EXHIBIT 4.2
Dated: August 16, 1996
STOCK PURCHASE WARRANT
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Warrant to Purchase Shares of the Common Stock,
of PerArdua Corporation
For value received, PerArdua Corporation, a Missouri corporation (the
"Company"), hereby grants to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Partners the right to purchase
(subject to the provisions of this Warrant) up to 13,396 shares of the Company's
Common Stock, par value $0.001 per share (the "Stock"), at a purchase price of
Ten Dollars ($10.00) per share (the "Exercise Price").
The number of shares of Stock to be received upon the exercise of this
Warrant and the price to be paid for a share of Stock may be adjusted
periodically as hereinafter set forth. The shares of Stock deliverable upon such
exercise of this Warrant are hereinafter sometimes referred to as the "Warrant
Stock", and the purchase price per share of Stock in effect at any time is
hereinafter sometimes referred to as the "Exercise Price". The term "Warrant",
as used herein, shall include this Warrant and any Warrants issued in
substitution for or replacement of this Warrant or into which this Warrant may
be divided or exchanged.
(a) Exercise of Warrant.
On the terms and subject to the conditions herein set forth, the holder
shall have the right to exercise this Warrant in whole or in part at any time or
from time to time following the FDA Approval Date, as defined hereafter, until
5:00 p.m. Local Time on June 30, 2006, by presentation and surrender hereof to
the Company together with the Purchase Form attached hereto duly executed, and
accompanied by payment of the Exercise Price for the number of shares specified
in such Purchase Form, together with all federal and state taxes, if any,
applicable upon such exercise. The "FDA Approval Date" means the date on which
approval by the Food and Drug Administration is given permitting the public sale
of any products developed from or in connection with the Assets, as defined in
that certain Option and Asset Purchase Agreement between the Company and
PerArdua Investors, L.P., dated of even date herewith.
If this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a new
Warrant evidencing the right of the Holder to purchase the balance of the shares
purchasable hereunder on the terms specified herein. Upon receipt by the Company
of this Warrant in proper form for exercise and payment of the Exercise Price,
the Holder shall be deemed to be the holder of record of the shares of Stock
issuable upon such exercise, notwithstanding that the stock transfer books of
the Company shall then be closed or that certificates representing such shares
of Stock shall not then be actually delivered to the Holder.
(2) Net Issue Exercise. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of Common Stock is greater than
the Exercise Price (at the date of calculation as set forth below), in lieu of
exercising this Warrant for cash, the holder may elect to receive shares equal
to the value (as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with the properly endorsed Purchase Form and notice of such election in
which event the Company shall issue to the Holder a number of shares of Common
Stock computed using the following formula:
Y (A - B)
X = -----------
A
Where X = the number of shares of Common Stock to be issued to the
holder
Y = the number of shares of Common Stock purchasable
under the Warrant or, if only a portion of the
Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such
calculation)
A = the fair market value of one share of the
Company's Common Stock (at the date of such
calculation)
B = Exercise Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, fair market value (the "Fair Market
Value") of one share of Common Stock shall be determined by the Company's Board
of Directors in good faith; provided, however, that where there exists a public
market for the Company's Common Stock at the time of such exercise, the fair
market value per share shall be the average of the closing bid and asked prices
of the Common Stock quoted in the Over-The-Counter Market Summary or the last
reported sale price of the Common Stock or the closing price quoted on the
Nasdaq National Market or on any exchange on which the Common Stock is listed,
whichever is applicable, as published in the Western Edition of The Wall Street
Journal for the five (5) trading days prior to the date of determination of fair
market value. Notwithstanding the foregoing, in the event the Warrant is
exercised in connection with the Company's initial public offering of the Common
Stock, the fair market value per share shall be the per share offering price to
the public of the Company's initial public offering.
(b) Reservation of Shares. The Company hereby agrees that at all times
there shall be reserved for issuance and delivery upon exercise of this Warrant
such number of shares of its Stock as shall be required for issuance or delivery
upon exercise.
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(c) Fractional Shares. No fractional shares shall be issued upon the
exercise of this Warrant. With respect to any fraction of a share called for
upon any exercise hereof, the Company shall pay to the Holder an amount in cash
equal to such fraction multiplied by the current Fair Market Value of a share of
Stock.
(d) Exchange, Loss or Mutilation of Warrant. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof at the office of the Company, for other Warrants of
different denominations entitling the Holder to purchase in the aggregate the
same number of shares of Stock purchasable hereunder. Upon receipt by the
Company of evidence satisfactory to it of the loss, theft or destruction of this
Warrant, and of reasonably satisfactory indemnification, and if mutilated, upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new Warrant with identical terms, conditions and date.
(e) Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder of the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed in the
Warrant and are not enforceable against the Company except to the extent set
forth herein.
(f) Restrictions on Transfer.
(1) This Warrant shall not be exercisable and/or transferrable
and the Warrant Stock shall not be transferrable except upon the conditions
specified in this Section (f), which conditions are intended, among other
things, to insure compliance with the provisions of the Securities Act of 1933
(the "Securities Act") in respect of the exercise and/or transfer of such
Warrant and/or transfer of such Warrant Stock.
(2) This Warrant shall not be exercisable and/or transferrable
and the Warrant Stock shall not be transferrable unless, prior to any exercise
or transfer, the Company shall receive from the holder of the Warrant or such
Warrant Stock, and/or the transferee thereof, as the case may be, a written
notice stating that such person is aware that Warrant and/or the Warrant Stock
have not been registered under the Securities Act and that such person is
acquiring the Warrant and/or Warrant Stock for investment only and not with the
view to the disposition or public offering thereof (otherwise than an offering
registered under the Securities Act) and that such person is aware that the
certificates representing the Warrant Stock shall bear a legend restricting
re-transfer and disposition thereof in accordance with the Securities Act
unless, in the opinion of counsel to the Company, such legend may be omitted.
This Warrant shall not be transferrable unless it has been registered under
applicable securities laws or unless there is, in the reasonable opinion of
counsel to the Company, an available exemption from such registration
requirement.
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(g) Registration under Securities Act.
(1) For a period beginning June 30, 1997 and ending June 30, 2006
(the "Piggyback Rights Period"), if the Company proposes to file a registration
statement (the "Registration Statement") for registration of any shares of
Common Stock under the Securities Act other than a registration relating solely
to an employee benefits plan or a corporate reorganization or other transaction
under Rule 145 or a registration on any form that does not permit secondary
sales, the Company will:
(i) Give written notice of such intention to the holder of a
Warrant or Warrant Stock (a "Holder", and together with other holders
of Warrants and Warrant Stock dated of even date herewith, the
"Holders") at least thirty (30) days prior to the proposed filing date;
and
(ii) Use its best efforts to include in such registration
the number of shares of the Holder's Warrant Stock (the "Registrable
Securities") specified in a notice received by the Company within
twenty (20) days of the date of the notice specified in (i) above is
mailed or delivered to the Holder.
Notwithstanding the foregoing, if in any firmly underwritten public offering the
managing underwriter thereof determines that any of the Registrable Securities
of the Holders and any other holders of registration rights must be excluded
from the registration as a result of marketing factors, which determination
shall be given in writing, the number of shares of Registrable Securities owned
by the Holders to be included in the offering shall be allocated among the
Holders and any other holders of registration rights pro rata in accordance with
the number of shares of Common Stock requested to be included in such
registration.
(2) If and whenever the Company is required by the provisions of
this Section to use its best efforts to include any Registrable Securities in
any registration of any of its securities under the Securities Act, the Company
will, as expeditiously as possible and at its sole cost and expense:
(i) cause any registration statement filed to become and
remain effective until all of the Registrable Securities are sold, but
not for any period longer than nine months;
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement whenever the Holders shall desire to dispose of
the same;
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(iii) furnish to each Holder such number of copies of a
summary prospectus or other prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act
and such other documents as such Holder may reasonably request in order
to facilitate the disposition of the securities owned by such ▇▇▇▇▇▇;
and
(iv) use its best efforts to register or qualify the
securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as each Holder shall
request and use its best efforts to do any and all other acts and
things which may be reasonably necessary to enable such Holder to
consummate the disposition in such jurisdiction of the securities owned
by such Holder.
(v) cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which
similar securities issued by the Company are then listed.
(vi) provide a transfer agent and registrar for all
Registrable Securities registered pursuant to such registration
statement and a CUSIP number for all such Registrable Securities, in
each case not later than the effective date of such registration.
(3) The Company shall pay all expenses incurred by it in
complying with this Section (g) (including without limitation all registration
and filing fees, printing expenses and fees and disbursements of counsel for the
Company) but not the fees and disbursements of counsel for the Holders.
(4) In the event of any registration of any of its securities
under the Securities Act pursuant to this Section, the Company will indemnify
and hold harmless the Holder of such securities and each other person, if any,
who controls such Holder within the meaning of the Securities Act and each other
person who participates in the offering of such securities, against any
expenses, losses, claims, damages or liabilities, joint or several, to which
such Holder or controlling person or participating person may become subject
under the Securities Act or otherwise, in so far as such expenses, losses,
claims, damages or liabilities (or action in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained, on the effective date thereof, in any qualification or
registration statement under which such securities were registered under the
Securities Act or qualified under any applicable state securities law, any
preliminary prospectus or final prospectus contained therein or any amendment or
supplement thereto, or any document incident to any such registration or
qualification (collectively the "Offering Documents"), or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation of the Securities Act or State securities law or
any other regulation thereunder in connection with any registration,
qualification or compliance, and will reimburse such Holder and each such
controlling person or participating person for any legal or any other expenses
reasonably incurred by such Holder or such
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controlling person or participating person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
expense, loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Offering Document in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by such
Holder specifically for use in the preparation thereof. Each Holder shall, upon
the receipt of notice of the commencement of any action against such Holder or
against any such controlling person or participating person, in respect of which
indemnity may be sought from the Company on account of the indemnity agreement
contained in this Subsection (g)(4), promptly notify the Company in writing of
the commencement thereof. The omission of such Holder so to notify the Company
of any such action shall not relieve the Company from any liability which the
Company may have to such Holder or such controlling person or participating
person on account of the indemnity agreement contained in this Section to the
extent such failure is not prejudicial. In case any such action shall be brought
against any Holder or any such controlling person or participating person and
such Holder shall notify the Company of the commencement thereof, the Company
shall be entitled to participate in (and, to the extent that the Company shall
wish, to direct) the defense thereof at the Company's own expense, in which
event the defense shall be conducted by recognized counsel chosen by the Company
and reasonably satisfactory to the Holder. In the event of any registration by
the Company of any of its securities under the Securities Act pursuant to this
Section, the Holder of the securities so registered will indemnify and hold
harmless the Company and each other person, if any, who controls the Company
within the meaning of the Securities Act and each officer and director of the
Company and the other Holders to the same extent that the Company agrees to
indemnify it, but only with respect to the written information relating to such
Holder furnished to the Company by such Holder as aforesaid. Notwithstanding the
foregoing, in no event shall any indemnity by the Holder exceed the gross
proceeds from the sale of Registrable Securities received by such Holder in the
Offering.
(h) Anti-Dilution Provisions.
(1) In the event the Company shall (i) pay a dividend in shares
of Stock, or make a distribution in shares of Stock, (ii) subdivide its
outstanding shares of Stock, (iii) combine its outstanding shares of Stock into
a smaller number of shares of Stock or (iv) issue by reclassification of its
shares of Stock other securities of the Company, the number of shares of
purchasable upon exercise of this Warrant immediately prior thereto shall be
adjusted so that the Holder of this Warrant shall be entitled to receive the
kind and number of shares of Stock or other securities of the Company which such
▇▇▇▇▇▇ would have owned or have been entitled to receive after the happening of
any such event or any record date with respect thereto if such Holder had
exercised such Warrant immediately prior to such event or record date. An
adjustment made pursuant to this Subsection (h)(1) shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
(2) Whenever the number of shares purchasable upon the exercise
of this Warrant is adjusted as herein provided, the Exercise Price shall be
adjusted by multiplying such Exercise Price immediately prior to such adjustment
by a fraction, of which the numerator shall be the number of shares purchasable
upon the exercise of each Warrant immediately prior to such adjustment, and of
which the denominator shall be the number of shares so purchasable immediately
thereafter.
(3) No adjustment in the number of shares purchasable hereunder
shall be required unless such adjustment would require an increase or decrease
of at least one (1%) percent in the number of shares purchasable upon the
exercise of this Warrant; provided, however, that any adjustments which by
reason of this Subsection (h)(3) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
(4) For the purpose of this section, the term "Stock" shall mean
(i) any class of stock designated as the Common Stock of the Company at the date
of this Warrant, or (ii) any other class of stock resulting from successive
changes or reclassifications of such shares consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value. In
the event that at any time, as a result of an adjustment made pursuant to this
section, the Holders of a Warrant or Warrants shall become entitled to purchase
any shares of the Company other than shares of Stock, thereafter the number of
such other shares so purchasable upon exercise of this Warrant and the Exercise
Price of such shares shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Warrant Stock contained in Subsection (h)(1) through (4),
inclusive, above.
(5) Merger, Sale of Assets, Etc. If at any time while this
Warrant, or any portion thereof, is outstanding and unexpired there shall be (i)
a reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (iii) a sale or transfer of the Company's properties and assets
as, or substantially as, an entity to any other person, then, as a part of such
reorganization, merger, consolidation, sale or transfer, lawful provision shall
be made so that the holder of this Warrant shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Exercise Price then in effect, the number of shares of stock
or other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or transfer if this
Warrant had been exercised immediately before such reorganization, merger,
consolidation, merger, sale or transfer, all subject to further adjustment as
provided in this Section (h). The foregoing provisions of this Section (h)(7)
shall similarly apply to successive reorganizations, consolidations, mergers,
sales and
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transfers and to the stock or securities of any other corporation that are at
the time receivable upon the exercise of this Warrant. If the per-share
consideration payable to the holder hereof for shares in connection with any
such transaction is in a form other than cash or marketable securities, then the
value of such consideration shall be determined in good faith by the Company's
Board of Directors. In all events, appropriate adjustment (as determined in good
faith by the Company's Board of Directors) shall be made in the application of
the provisions of this Warrant with respect to the rights and interests of the
Holder after the transaction, to the end that the provisions of this Warrant
shall be applicable after that event, as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise of
this Warrant.
(i) Officer's Certificate. Whenever the number of shares purchasable
upon exercise of this Warrant or the Exercise Price shall be adjusted as
required by the provisions of Section (h) hereof, the Company shall forthwith
cause a certificate executed by its Chief Financial Officer showing the number
of shares purchasable upon the exercise of this Warrant and the Exercise Price
after such adjustment, determined as herein provided, and setting forth in
reasonable detail the facts requiring such adjustment to be mailed to the Holder
of this Warrant.
(j) Notices to Warrant Holders. So long as this Warrant shall be
outstanding and unexercised (i) if the Company shall pay any dividend or make
any distribution upon the Stock or (ii) if the Company shall offer to the
holders of Stock for subscription or purchase by them any shares of Stock of any
class or any other rights or (iii) if any capital reorganization of the company,
reclassification of the capital stock of the Company, consolidation or merger of
the Company with or into another corporation, sale, lease or transfer of all or
substantially all of the property and assets of the Company to another
corporation, or voluntary or involuntary dissolution, liquidation or winding up
of the Company shall be effected, then, in any such case, the Company shall
cause to be delivered to the Holder, at least twenty-one (21) days prior to the
date specified in (A) or (B) below, as the case may be, a notice containing a
brief description of the proposed action and stating the date on which (A) a
record is to be taken for purpose of such dividend, distribution or rights, or
(B) such reclassification, reorganization, consolidation, merger, conveyance,
lease, dissolution, liquidation or winding up is to take place and the date, if
any, as of which the holders of Stock of record shall be entitled to exchange
their shares of Stock for securities or other property deliverable upon such
reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up.
(k) Applicable Law. This Warrant shall be governed by, and construed in
accordance with, the laws of the State of Missouri.
IN WITNESS WHEREOF, this Agreement has been duly executed by the duly
authorized officer of the Company as of the date first written above.
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PERARDUA CORPORATION
By:
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Name:
------------------------
Title:
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ATTEST:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Secretary
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PURCHASE FORM
DATED:______________, 19___
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _______________ shares of Common Stock and
hereby makes payment of $_______________ in payment of the actual exercise price
thereof, and requests that a certificate for such shares be issued in the name
of the undersigned and be delivered to the undersigned at the address stated
below, and, if such number of shares shall not be all of the shares purchasable
hereunder, that a new Warrant of like tenor for the balance of the remaining
shares purchasable hereunder be delivered to the undersigned at the address
stated below:
Signed:
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Address:
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Social Security
or Federal Tax
I.D. #
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