Exhibit 10.49
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 ACT, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF,
BY PURCHASING THIS COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF
THE COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE 1933 ACT, OR (C) IF REGISTERED UNDER THE 1933 ACT
AND ANY APPLICABLE STATE SECURITIES LAWS. IN ADDITION, A SECURITIES
PURCHASE AGREEMENT ("PURCHASE AGREEMENT"), DATED THE DATE HEREOF, A COPY OF
WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICE,
CONTAINS CERTAIN ADDITIONAL AGREEMENTS AMONG THE PARTIES, INCLUDING,
WITHOUT LIMITATION, PROVISIONS WHICH LIMIT THE EXERCISE RIGHTS OF THE
HOLDER AND SPECIFY MANDATORY REDEMPTION OBLIGATIONS OF THE COMPANY.
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Entech Environmental Technologies, Inc.
COMMON STOCK PURCHASE WARRANT
Number of shares: [40 shares for every $1 of Note Purchased] [4,000,000]
Holder: Xxxxxx Partners LP
c/o Xxxxxx Xxxxxx Xxxxxx
Managing Partner
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx XX 00000
tel 000-000-0000
fax 000-000-0000
xxx@xxxxxxxxxxxxxx.xxx
Expiration Date: December 30, 2010
Exercise Price per Share: $0.05
Entech Environmental Technologies, Inc., a company organized and existing under
the laws of the State of Florida (the "COMPANY"), hereby certifies that, for
value received, Xxxxxx Partners LP, or its registered assigns (the "WARRANT
HOLDER"), is entitled, subject to the terms set forth below, to purchase from
the Company Four Million (4,000,000) shares of common stock, $0.001 par value
(the "COMMON STOCK"), of the Company (each such share, a "WARRANT SHARE" and all
such shares, the "WARRANT SHARES") in exchange for (a) one (1) Warrant and (b)
$0.05 per share (as adjusted from time to time as provided in Section 7, per
Warrant Share (the "EXERCISE PRICE"), at any time and from time to time from and
after the date thereof and through and including 5:00 p.m. New York City time on
December 30, 2010 (or eighteen months of effectiveness of a Registration
Statement subsequent to the issuance herein, whichever is longer) (the
"EXPIRATION DATE"), and subject to the following terms and conditions:
1. REGISTRATION OF WARRANT. The Company shall register this Warrant upon
records to be maintained by the Company for that purpose (the "WARRANT
REGISTER"), in the name of the record Warrant Holder hereof from time to time.
The Company may deem and treat the registered Warrant Holder of this Warrant as
the absolute owner hereof for the purpose of any exercise hereof or nay
distribution to the Warrant Holder, and for all other purposes, and the Company
shall not be affected by notice to the contrary.
2. INVESTMENT REPRESENTATION. The Warrant Holder by accepting this Warrant
represents that the Warrant Holder is acquiring this Warrant for its own account
or the account of an affiliate for investment purposes and not with the view to
any offering or distribution and that the Warrant Holder will not sell or
otherwise dispose of this Warrant or the underlying Warrant Shares in violation
of applicable securities laws. The Warrant Holder acknowledges that the
certificates representing any Warrant Shares will bear a legend indicating that
they have not been registered under the United States Securities Act of 1933, as
amended (the "1933 ACT") and may not be sold by the Warrant Holder except
pursuant to an effective registration statement or pursuant to an exemption from
registration requirements of the 1933 Act and in accordance with federal and
state securities laws. If this Warrant was acquired by the Warrant Holder
pursuant to the exemption from the registration requirements of the 1933 Act
afforded by Regulation S thereunder, the Warrant Holder acknowledges and
covenants that this Warrant may not be exercised by or on behalf of a Person
during the one year distribution compliance period (as defined in Regulation S)
following the date hereof. "PERSON" means an individual, partnership, firm,
limited liability company, trust, joint venture, association, corporation, or
any other legal entity.
3. VALIDITY OF WARRANT AND ISSUE OF SHARES. The Company represents and
warrants that this Warrant has been duly authorized and validly issued and
agrees that all of Common Stock that may be issued upon the exercise of the
rights represented by this Warrant will, when issued upon such exercise, be duly
authorized, validly issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to the issue thereof. The Company further
warrants and agrees that during the period within which the rights represented
by this Warrant may be exercised, the Company will at all times have authorized
and reserved a sufficient number of Common Stock to provide for the exercise of
the rights represented by this Warrant.
4. REGISTRATION OF TRANSFERS AND EXCHANGE OF WARRANTS.
a. Subject to compliance with the legend set forth on the face of this
Warrant, the Company shall register the transfer of any portion of this
Warrant in the Warrant Register, upon surrender of this Warrant with the
Form of Assignment attached hereto duly completed and signed, to the
Company at the office specified in or pursuant to Section 9. Upon any such
registration or transfer, a new warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new warrant, a "NEW
WARRANT"), evidencing the portion of this Warrant so transferred shall be
issued to the transferee and a New Warrant evidencing the remaining portion
of this Warrant not so transferred, if any, shall be issued to the
transferring Warrant Holder. The acceptance of the New Warrant by the
transferee thereof shall be deemed the acceptance of such transferee of all
of the rights and obligations of a Warrant Holder of a Warrant.
b. This Warrant is exchangeable, upon the surrender hereof by the
Warrant Holder to the office of the Company specified in or pursuant to
Section 9 for one or more New Warrants, evidencing in the aggregate the
right to purchase the number of Warrant Shares which may then be purchased
hereunder. Any such New Warrant will be dated the date of such exchange.
5. EXERCISE OF WARRANTS.
a. Upon surrender of this Warrant with the Form of Election to
Purchase attached hereto duly completed and signed to the Company, at its
address set forth in Section 9, and upon payment and delivery of the
Exercise Price per Warrant Share multiplied by the number of Warrant Shares
that the Warrant Holder intends to purchase hereunder, in lawful money of
the United States of America, in cash or by certified or official bank
check or checks, to the Company, all as specified by the Warrant Holder in
the Form of Election to Purchase, the Company shall promptly (but in no
event later than 7 business days after the Date of Exercise [as defined
herein]) issue or cause to be issued and cause to be delivered to or upon
the written order of the Warrant Holder and in such name or names as the
Warrant Holder may designate (subject to the restrictions on transfer
described in the legend set forth on the face of this Warrant), a
certificate for the Warrant Shares issuable upon such exercise, with such
restrictive legend as required by the 1933 Act. Any person so designated by
the Warrant Holder to receive Warrant Shares shall be deemed to have become
holder of record of such Warrant Shares as of the Date of Exercise of this
Warrant.
b. A "Date of Exercise" means the date on which the Company shall have
received (i) this Warrant (or any New Warrant, as applicable), with the
Form of Election to Purchase attached hereto (or attached to such New
Warrant) appropriately completed and duly signed, and (ii) payment of the
Exercise Price for the number of Warrant Shares so indicated by the Warrant
Holder to be purchased.
c. This Warrant shall be exercisable at any time and from time to time
for such number of Warrant Shares as is indicated in the attached Form of
Election To Purchase. If less than all of the Warrant Shares which may be
purchased under this Warrant are exercised at any time, the Company shall
issue or cause to be issued, at its expense, a New Warrant evidencing the
right to purchase the remaining number of Warrant Shares for which no
exercise has been evidenced by this Warrant.
d. (i) Notwithstanding anything contained herein to the contrary, but
in all events subject to Section 7 herein, the holder of this Warrant may,
at its election exercised in its sole discretion, exercise this Warrant in
whole or in part and, in lieu of making the cash payment otherwise
contemplated to be made to the Company upon such exercise in payment of the
Aggregate Exercise Price, elect instead to receive upon such exercise the
"NET NUMBER" of shares of Common Stock determined according to the
following formula (a "CASHLESS EXERCISE"):
Net Number = (A x (B - C))/B
(ii) For purposes of the foregoing formula:
A= the total number shares with respect to which this
Warrant is then being exercised.
B= the last reported sale price (as reported by Bloomberg)
of the Common Stock on immediately preceding the date
of the Exercise Notice.
C= the Warrant Exercise Price then in effect at the time
of such exercise.
e. The holder of this Warrant agrees not to elect for a period of one
(1) year a Cashless Exercise. The holder of this Warrant also agrees not to
elect a Cashless Exercise so long as there is an effective registration
statement for the shares underlying this Warrant.
6. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The character of the
shares of stock or other securities at the time issuable upon exercise of this
Warrant and the Exercise Price therefore, are subject to adjustment upon the
occurrence of the following events, and all such adjustments shall be
cumulative:
a. ADJUSTMENT FOR STOCK SPLITS, STOCK DIVIDENDS, RECAPITALIZATIONS,
ETC. The Exercise Price of this Warrant and the number of shares of Common
Stock or other securities at the time issuable upon exercise of this
Warrant shall be appropriately adjusted to reflect any stock dividend,
stock split, combination of shares, reclassification, recapitalization or
other similar event affecting the number of outstanding shares of stock or
securities.
b. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC. In case
of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in
which the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization (any such transaction being
hereinafter referred to as a "REORGANIZATION"), then, in each case, the
holder of this Warrant, on exercise hereof at any time after the
consummation or effective date of such Reorganization (the "EFFECTIVE
DATE"), shall receive, in lieu of the shares of stock or other securities
at any time issuable upon the exercise of the Warrant issuable on such
exercise prior to the Effective Date, the stock and other securities and
property (including cash) to which such holder would have been entitled
upon the Effective Date if such holder had exercised this Warrant
immediately prior thereto (all subject to further adjustment as provided in
this Warrant).
c. CERTIFICATE AS TO ADJUSTMENTS. In case of any adjustment or
readjustment in the price or kind of securities issuable on the exercise of
this Warrant, the Company will promptly give written notice thereof to the
holder of this Warrant in the form of a certificate, certified and
confirmed by the Board of Directors of the Company, setting forth such
adjustment or readjustment and showing in reasonable detail the facts upon
which such adjustment or readjustment is based.
7. MAXIMUM EXERCISE. The Holder shall not be entitled to exercise this
Warrant on an exercise date in connection with that number of shares of Common
Stock which would be in excess of the sum of (i) the number of shares of Common
Stock beneficially owned by the Holder and its affiliates on an exercise date,
and (ii) the number of shares of Common Stock issuable upon the exercise of this
Warrant with respect to which the determination of this limitation is being made
on an exercise date, which would result in beneficial ownership by the Holder
and its affiliates of more than 4.9% of the outstanding shares of Common Stock
on such date. For the purposes of the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and Regulation 13d-3 thereunder. Subject to
the foregoing, the Holder shall not be limited to aggregate exercises which
would result in the issuance of more than 4.9%.
8. FRACTIONAL SHARES. The Company shall not be required to issue or cause
to be issued fractional Warrant Shares on the exercise of this Warrant. The
number of full Warrant Shares that shall be issuable upon the exercise of this
Warrant shall be computed on the basis of the aggregate number of Warrants
Shares purchasable on exercise of this Warrant so presented. If any fraction of
a Warrant Share would, except for the provisions of this Section 8, be issuable
on the exercise of this Warrant, the Company shall, at its option, (i) pay an
amount in cash equal to the Exercise Price multiplied by such fraction or (ii)
round the number of Warrant Shares issuable, up to the next whole number.
9. NOTICE OF INTENT TO SELL OR MERGE COMPANY. The Company will give
Investor 90 days notice before entering into a transaction to merge or sell a
controlling interest in the Company.
10. NOTICE. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given (i) on the date they are
delivered if delivered in person; (ii) on the date initially received if
delivered by facsimile transmission followed by registered or certified mail
confirmation; (iii) on the date delivered by an overnight courier service; or
(iv) on the third business day after it is mailed by registered or certified
mail, return receipt requested with postage and other fees prepaid as follows:
If to the Company:
Entech Environmental Technologies, Inc.
0000 Xxxxx Xxxxxx, Xxxxx X000
Xxxxx Xxxxx, XX 00000
Tel: 000-000-0000
If to the Warrant Holder:
Xxxxxx Xxxxxx Xxxxxx
Managing Partner
Xxxxxx Partners LP
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx XX 00000
Tel: 000-000-0000
11. MISCELLANEOUS.
a. This Warrant shall be binding on and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. This
Warrant may be amended only in writing and signed by the Company and the
Warrant Holder.
b. Nothing in this Warrant shall be construed to give to any person or
corporation other than the Company and the Warrant Holder any legal or
equitable right, remedy or cause of action under this Warrant; this Warrant
shall be for the sole and exclusive benefit of the Company and the Warrant
Holder.
c. This Warrant shall be governed by, construed and enforced in
accordance with the internal laws of the State of New York without regard
to the principles of conflicts of law thereof.
d. The headings herein are for convenience only, do not constitute a
part of this Warrant and shall not be deemed to limit or affect any of the
provisions hereof.
e. In case any one or more of the provisions of this Warrant shall be
invalid or unenforceable in any respect, the validity and enforceablilty of
the remaining terms and provisions of this Warrant shall not in any way be
affected or impaired thereby and the parties will attempt in good faith to
agree upon a valid and enforceable provision which shall be a commercially
reasonably substitute therefore, and upon so agreeing, shall incorporate
such substitute provision in this Warrant.
f. The Warrant Holder shall not, by virtue hereof, be entitled to any
voting or other rights of a shareholder of the Company, either at law or
equity, and the rights of the Warrant Holder are limited to those expressed
in this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by the authorized officer as of the date first above stated.
Entech Environmental Technologies, Inc.
By:
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Xxxx X. Xxxxxxxx
President & CEO
FORM OF ELECTION TO PURCHASE
(To be executed by the Warrant Holder to exercise the right to purchase shares
of Common Stock under the foregoing Warrant)
To: Entech Environmental Technologies, Inc.:
In accordance with the Warrant enclosed with this Form of Election to Purchase,
the undersigned hereby irrevocably elects to purchase ______________ shares of
Common Stock ("Common Stock"), $0.001 par value, of Entech Environmental
Technologies, Inc. and encloses one warrant and $0.05 for each Warrant Share
being purchased or an aggregate of $________________ in cash or certified or
official bank check or checks, which sum represents the aggregate Exercise Price
(as defined in the Warrant) together with any applicable taxes payable by the
undersigned pursuant to the Warrant.
The undersigned requests that certificates for the shares of Common Stock
issuable upon this exercise be issued in the name of:
______________________________________
______________________________________
______________________________________
(Please print name and address)
______________________________________
(Please insert Social Security or Tax Identification Number)
If the number of shares of Common Stock issuable upon this exercise shall not be
all of the shares of Common Stock which the undersigned is entitled to purchase
in accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the shares
of Common Stock not issuable pursuant to the exercise evidenced hereby be issued
in the name of and delivered to:
______________________________________
______________________________________
______________________________________
(Please print name and address)
Dated: Name of Warrant Holder:
-------------------
(Print) ---------------------------------
(By:) ---------------------------------
(Name:) ---------------------------------
(Title:) ---------------------------------
Signature must conform in all respects to
name of Warrant Holder as specified on the
face of the Warrant
