Exhibit 99.3
THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND THE COMMON SHARES
ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS WARRANT UNDER SAID ACT AND APPLICABLE STATE SECURITIES
LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO CHINA PEREGRINE
FOOD CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
Right to Purchase 16,250 Shares of Common Stock
of China Peregrine Food Corporation (subject to
adjustment as provided herein)
COMMON STOCK PURCHASE WARRANT
Xx. 0 Xxxxx , 0000
XXXXX XXXXXXXXX FOOD CORPORATION, a corporation organized under the
laws of the State of Delaware (the "Company"), hereby certifies that, for
value received, AUSTINVEST ANSTALT BALZERS, or assigns, is entitled,
subject to the terms set forth below, to purchase from the Company after
March ____, 1999 at any time or from time to time before 5:00 p.m., New
York time, on March ____, 2002 (the "Expiration Date"), up to 16,250 fully
paid and nonassessable shares of Common Stock (as hereinafter defined),
$.001 par value per share, of the Company, at a purchase price of $______
per share (such purchase price per share as adjusted from time to time as
herein provided is referred to herein as the "Purchase Price"). The number
and character of such shares of Common Stock and the Purchase Price are
subject to adjustment as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term Company shall include China Peregrine Food
Corporation and any corporation which shall succeed or assume the
obligations of China Peregrine Food Corporation hereunder.
(b) The term "Common Stock" includes (a) the Company's Common
Stock, $.001 par value per share, as authorized on the date of the
Agreement, (b) any other capital stock of any class or classes
(however designated) of the Company, authorized on or after such
date, the holders of which shall have the right, without limitation
as to amount, either to all or to a share of the balance of current
dividends and liquidating dividends after the payment of dividends
and distributions on any shares entitled to preference, and the
holders of which shall ordinarily, in the absence of contingencies,
be entitled to vote for the election of a majority of directors of
the Company (even if the right so to vote has been suspended by the
happening of such a contingency) and (c) any other securities into
which or for which any of the securities described in (a) or (b) may
be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
(c) The term "Other Securities" refers to any stock (other
than Common Stock) and other securities of the Company or any other
person (corporate or otherwise) which the holder of the Warrant at
any time shall be entitled to receive, or shall have received, on the
exercise of the Warrant, in lieu of or in addition to Common Stock,
or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities
pursuant to Section 4 or otherwise.
1. Exercise of Warrant.
1.1. Number of Shares Issuable upon Exercise. From and after
the date hereof through and including the Expiration Date, the holder
hereof shall be entitled to receive, upon exercise of this Warrant in
whole in accordance with the terms of subsection 1.2 or upon exercise
of this Warrant in part in accordance with subsection 1.3, shares of
Common Stock of the Company, subject to adjustment pursuant to
Section 4.
1.2. Full Exercise. This Warrant may be exercised in full by
the holder hereof by surrender of this Warrant, with the form of
subscription attached as Exhibit A hereto (the Subscription Form")
duly executed by such holder, to the Company at its principal office
or at the office of its Warrant agent (as provided in Section 11),
accompanied by payment, in cash or by certified or official bank
check payable to the order of the Company, in the amount obtained by
multiplying the number of shares of Common Stock for which this
Warrant is then exercisable by the Purchase Price (as hereinafter
defined) then in effect.
1.3. Partial Exercise. This Warrant may be exercised in part
(but not for a fractional share) by surrender of this Warrant in the
manner and at the place provided in subsection 1.2 except that the
amount payable by the holder on such partial exercise shall be the
amount obtained by multiplying (a) the number of shares of Common
Stock designated by the holder in the Subscription Form by (b) the
Purchase Price then in effect. On any such partial exercise, the
Company, at its expense, will forthwith issue and deliver to or upon
the order of the holder hereof a new Warrant of like tenor, in the
name of the holder hereof or as such holder (upon payment by such
holder of any applicable transfer taxes), may request, the number of
shares of Common Stock for which such Warrant may still be exercised.
1.4. Fair Market Value. Fair Market Value of a share of Common
Stock as of a particular date (the "Determination Date") shall mean
the Fair Market Value of a share of the Company's Common Stock. Fair
Market Value of a share of Common Stock as of a Determination Date
shall mean:
(a) If the Company's Common Stock is traded on an
exchange or is quoted on the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") National Market
System or the NASDAQ SmallCap Market, then the closing or last
sale price, respectively, reported for the last business day
immediately preceding the Determination Date.
(b) If the Company's Common Stock is not traded on an
exchange or on the NASDAQ National Market System or the NASDAQ
SmallCap Market but is traded in the over-the-counter market,
then the mean of the closing bid and asked prices reported for
the last business day immediately preceding the Determination
Date.
(c) Except as provided in clause (d) below, if the
Company's Common Stock is not publicly traded, then as the
Holder and the Company agree or in the absence of agreement by
arbitration in accordance with the rules then standing of the
American Arbitration Association, before a single arbitrator to
be chosen from a panel of persons qualified by education and
training to pass on the matter to be decided.
(d) If the Determination Date is the date of a
liquidation, dissolution or winding up, or any event deemed to
be a liquidation, dissolution or winding up pursuant to the
Company's charter, then all amounts to be payable per share to
holders of the Common Stock pursuant to the charter in the
event of such liquidation, dissolution or winding up, plus all
other amounts to be payable per share in respect of the Common
Stock in liquidation under the charter, assuming for the
purposes of this clause (d) that all of the shares of Common
Stock then issuable upon exercise of all of the Warrants are
outstanding at the Determination Date.
1.5. Company Acknowledgment. The Company will, at the time of
the exercise of the Warrant, upon the request of the holder hereof
acknowledge in writing its continuing obligation to afford to such
holder any rights to which such holder shall continue to be entitled
after such exercise in accordance with the provisions of this
Warrant. If the holder shall fail to make any such request, such
failure shall not affect the continuing obligation of the Company to
afford to such holder any such rights.
1.6. Trustee for Warrant Holders. In the event that a bank or
trust company shall have been appointed as trustee for the holders of
the Warrants pursuant to Subsection 3.2, such bank or trust company
shall have all the powers and duties of a warrant agent appointed
pursuant to Section 10 and shall accept, in its own name for the
account of the Company or such successor person as may be entitled
thereto, all amounts otherwise payable to the Company or such
successor, as the case may be, on exercise of this Warrant pursuant
to this Section 1.
2. Delivery of Stock Certificates, etc. on Exercise. The Company
agrees that the shares of Common Stock purchased upon exercise of this
Warrant shall be deemed to be issued to the holder hereof as the record
owner of such shares as of the close of business on the date on which this
Warrant shall have been surrendered and payment made for such shares as
aforesaid. As soon as practicable after the exercise of this Warrant in
full or in part, and in any event within 10 days thereafter, the Company at
its expense (including the payment by it of any applicable issue taxes)
will cause to be issued in the name of and delivered to the holder hereof,
or as such holder (upon payment by such holder of any applicable transfer
taxes) may direct in compliance with applicable Securities Laws, a
certificate or certificates for the number of duly and validly issued,
fully paid and nonassessable shares of Common Stock (or Other Securities)
to which such holder shall be entitled on such exercise, plus, in lieu of
any fractional share to which such holder would otherwise be entitled, cash
equal to such fraction multiplied by the then Fair Market Value of one full
share, together with any other stock or other securities and property
(including cash, where applicable) to which such holder is entitled upon
such exercise pursuant to Section 1 or otherwise.
3. Adjustment for Reorganization, Consolidation, Merger, etc.
3.1. Reorganization, Consolidation, Merger, etc. In case at
any time or from time to time, the Company shall (a) effect a
reorganization, (b) consolidate with or merge into any other person,
or (c) transfer all or substantially all of its properties or assets
to any other person under any plan or arrangement contemplating the
dissolution of the Company, then, in each such case, as a condition
to the consummation of such a transaction, proper and adequate
provision shall be made by the Company whereby the holder of this
Warrant, on the exercise hereof as provided in Section 1 at any time
after the consummation of such reorganization, consolidation or
merger or the effective date of such dissolution, as the case may be,
shall receive, in lieu of the Common Stock (or Other Securities)
issuable on such exercise prior to such consummation or such
effective date, the stock and other securities and property
(including cash) to which such holder would have been entitled upon
such consummation or in connection with such dissolution, as the case
may be, if such holder had so exercised this Warrant, immediately
prior thereto, all subject to further adjustment thereafter as
provided in Section 4.
3.2. Dissolution. In the event of any dissolution of the
Company following the transfer of all or substantially all of its
properties or assets, the Company, prior to such dissolution, shall
at its expense deliver or cause to be delivered the stock and other
securities and property (including cash, where applicable) receivable
by the holders of the Warrants after the effective date of such
dissolution pursuant to this Section 3 to a bank or trust company
having its principal office in New York, NY, as trustee for the
holder or holders of the Warrants.
3.3. Continuation of Terms. Upon any reorganization,
consolidation, merger or transfer (and any dissolution following any
transfer) referred to in this Section 3.3, this Warrant shall
continue in full force and effect and the terms hereof shall be
applicable to the shares of stock and other securities and property
receivable on the exercise of this Warrant after the consummation of
such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and
shall be binding upon the issuer of any such stock or other
securities, including, in the case of any such transfer, the person
acquiring all or substantially all of the properties or assets of the
Company, whether or not such person shall have expressly assumed the
terms of this Warrant as provided in Section 4. In the event this
Warrant does continue in full force and effect after the consummation
of the transaction described in this Section 3.3, then only in such
event will the Company's securities and property (including cash,
where applicable) receivable by the holders of the Warrants be
delivered to the Trustee as contemplated by Section 3.2.
4. Extraordinary Events Regarding Common Stock. In the event that
the Company shall (a) issue additional shares of the Common Stock as a
dividend or other distribution on outstanding Common Stock, (b) subdivide
its outstanding shares of Common Stock, or (c) combine its outstanding
shares of the Common Stock into a smaller number of shares of the Common
Stock, then, in each such event, the Purchase Price shall, simultaneously
with the happening of such event, be adjusted by multiplying the then
Purchase Price by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such event and the
denominator of which shall be the number of shares of Common Stock
outstanding immediately after such event, and the product so obtained shall
thereafter be the Purchase Price then in effect. The Purchase Price, as so
adjusted, shall be readjusted in the same manner upon the happening of any
successive event or events described herein in this Section 4. The number
of shares of Common Stock that the holder of this Warrant shall thereafter,
on the exercise hereof as provided in Section 1, be entitled to receive
shall be increased to a number determined by multiplying the number of
shares of Common Stock that would otherwise (but for the provisions of this
Section 4) be issuable on such exercise by a fraction of which (a) the
numerator is the Purchase Price that would otherwise (but for the
provisions of this Section 4) be in effect, and (b) the denominator is the
Purchase Price in effect on the date of such exercise.
5. Certificate as to Adjustments. In each case of any adjustment
or readjustment in the shares of Common Stock (or Other Securities)
issuable on the exercise of the Warrants, the Company at its expense will
promptly cause its Chief Financial Officer or other appropriate designee to
compute such adjustment or readjustment in accordance with the terms of the
Warrant and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration
received or receivable by the Company for any additional shares of Common
Stock (or Other Securities) issued or sold or deemed to have been issued or
sold, (b) the number of shares of Common Stock (or Other Securities)
outstanding or deemed to be outstanding, and (c) the Purchase Price and the
number of shares of Common Stock to be received upon exercise of this
Warrant, in effect immediately prior to such adjustment or readjustment and
as adjusted or readjusted as provided in this Warrant. The Company will
forthwith mail a copy of each such certificate to the holder of the Warrant
and any Warrant agent of the Company (appointed pursuant to Section 10
hereof).
6. Reservation of Stock, etc. Issuable on Exercise of Warrant;
Financial Statements. The Company will at all times reserve and keep
available, solely for issuance and delivery on the exercise of the
Warrants, all shares of Common Stock (or Other Securities) from time to
time issuable on the exercise of the Warrant. This Warrant entitles the
holder hereof to receive copies of all financial and other information
distributed or required to be distributed to the holders of the Company's
Common Stock.
7. Assignment; Exchange of Warrant. Subject to compliance with
applicable Securities laws, this Warrant, and the rights evidenced hereby,
may be transferred by any registered holder hereof (a "Transferor") with
respect to any or all of the Shares. On the surrender for exchange of this
Warrant, with the Transferor's endorsement in the form of Exhibit B
attached hereto (the Transferor Endorsement Form") and together with
evidence reasonably satisfactory to the Company demonstrating compliance
with applicable Securities Laws, the Company at its expense but with
payment by the Transferor of any applicable transfer taxes) will issue and
deliver to or on the order of the Transferor thereof a new Warrant or
Warrants of like tenor, in the name of the Transferor and/or the
transferee(s) specified in such Transferor Endorsement Form (each a
"Transferee"), calling in the aggregate on the face or faces thereof for
the number of shares of Common Stock called for on the face or faces of the
Warrant so surrendered by the Transferor.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation
of this Warrant and, in the case of any such loss, theft or destruction of
this Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of this Warrant, the Company at
its expense will execute and deliver, in lieu thereof, a new Warrant of
like tenor.
9. Registration Rights. The holder of this Warrant has been
granted certain registration rights by the Company. These registration
rights are set forth in a Subscription Agreement entered into by the
Company and Subscribers of the Company's Series D Preferred Stock at or
prior to the issue date of this Warrant. The terms of the Subscription
Agreement are incorporated herein by this reference. Upon the occurrence
of a Non-Registration Event as described in the Subscription Agreement, in
the event the Company is unable to issue Common Stock upon exercise of this
Warrant that has been registered in the Registration Statement described in
Section 10.1(iv) of the Subscription Agreement, which Registration
Statement must be effective throughout the exercise period of this Warrant,
then upon receipt by the Company of notice that the Holder of this Warrant
would exercise this Warrant but for the Company's inability to issue such
Common Stock upon exercise of this Warrant, then the Company will pay to
the Holder of this Warrant, in lieu of delivering Common Stock, a sum equal
to the closing ask price of the Company's Common Stock on NASD OTC Bulletin
Board or such other principal trading market for the Company's Common Stock
on the trading date immediately preceding the date notice is given by the
Holder, less the exercise price of this Warrant, for each share of Common
Stock designated in such notice from the Holder.
10. Warrant Agent. The Company may, by written notice to the each
holder of the Warrant, appoint an agent for the purpose of issuing Common
Stock (or Other Securities) on the exercise of this Warrant pursuant to
Section 1, exchanging this Warrant pursuant to Section 7, and replacing
this Warrant pursuant to Section 8, or any of the foregoing, and thereafter
any such issuance, exchange or replacement, as the case may be, shall be
made at such office by such agent.
11. Call Option. The Company shall have the option to "call" the
Warrants (the "Warrant Call"), in accordance with and governed by the
following:
(a) The Company shall exercise the Warrant Call by giving to
each Warrant Holder a written notice of call (the "Call Notice")
during the period in which the Warrant Call may be exercised.
(b) The Company's right to exercise the Warrant Call shall
commence with the Effective Date of the registration statement, as
defined in Section 10.1(iv) of the Subscription Agreement executed by
the parties contemporaneously herewith and, thereafter, shall be
coterminous with the exercise period of the Warrants for all or part
of the Common Stock issuable upon the exercise of the Warrants (the
"Warrant Shares"), provided, that the registration statement is
effective at the date the Call Notice is given and through the period
ending 14 business days thereafter. In no event may the Company
exercise the Warrant Call at any time unless the Warrant Shares to be
delivered upon exercise of the Warrant, will be upon delivery,
immediately resalable, without restrictive legend and upon such
resale freely transferable on the transfer books of the Company.
(c) Unless otherwise agreed to by the Warrant Holders, the
Call Notices must be given to all Warrant Holders in proportion to
the amounts of Common Stock which can be purchased by the respective
Warrant Holders in accordance with the respective Warrant held by
each.
(d) The Company may give Call Notices for up to 50% of the
Warrant Shares if the Company's Common Stock has traded at a price
equal to or in excess of two hundred percent (200%) of the Closing
Price for the twenty (20) consecutive trading days prior to the date
of the Call Notice.
(e) The Company may give Call Notices for up to 100% of the
Warrant Shares if the Company's Common Stock has traded at a price
equal to or in excess of two hundred fifty percent (250%) of the
Closing Price for the twenty (20) consecutive trading days prior to
the date of the Call Notice.
(f) The respective Warrant Holders shall exercise their
Warrant rights and purchase the appropriate Warrant Shares and pay
for same all within 14 business days of the date of the Call Notice.
12. Transfer on the Company's Books. Until this Warrant is
transferred on the books of the Company, the Company may treat the
registered holder hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
13. Notices, etc. All notices and other communications from the
Company to the holder of this Warrant shall be mailed by first class
registered or certified mail, postage prepaid, at such address as may have
been furnished to the Company in writing by such holder or, until any such
holder furnishes to the Company an address, then to, and at the address of,
the last holder of this Warrant who has so furnished an address to the
Company.
14. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by
the party against which enforcement of such change, waiver, discharge or
termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the laws of New York. Any dispute relating
to this Warrant shall be adjudicated in New York State. The headings in
this Warrant are for purposes of reference only, and shall not limit or
otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the
validity or enforceability of any other provision.
IN WITNESS WHEREOF, the Company has executed this Warrant under seal
as of the date first written above.
China Peregrine Food Corporation
By:_______________________________
Xxx X. Xxxxxx, President
Witness:
______________________________
Exhibit A
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: China Peregrine Food Corporation
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, ________
shares of Common Stock of China Peregrine Food Corporation and herewith
makes payment of $________ therefor, and requests that the certificates for
such shares be issued in the name of, and delivered to _________________
whose address is __________________________________________.
The undersigned represents and warrants that all offers and sales by the
undersigned of the securities issuable upon exercise of the within Warrant
shall be made pursuant to registration of the Common Stock under the
Securities Act of 1933, as amended (the "Securities Act") or pursuant to an
exemption from registration under the Securities Act.
Dated:_____________________________
__________________________________
(Signature must conform to name of
holder as specified on the face of
the Warrant)
__________________________________
(Address)
Exhibit B
FORM OF TRANSFEROR ENDORSEMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto the person(s) named below under the heading "Transferees"
the right represented by the within Warrant to purchase the percentage and
number of shares of Common Stock of China Peregrine Food Corporation to
which the within Warrant relates specified under the headings "Percentage
Transferred" and "Number Transferred," respectively, opposite the name(s)
of such person(s) and appoints each such person Attorney to transfer its
respective right on the books of China Peregrine Food Corporation with full
power of substitution in the premises.
Percentage Number
Transferees Transferred Transferred
----------- ----------- -----------
Dated:________________, 19 ____
__________________________________
(Signature must conform to name of
holder as specified on the face of
the warrant)
Signed in the presence of:
________________________________ __________________________________
(Name) (address)
__________________________________
ACCEPTED AND AGREED: (address)
[TRANSFEREE]
_______________________________
(Name)