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EXHIBIT 4.5
THIS WARRANT HAS BEEN ACQUIRED IN A TRANSACTION NOT INVOLVING ANY
PUBLIC OFFERING AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE TRANSFERRED (I) EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THIS
WARRANT OR (ii) EXCEPT PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION AND IN
COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS.
IN ADDITION, THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE HEREOF
ARE SUBJECT TO RESTRICTIONS ON SALE AS SET FORTH HEREIN.
No. W-
Void after 5:00 p.m. Eastern Standard Time, on ________________
WARRANT TO PURCHASE COMMON STOCK
EPL TECHNOLOGIES, INC.
This is to Certify that, FOR VALUE RECEIVED, _________________
or his permitted assigns under the terms hereof ("Holder"), is entitled to
purchase, subject to the provisions of this Warrant, from EPL TECHNOLOGIES,
INC., a Colorado corporation ("Company"), an aggregate of ____________ shares of
common stock, par value $0.001 per share, of the Company (the "Common Stock"),
at an exercise price equal to _____ dollar(s) (United States Dollars $_______ ),
per share, for each of such shares of Common Stock issuable under this Warrant,
at any time during the period of _________ to ___________, but not later than
5:00 p.m. Eastern Standard Time, on _______________, subject to modification and
adjustment as provided herein. The number of shares of Common Stock to be
received upon the exercise of this Warrant and the price to be paid may be
adjusted from time to time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares" and the exercise price of
a share of Common Stock in effect at any time and as adjusted from time to time
is hereinafter sometimes referred to as the "Exercise Price."
(a)(1) Cash Exercise. Subject to the provisions of
subsection (f) hereof, at the option of the Holder, this Warrant may be
exercised in whole or in part at any time or from time to time on or after
___________________, and until _______________ or, if either such day is a day
on which banking institutions in the State of New York are authorized by law to
close, then on the next succeeding day which shall not be such a day, by
presentation and surrender hereof to the Company at its principal office, or at
the office of its stock transfer agent, if any, with the Purchase Form annexed
hereto duly executed and accompanied by the Exercise Price, payable via
certified or official bank check or wire transfer payable to the Company or its
order. If this Warrant should be exercised in part only, and provided the
Warrant shall not have then expired, the Company
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shall, upon surrender of this Warrant for cancellation, execute and deliver a
new Warrant of like tenor and date evidencing the rights of the Holder thereof
to purchase the balance of the shares purchasable thereunder. Upon receipt by
the Company of this Warrant, accompanied by payment of the Exercise Price for
the number of shares for which this Warrant is being exercised, at its office,
or by the stock transfer agent of the Company at its office, in proper form for
exercise, the Holder shall be deemed to be the holder of record of the shares of
Common Stock issuable upon such exercise immediately prior to the close of
business on the date of such exercise, notwithstanding that the stock transfer
books of the Company shall then be closed or that certificates representing such
shares of Common Stock shall not then be actually delivered to the Holder;
provided, however, that if on such date the transfer books for the Common Stock
shall be closed, the certificates for the shares or other securities in respect
of which the Warrant has been exercised shall be issuable on the date on which
such books shall next be opened, and until such date, the Company shall be under
no obligation to deliver any certificates for such shares or other securities.
(a)(2) Cashless Exercise. Subject to the provisions of
subsection (f) hereof, at any time during the period of ______________ to
__________________, the Holder may, at its option, exchange this Warrant, in
whole or in part (a "Warrant Exchange"), into the number of shares of Common
Stock determined in accordance with this subsection (a)(2), by surrendering this
Warrant at the principal office of the Company or at the office of its transfer
agent, accompanied by a notice stating such Holder's intent to effect such
exchange, the number of shares of Common Stock to be exchanged and the date on
which the Holder requests that such Warrant Exchange occur (the "Notice of
Exchange"). The Warrant Exchange shall take place on the date specified in the
Notice of Exchange or, if later, the date the Notice of Exchange is received by
the Company (the "Exchange Date"). Certificates for the Warrant shares of Common
Stock issuable upon such Warrant Exchange and, if applicable, a new warrant of
like tenor evidencing the balance of the Shares remaining subject to this
Warrant, shall be issued as of the Exchange Date and delivered to the Holder
within three (3) days following the Exchange Date. In connection with any
Warrant Exchange, this Warrant shall represent the right to subscribe for and
acquire the number of shares of Common Stock (rounded to the next highest
integer) equal to (A) the number of shares of Common Stock specified by the
Holder in its Notice of Exchange (the "Total Share Number") less (B) the number
of shares of Common Stock equal to the quotient obtained by dividing (i) the
product of the Total Share Number and the applicable Exercise Price by (ii) the
average closing bid price of the Common Stock on the NASDAQ SmallCap Exchange
during the five (5) business days immediately preceding the Exchange Date.
The Company covenants and agrees that all shares of Common Stock
that may be issued upon the exercise of the rights represented by this Warrant
will, upon issuance, be validly issued, fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issuance thereof.
(b) Reservation of Shares. The Company hereby agrees
that at all times there shall be reserved for issuance and/or delivery upon
exercise of this Warrant such number of shares of its Common Stock as shall be
required for issuance and delivery upon exercise of this Warrant.
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(c) Fractional Shares. No fractional shares or script
representing 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 round up such fraction to the next whole number of
shares.
(d) Exchange, Transfer, Assignment or Loss of Warrant.
This Warrant is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its stock
transfer agent, if any, for other warrants of different denominations entitling
the Holder thereof to purchase in the aggregate the same number of shares of
Common Stock purchasable hereunder. The term "Warrant" as used herein includes
any Warrants into which this Warrant may be divided or exchanged. 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 upon
surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver a new Warrant of like tenor and date. Any such new Warrant
executed and delivered shall constitute an additional contractual obligation on
the part of the Company, whether or not this Warrant so lost, stolen, destroyed,
or mutilated shall be at any time be enforceable by anyone. This Warrant shall
not be transferable upon the transfer books of the Company with respect to
record ownership of this Warrant or the Warrant Shares until and unless any such
proposed transferee executes and delivers to the Company, in writing,
representations and warranties of the Holder under this Warrant comparable to
those set forth in paragraph (I) below and delivers to the Company an opinion of
counsel, satisfactory to the Company in its sole discretion, both as to the
issuer of the opinion and the substance of such opinion, that such transfer does
not require registration under the Securities Act and that such transfer is
exempt from any such registration under the Securities Act or any applicable
state securities laws.
(e) Rights of the Holder. The Holder shall not, by
virtue of holding this Warrant prior to any exercise of this Warrant, be
entitled to any rights of a shareholder in the Company either at law or equity,
including without limitation the right to vote or to receive dividends or be
deemed the holder of Common Stock that may at any time be issuable upon exercise
of the Warrant, for any purpose whatsoever, and the rights of the Holder are
limited to those expressed in this Warrant and are not enforceable against the
Company except to the extent set forth herein until such Holder shall have
exercised the Warrant and been issued shares of Common Stock in accordance with
the provisions hereof.
(f) Anti-Dilution Provisions. The Exercise Price and
the number and kind of securities purchasable upon the exercise of this Warrant
shall be subject to adjustment from time to time, but only upon the occurrence
of any of the events as hereinafter provided:
(I) In the event the Company shall issue
Common Stock as a dividend upon Common Stock or in payment of a dividend
thereon, the Exercise Price then in effect shall be proportionately decreased,
effective at the close of business on the record date for the determination of
stockholders entitled to receive the same (it being understood that any issuance
of Common Stock as a dividend on any class of the Company's preferred stock
shall have no effect on the Exercise Price);
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(ii) In the event the Company shall at any
time subdivide or combine its outstanding shares of Common Stock, by
reclassification or otherwise, the Exercise Price then in effect shall be
proportionately decreased or increased, as the case may be, effective
immediately after the effective date of such subdivision or combination; and
(iii) If any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with another corporation, or the sale of all or substantially all
of its assets to another corporation shall be effected, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provision shall be made whereby the Holder of each Warrant shall
thereafter have the right to purchase and receive upon the basis and upon the
terms and conditions specified in the Warrant and in lieu of the shares of the
Common Stock of the Company purchasable and receivable upon the exercise of the
rights represented by such Warrant, such shares of stock, securities or assets
as may be issued or payable with respect to or in exchange for a number of
outstanding shares of Common Stock equal to the number of shares of such Common
Stock purchasable and receivable upon the exercise of the rights represented by
such Warrant had such reorganization, reclassification, consolidation, merger or
sale not taken place, and in any such reorganization, reclassification,
consolidation, merger or sale, appropriate provision shall be made with respect
to the rights and interests of the Holder to the end that the provisions of the
Warrant (including, without limitation, provisions for adjustment of the
Exercise Price and of the number of shares issuable upon the exercise of the
Warrants) shall thereafter be applicable as nearly as may be in relation to any
shares of stock, securities, or assets thereafter deliverable upon exercise of
stock, securities, or assets thereafter deliverable upon exercise of Warrants.
The Company shall not effect any such consolidation, merger or sale, unless
prior to or simultaneously with the consummation thereof, the successor
corporation (if other than the Company) resulting from such consolidation or
merger or the corporation purchasing such assets shall assume, by written
instrument, the obligation to deliver to the Holder such shares of stock,
securities, or assets as, in accordance with the foregoing provisions, the
Holder may be entitled to purchase.
(iv) Upon each adjustment of the Exercise
Price pursuant to this Section (f), the number of shares of Common Stock
specified in each Warrant shall thereupon evidence the right to purchase that
number of shares of Common Stock (calculated to the nearest hundredth of a share
of Common Stock) obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Common Stock
purchasable immediately prior to such adjustment upon exercise of such Warrant
and dividing the product so obtained by the Exercise Price in effect after such
adjustment.
(v) Irrespective of any adjustments of the
number or kind of securities issuable upon exercise of Warrants or the Exercise
Price, Warrants theretofore or thereafter issued may continue to express the
same number of shares of Common Stock and Exercise Price as are stated in
similar Warrants previously issued.
(vi) The Company may retain the independent
public auditing firm regularly retained by the Company, or another firm of
independent public auditors of
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nationally recognized standing selected by the Company's Board of Directors, to
make any computation required under this Section (f) and a certificate signed by
such firm shall be conclusive evidence of any computation made under this
Section (f).
(vii) Whenever there is an adjustment in the
Exercise Price or in the number or kind of securities issuable upon exercise of
the Warrants, or both, as provided in this Section (f), the Company shall (A)
promptly file in the custody of its Secretary or Assistant Secretary a
certificate signed by the Chairman of the Board or the President or a Vice
President of the Company and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Company, showing in detail the facts
requiring such adjustment and the number and kind of securities issuable upon
exercise of each Warrant after such adjustment; and (B) cause a notice stating
that such adjustment has been effected and the Exercise Price then in effect and
the number and kind of securities issuable upon exercise of each Warrant to be
sent to each registered holder of a Warrant.
(viii) If an event occurs which is similar in
nature to the events described in this Section (f), but is not expressly covered
hereby, the Board of Directors of the Company shall make or arrange for an
equitable adjustment to the number of shares of Common Stock issuable pursuant
hereto and the Exercise Price. The Company further agrees, as a general matter,
(I) that it will not, by amendment of its Articles of Incorporation or through
reorganization, consolidation, merger, dissolution or sale of assets, or by any
other voluntary act, avoid or seek to avoid the observation of performance of
any of the covenants, stipulations or conditions to be observed or performed
hereunder by the Company, (ii) promptly to take all action as may from time to
time be required in order to permit the Holder to exercise this Warrant and the
Company duly and effectively to issue shares of its Common Stock or other
securities as provided herein upon the exercise hereof, and (iii) promptly to
take all action required or provided for herein to protect the rights of the
Holder granted hereunder against dilution.
(g) Notices To Warrant Holders. So long as this Warrant
shall be outstanding, (I) if the Company shall offer to the holders of the
Common Stock for subscription or purchase by them any share of any class or any
other rights or (ii) 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 or 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 mailed by certified mail to the Holder, at least fifteen (15) days prior
to the date specified in (x) or (y) below, as the case may be, a notice
containing a brief description of the proposed action and stating the date on
which (x) a record date is to be fixed for the purpose of such rights, or (y)
such reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place and the date, if any is
to be fixed, as of which the holders of Common Stock or other securities shall
receive cash or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, lease, dissolution,
liquidation or winding upon.
(h) Incidental Registration Rights. If the Company
proposes to file a registration statement with the Commission for a public
offering and sale of any equity securities issued by the Company (other than a
registration statement on Form S-8
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or Form S-4, or their successors, or any other form for a similar limited
purpose, or any registration statement covering only securities proposed to be
issued in exchange for securities or assets of another corporation) at any time
and from time to time, it will, prior to such filing, give written notice to the
Holder of its intention to do so and, upon written request of such Holder given
within 20 days after the Company provides such notice (which request shall state
the intended method of disposition of the Warrant Shares), the Company shall use
its best efforts to cause all of the Warrant Shares which the Company has been
requested by the Holder to register under the Act to the extent necessary to
permit their sale or other disposition in accordance with the intended methods
of distribution specified in the request of such Holder; provided that the
Company shall have the right to postpone or withdraw any registration effected
pursuant to this section without obligation to any Holder.
In connection with any registration under this
section involving an underwriting, the Company shall not be required to include
any Warrant Shares in such registration unless the Holder accepts the terms of
the underwriting as agreed upon between the Company and the underwriters
selected by it. If in the opinion of the managing underwriter it is appropriate
because of marketing factors to limit the number of Warrant Shares to be
included in the offering, or to exclude them altogether, then the Company shall
be required to include in the registration only that number of Warrant Shares,
if any, which the managing underwriter believes should be included therein;
provided that no persons or entities other than the Company, the Holder and
persons or entities holding registration rights shall be permitted to include
securities in the offering. If the number of Warrant Shares to be included in
the offering in accordance with the foregoing is less that the total number of
shares which the Holder has requested to be included, then the Holder and other
holders of securities entitled to include them in such registration shall
participate in the registration pro rata based upon their total ownership of
shares of common stock (giving effect to the conversion into shares of common
stock of all securities convertible thereunto). If any Holder would thus be
entitled to include more securities that such Holder requested to be registered,
the excess shall be allocated among other requesting holders pro rata in the
manner described in the preceding sentence. If the Holder disapproves of the
terms of any underwriting, it may elect to withdraw therefrom by written notice
to the Company and the managing underwriter. Any securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
(i) Covenants of the Company with respect to
Registration. The Company covenants and agrees as follows:
(A) The Company shall pay all costs, fees and
expenses in connection with any registration statement ("Registration
Statement") filed in relation to the Warrant Shares, including, without
limitation, the Company's legal and accounting fees and printing expenses.
(B) The Company will take all necessary action
which may be required in qualifying or registering the Warrant Shares included
in any Registration Statement.
(C) Any Holder, and its successors and
assigns, shall severally and not jointly, indemnify the Company, its officers
and directors and each
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person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, against all loss, claim or damage or
expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such Holder, or its successors or
assigns, for specific inclusion in such Registration Statement.
(D) Nothing contained in this Agreement shall
be construed as requiring the Holder to exercise his Warrants prior to the
initial filing of any Registration Statement or the effectiveness thereof.
(j) Governing Law. This Warrant shall be governed by
and construed in accordance with the laws of the State of New York, without
reference to principles of conflict of laws.
(k) Representations and Warranties of the Holder.
The Holder hereby represents and warrants to
the Company, intending that the Company rely on such representations and
warranties in issuing the Warrant and any Warrant Shares to the Holder, as
follows:
(A) The Holder is an "accredited
investor" as defined under the rules and regulations under the Securities Act
and is a sophisticated investor who is fully familiar with the nature of the
Company's business or, that the Company has previously acknowledged in writing
to the Holder that the Holder need not be an "accredited investor."
(B) The Holder understands that the
Warrants and the Warrant Shares have not been and will not, in connection with
the issuance of the Warrant to the Holder, be registered under the Securities
Act, are subject to substantial restrictions on transfer as set forth herein and
may not be sold or transferred absent such registration unless the Holder
provides the Company with an opinion of counsel which is satisfactory to the
Company (both as to the issuer of the opinion and the form and substance
thereof) that the Warrant or the Warrant Shares proposed to be transferred may
be transferred in reliance on an applicable exemption from the registration
requirements of the Securities Act and any other applicable securities laws.
(C) The Holder represents and
warrants that it is acquiring the Warrant for its own account, as principal, for
investment only and not with a view to resale or distribution and that it will
not sell or otherwise transfer any of the Warrant or the Warrant Shares, except
in accordance with applicable securities laws.
(D) The Holder represents and
warrants that it is able to bear the economic risk of losing its entire
investment in the Warrant and the Warrant Shares.
(E) Holder understands that the
Warrant and the Warrant Shares are being offered and sold in reliance on
specific exemptions from the registration requirements of United States federal
and state securities laws and that the
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Company and its controlling persons are relying upon the truth and accuracy of
the representations, warranties, agreements, acknowledgments and understandings
set forth in this Warrant to determine the applicability of such exemptions and
the suitability of the Holder to acquire the Warrant and the Warrant Shares.
(F) Holder represents and warrants
that the information set forth in this Warrant concerning the Holder is true and
correct.
(G) Holder acknowledges and
understands the meaning of the representations made by Holder in this Agreement
and hereby agrees to indemnify and hold harmless the Company and all persons
deemed to be in control of the Company from and against any and all loss, costs,
expenses, damages and liabilities (including, without limitation, court costs
and attorneys' fees) arising out of or due to a breach by the Holder of any such
representations. All representations set forth in subparagraphs (B), (C), (E)
and (G) shall survive the delivery of this Warrant and the purchase by the
Holder of the Warrant and any Warrant Shares.
EPL TECHNOLOGIES, INC.
By
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Name: Xxxxxxx X. Xxx
Title: Secretary
Dated: ______________
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