear on the
registration books for the Warrant Certificates maintained by the Warrant Agent.
22. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Agent may,
from time to time, supplement or amend this Agreement without the approval of
any Warrant Holders in order to cure any ambiguity or to correct or supplement
any provision contained herein which may be defective or inconsistent with any
other provisions herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Warrant Agent may deem
necessary or desirable.
23. SUCCESSORS. All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Warrant Agent shall bind and inure to
the benefit of their respective successors and assignees hereunder.
24. TERMINATION. This Agreement shall terminate at the close of
business on the Expiration Date or such earlier date upon which all Redeemable
Warrants have been exercised; provided, however, that if exercise of the
Redeemable Warrants is suspended pursuant to Section 13 and such suspension
continues past the Expiration Date, this Agreement shall terminate at the close
of business on the business day immediately following expiration of such
suspension. The provisions of Section 18 shall survive such termination.
25. GOVERNING LAW. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract make under the laws of the State of
Colorado and for all purposes and shall be construed in accordance with the laws
of said state.
26. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give any person or corporation other than the Company, the Warrant
Agent and the Warrant Holders any legal or equitable right, remedy or claim
under this Agreement. This Agreement shall be for the sole and exclusive benefit
of the Company, the Warrant Agent and the Warrant Holders.
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27. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed to be
an original and all such counterparts shall together constitute but one and the
same instrument.
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Effective Date: __________ , 1997
PERARDUA CORPORATION
By:
------------------------
Its:
-----------------------
Date:
----------------------
AMERICAN SECURITIES TRANSFER &
TRUST, INC.
By:
------------------------
Its:
-----------------------
Date:
----------------------
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WARRANT CERTIFICATE
THIS WARRANT EXPIRES AT 5:00 P.M., NEW YORK TIME, ON ___________ , 2002
NUMBER WARRANTS
W CUSIP 713603 11 6
REDEEMABLE WARRANT CERTIFICATE FOR PURCHASE OF COMMON STOCK
PERARDUA CORPORATION
This certifies that FOR VALUE RECEIVED
or registered assigns
(the ``Registered Holder'') is the owner of the number of Redeemable Warrants
(``Warrants'') specified above. Each Warrant initially entitles the Registered
Holder to purchase subject to the terms and conditions set forth in this
Certificate and the Warrant Agreement (as hereinafter defined), one fully paid
and nonassessable share of Common Stock, $.01 par value, of PerArdua
Corporation, a Delaware corporation (the ``Company''), at any time between June
28, 1998 through June 28, 2002 (the ``Last Exercise Date''), upon the
presentation and surrender of this Warrant Certificate with the Subscription
Form on the reverse hereof duly executed, at the corporate office of American
Securities Transfer & Trust Company as Warrant Agent, or its successor (the
``Warrant Agent''), accompanied by payment of $6.50 (the ``Purchase Price'') in
lawful money of the United States of America in cash or by official bank or
certified check made payable to the order of the Company.
This Warrant Certificate and each Warrant represented hereby are issued
pursuant to and are subject in all respects to the terms and conditions set
forth in the Warrant Agreement (the ``Warrant Agreement''), dated June 28, 1997,
by and between the Company and the Warrant Agent.
In the event of certain contingencies provided for in the Warrant
Agreement, the Purchase Price or the number of shares of Common Stock subject to
purchase upon the exercise of each Warrant represented hereby are subject to
modification or adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional shares of Common Stock will be issued. In
the case of the exercise of less than all the Warrants represented hereby, the
Company shall cancel this Warrant Certificate upon the surrender hereof and
shall execute and deliver a new Warrant Certificate or Warrant Certificates of
like tenor, which the Warrant Agent shall countersign, for the balance of such
Warrants.
The term "Expiration Date" shall mean 5:00 p.m. (New York time) on the Last
Exercise Date, or such earlier date as the Warrants shall be redeemed. If such
date shall in the State of New York be a holiday or a day on which the banks are
authorized to close, then the Expiration Date shall mean 5:00 p.m. (New York
time) the next following day which in the State of New York is not a holiday or
a day on which banks are authorized to close.
The Company shall not be obligated to deliver any securities pursuant to
the exercise of the Warrants represented by this Warrant Certificate unless a
registration statement under the Securities Act of 1933, as amended, with
respect to such securities is effective. The Company has covenanted and agreed
that it will file post effective amendments to the registration statement (which
events require such amendments) and cause the same to become effective and to
keep such registration statement current. The Warrants represented hereby shall
not be exercisable by a Registered Holder in any state where such exercise would
be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof by the
Registered Holder at the corporate office of the Warrant Agent, for a new
Warrant Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Warrants, each of such new Warrant Certificates to represent
such number of Warrants as shall be designated by such Registered Holder at the
time of such surrender. Upon due presentment together with any service charge in
addition to any tax or other governmental charge imposed in connection
therewith, for registration or transfer of this Warrant Certificate at such
office, a new Warrant Certificate or Warrant Certificates representing an equal
aggregate number of Warrants will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Warrant Agreement.
Prior to the exercise of any Warrant represented hereby, the Registered
Holder shall not be entitled to any rights of a shareholder of the Company,
including, without limitation, the right to vote or to receive dividends or
other distributions, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided in the Warrant Agreement.
Warrants represented by this Warrant Certificate may be redeemed at the
option of the Company, on or after June 21, 1998, at a redemption price of $.20
per Warrant, provided the average closing bid price (as defined in the Warrant
Agreement) for the Common Stock issuable upon exercise of such Warrant is at
least $9.00 per share for a twenty consecutive trading day period ending within
10 days prior to the date on which the notice of redemption is given. Notice of
redemption shall be given at least thirty days prior to the date fixed for
redemption as provided in the Warrant Agreement. On and after the date fixed for
redemption, the Registered Holder shall have no rights with respect to the
Warrants represented by this Warrant Certificate except to receive the $.20 per
Warrant upon surrender of this Certificate.
Prior to due presentment for registration of transfer hereof, the Company
and the Warrant Agent may deem and treat the Registered Holder as the absolute
owner hereof and of each Warrant represented hereby (notwithstanding any
notations of ownership or writing hereon made by anyone other than a duly
authorized officer of the Company or the Warrant Agent) for all purposes and
shall not be affected by any notice to the contrary.
This Warrant Certificate shall be governed by and construed in accordance
with the laws of the State of New York.
This Warrant Certificate is not valid unless countersigned by the Warrant
Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed, manually or in facsimile by two of its officers thereunto duly
authorized and a facsimile of its corporate seal to be imprinted hereon.
Dated: PERARDUA CORPORATION
By By
/s/ Xxxxxx X. Xxxxx, Xx.
Secretary President
CORPORATE SEAL
COUNTERSIGNED AND REGISTERED:
American Securities Transfer & Trust, Inc.
X.X. Xxx 0000
Xxxxxx, Xxxxxxxx 00000
By ____________________________________
Transfer Agent Authorized Signature
SUBSCRIPTION FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrants
The undersigned Registered Holder hereby irrevocably elects to exercise
_______________ Warrants represented by this Warrant Certificate, and to
purchase the securities issuable upon the exercise of such Warrants, and
requests that certificates for such securities shall be issued in the name of
________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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(please print or type name and address)
and be delivered to
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(please print or type name and address)
and if such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, that a new Warrant Certificate for the balance of such
Warrants be registered in the name of, and delivered to, the Registered Holder
at the address stated below.
ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Warrants
FOR VALUE RECEIVED, _________________________________ the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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(please print or type name and address)
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of the Warrants represented by this Warrant Certificate, and hereby irrevocably
constitutes and appoints
______________________________________________________________________ Attorney
to transfer this Warrant Certificate on the books of the Company, with full
power of substitution in the premises.
Dated: __________________________ X ___________________________________
Signature Guaranteed
___________________________________
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS REDEEMABLE WARRANT CERTIFICATE IN EVERY
PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST
BE GUARANTEED BY AN ELIGIBLE INSTITUTION (AS DEFINED IN RULE 17Ad-15 UNDER THE
SECURITIES EXCHANGE ACT OF 1934) WHICH MAY INCLUDE A COMMERCIAL BANK, TRUST
COMPANY OR SAVINGS ASSOCIATION, CREDIT UNION OR MEMBER FIRM OF THE AMERICAN
STOCK EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR MIDWEST STOCK
EXCHANGE.
