EXHIBIT 4.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 OR
QUALIFIED FOR DISTRIBUTION PURSUANT TO A PROSPECTUS UNDER THE SECURITIES
ACT (ONTARIO) OR THE SECURITIES ACT (QUEBEC). THIS WARRANT AND THE
SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAS BEEN OR WILL BE ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED TO RESIDENTS OF THE UNITED STATES WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE UNITED
STATES SECURITIES ACT OF 1933 OR TO RESIDENTS OF CANADA WITHOUT COMPLIANCE
WITH PROSPECTUS AND REGISTRATION REQUIREMENTS OF APPLICABLE PROVINCIAL
SECURITIES LAWS, UNLESS THERE IS AVAILABLE TO THE TRANSFEROR AN EXEMPTION
FROM SUCH REGISTRATION, AND/OR PROSPECTUS FILING AND REGISTRATION
REQUIREMENTS. THE FOLLOWING APPLIES ONLY TO HOLDERS RESIDENT IN CANADA:
UNLESS PERMITTED UNDER THE SECURITIES ACT (ONTARIO) OR THE SECURITIES ACT
(QUEBEC), A HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
RESIDENT IN CANADA SHALL NOT TRADE SUCH SECURITIES BEFORE THE EARLIER OF
(I) THE DATE THAT IS TWELVE MONTHS AND A DAY AFTER THE DATE THAT THE
COMPANY FIRST BECAME A REPORTING ISSUER IN ANY OF ALBERTA, BRITISH
COLUMBIA, MANITOBA, NOVA SCOTIA, ONTARIO, QUEBEC AND SASKATCHEWAN, IF THE
COMPANY IS A SEDAR FILER (AS DEFINED UNDER RULE 45-102 OF THE SECURITIES
ACT (ONTARIO)); AND (II) THE DATE THAT IS TWELVE MONTHS AND A DAY AFTER
THE LATER OF (A) MARCH 31, 2003 AND (B) THE DATE THAT THE COMPANY BECAME A
REPORTING ISSUER IN THE LOCAL JURISDICTION OF THE PURCHASER OF THE
SECURITIES THAT ARE THE SUBJECT OF THE TRADE. NOTWITHSTANDING THE
FOREGOING, A HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
RESIDENT IN QUEBEC SHALL NOT TRADE THE SECURITIES UNTIL THE CONDITIONS IN
SUBPARAGRAPH (II) ABOVE HAVE BEEN MET. THE COMPANY MAY REQUEST AN OPINION
OF COUNSEL AS TO THE AVAILABILITY OF ANY SUCH EXEMPTION."
WARRANT TO PURCHASE COMMON SHARES
OF
CAPITAL ENVIRONMENTAL RESOURCE INC.
VOID AFTER MARCH 31, 2008
This Warrant is issued to __________________________, or its registered
assigns (the "Holder") by Capital Environmental Resource Inc., an Ontario
corporation (the "Company"), on March 31, 2003 (the "Warrant Issue Date"). This
Warrant is issued pursuant to the terms of a Series 1 Preferred Subscription
Agreement, dated of even date herewith (the "Subscription Agreement"), by and
among the Company, the Holder and certain other Investors named therein. All
capitalized terms not otherwise defined herein shall have the meaning ascribed
thereto in the Subscription Agreement.
1. NUMBER OF SHARES SUBJECT TO WARRANT; EXERCISE PRICE. Subject to the
terms and conditions hereinafter set forth, the Holder is entitled, upon
surrender of this Warrant at the principal office of the Company, to purchase
from the Company, at a per share price equal to the Exercise Price, the Warrant
Stock.
For purposes of this Warrant: (A) "Warrant Stock" shall mean the number of
Shares purchasable upon exercise of this Warrant, which number of shares on the
date hereof is equal to 20% of the number of Series 1 Preferred Shares purchased
by the Holder pursuant to the Subscription Agreement and is subject to
adjustment as described in SECTION 7 below; (B) "Shares" shall mean fully paid
and non-assessable Common Shares of the Company, subject to change as described
in SECTION 7 below; (C) "Exercise Price" means U.S. $3.00 per share, subject to
change as described in SECTION 7 below, and (D) "Common Shares" means common
shares of the Company, as constituted on the date hereof, and following the US
Migration (as defined in SECTION 7(c) below), shall mean the common stock of the
ultimate parent company of the Company.
2. EXERCISE PERIOD. Except as otherwise provided for herein, this
Warrant shall be exercisable, in whole or in part, at any time and from time to
time beginning on the Shareholder Approval Date (as defined in the Subscription
Agreement) and ending at 5:00 p.m. eastern time on the fifth (5th) anniversary
of the Warrant Issue Date (the "Expiration Date"). Notwithstanding the
foregoing, if this Warrant is outstanding and exercisable for any Shares as of
the time of a Sale (as defined below), unless otherwise agreed to in writing by
the Holder, this Warrant shall be deemed automatically exercised immediately
prior to such Sale in accordance with the net exercise provisions of this
Warrant set forth in Section 4(b) below.
3. NOTICE OF SALE. The Company shall provide written notice to the
Holder not less than ten (10) days prior to the consummation of a Sale. A "Sale"
shall mean a sale of all or substantially all of the assets or shares of the
Company (and/or its parent company following the US Migration (as defined in
Section 7(c)), if existing) or a merger, reorganization or consolidation of the
Company (or instead its parent company following the US Migration (as defined in
Section 7(c)), if existing) in which the owners of the outstanding voting power
of the Company (or instead its parent company following the US Migration (as
defined in Section 7(c)), if existing), immediately prior to such transaction
own, directly or indirectly, less than 51% of the voting power of the resulting
or surviving entity immediately upon completion of such transaction.
4. METHOD OF EXERCISE.
(a) CASH EXERCISE. While this Warrant remains outstanding and
exercisable in accordance with SECTION 2 hereof, the purchase rights hereby
represented may be exercised in whole or in part, at the election of the Holder,
by the tender of the Notice of Exercise in substantially the form attached
hereto as EXHIBIT A and the surrender of this Warrant at the principal office of
the Company and by the payment to the Company in cash, by check, cancellation of
indebtedness or other form of payment acceptable to the Company, of an amount
equal to the then applicable Exercise Price multiplied by the number of Shares
then being purchased.
(b) NET EXERCISE. In lieu of exercising this Warrant pursuant to
Section 4(a), the Holder may elect to receive, without the payment by the Holder
of any additional consideration, Shares equal to the value of this Warrant (or
the portion thereof being canceled) by surrender of this Warrant at the
principal office of the Company together with an executed Notice of Exercise, in
substantially the form attached hereto, in which event the Company shall issue
to the holder hereof a number of Shares computed using the following formula:
2
Y (A - B)
-----------
X = A
Where: X = The number of Shares to be issued to the
Holder pursuant to this net exercise;
Y = The number of Shares in respect of which the net exercise
election under this SECTION 4(b) is made;
A = The fair market value of one Share at the time the net
issue election is made; and
B = The Exercise Price.
For purposes of this SECTION 4(b), the fair market value of a Share as of a
particular date shall be the closing sale price of the Shares on the trading
date immediately prior to the date of exercise as quoted on the Nasdaq Small Cap
Market or any United States automated quotation system or national securities
exchange on which the Shares are then quoted or traded, as applicable; provided,
that if the Shares are not then so quoted or traded, the fair market value of
the Shares shall be determined by the Board of Directors of the Company in its
reasonable discretion.
5. CERTIFICATES FOR SHARES. Upon the exercise of the purchase rights
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter (with appropriate
restrictive legends, as applicable). In the event of a partial exercise of the
Warrant, a new warrant or warrants (dated the date hereof) of like tenor,
calling in the aggregate on the face or faces thereof for the number of Shares
equal (without giving effect to any adjustment therein) to the number of Shares
called for on the face of this Warrant minus the number of such Shares purchased
by the Holder upon such exercise as provided in subsections 4(a) and 4(b) above.
6. ISSUANCE OF SHARES. The Company hereby covenants that it will take
all necessary actions to duly and validly reserve the necessary number of Shares
for issuance hereunder. The Company covenants that the Shares, when issued
pursuant to the exercise of this Warrant, will be duly and validly issued, fully
paid and non-assessable and free from all taxes, liens and charges with respect
to the issuance thereof.
7. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number of and
kind of securities purchasable upon exercise of this Warrant and the Exercise
Price shall be subject to adjustment from time to time as follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the Company
shall at any time after the date hereof and prior to the exercise or expiration
of this Warrant subdivide its Common Shares by split-up or otherwise, or combine
or issue additional Common Shares as a dividend with respect to its Common
Shares, the number of Shares issuable on the exercise of this Warrant shall
forthwith be proportionately increased in the case of a subdivision or stock
dividend, or proportionately decreased in the case of a combination. Appropriate
adjustments shall also be made to the Exercise Price, provided that the
aggregate exercise price payable hereunder for the total number of Shares
purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this SECTION 7(a) shall become effective at the close of
business on the date the subdivision or combination becomes effective, or as of
the record date of such dividend, or in the event that no record date is fixed,
upon the making of such dividend.
3
(b) RECLASSIFICATION, REORGANIZATION AND CONSOLIDATION. In the event
of any corporate reclassification, capital reorganization, consolidation,
spin-off or change in the Common Shares of the Company (other than as a result
of a subdivision, combination or dividend provided for in SECTION 7(a) above and
other than a transaction described in SECTION 7(c) BELOW), then, as a condition
of such event, lawful provision shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered, to the
Holder, so that the Holder shall have the right at any time prior to the
expiration of this Warrant to purchase, at a total price equal to that payable
upon the exercise of this Warrant, the kind and amount of shares of stock and/or
other securities and property receivable in connection with such event by a
holder holding the same number of shares for which this Warrant could have been
exercised immediately prior to such event. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
so that the provisions hereof shall thereafter be applicable with respect to any
shares of stock or other securities and property deliverable upon exercise
hereof, and appropriate adjustments shall be made to the Exercise Price,
provided that the aggregate exercise price payable hereunder for the total
number of Shares purchasable under this Warrant (as adjusted) shall remain the
same.
(c) MIGRATION INTO THE UNITED STATES. If the Company completes a
transaction pursuant to which the Company becomes a direct or indirect
subsidiary of a corporation incorporated in the United States (the "US
Migration"), this Warrant shall then become exercisable for the type of shares
into which the Shares have been converted or changed at the same exercise price
as provided for hereunder.
(d) NOTICE OF ADJUSTMENT. When any adjustment is required to be made
to the Exercise Price or in the number or kind of Shares purchasable upon
exercise of the Warrant, the Company shall promptly notify the Holder of such
event and of the adjusted Exercise Price or number of Shares or other securities
or property thereafter purchasable upon exercise of this Warrant.
8. ASSUMPTION OF WARRANT. If at any time while this Warrant, or any
portion thereof, is outstanding and unexpired there shall be a merger,
reorganization or consolidation of the Company or any other similar transaction
that does not constitute a Sale or US Migration, then, as a part of such
transaction, lawful provision shall be made so that the Holder shall thereafter
be entitled to receive upon exercise of this Warrant, during the period
specified herein and upon payment of the aggregate Exercise Price then in
effect, the number of shares of stock or other securities or property of the
successor corporation resulting from such transaction which a holder holding the
Shares deliverable upon exercise of this Warrant would have been entitled to
receive in such transaction if this Warrant had been exercised immediately
before such acquisition.
9. NO FRACTIONAL SHARES OR SCRIP. No fractional Shares or scrip
representing fractional Shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional Shares the Company shall make a cash
payment therefor on the basis of the fair market value of a Share determined in
accordance with SECTION 4.
10. NO SHAREHOLDER RIGHTS. Prior to exercise of this Warrant, the Holder
shall not be entitled to any rights of a shareholder with respect to the Shares,
including (without limitation) the right to vote such Shares, receive dividends
or other distributions thereon, exercise preemptive rights or be notified of
shareholder meetings, and such Holder shall not be entitled to any notice or
other communication concerning the business or affairs of the Company. However,
nothing in this SECTION 10 shall limit the right of the Holder to be provided
the notices required under this Warrant or the Subscription Agreement.
4
11. COMPLIANCE WITH SECURITIES ACT; TRANSFERABILITY OF WARRANT OR
SHARES.
(a) COMPLIANCE WITH SECURITIES ACT. The Holder, by acceptance
hereof, agrees that this Warrant, and the Shares issuable upon exercise of this
Warrant, are being acquired for investment and that such Holder will not offer,
sell or otherwise dispose of this Warrant, or any Shares issuable upon exercise
of this Warrant, except under circumstances which will not result in a violation
of the United States Securities Act of 1933, as amended (the "Securities Act"),
the Securities Act (Ontario), the Securities Act (Quebec) or any other
applicable provincial or state securities laws. This Warrant and all Shares
issued upon exercise of this Warrant (unless registered under the Securities Act
and any applicable state securities laws) shall be stamped or imprinted with a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 OR
QUALIFIED FOR DISTRIBUTION PURSUANT TO A PROSPECTUS UNDER THE
SECURITIES ACT (ONTARIO) OR THE SECURITIES ACT (QUEBEC). THESE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
TO RESIDENTS OF THE UNITED STATES WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE UNITED STATES SECURITIES ACT
OF 1933 OR TO RESIDENTS OF CANADA WITHOUT COMPLIANCE WITH PROSPECTUS
AND REGISTRATION REQUIREMENTS OF APPLICABLE PROVINCIAL SECURITIES
LAWS, UNLESS THERE IS AVAILABLE TO THE TRANSFEROR AN EXEMPTION FROM
SUCH REGISTRATION, AND/OR PROSPECTUS FILING AND REGISTRATION
REQUIREMENTS. [THE FOLLOWING APPLIES ONLY TO HOLDERS RESIDENT IN
CANADA: UNLESS PERMITTED UNDER THE SECURITIES ACT (ONTARIO) OR THE
SECURITIES ACT (QUEBEC), A HOLDER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE RESIDENT IN CANADA SHALL NOT TRADE SUCH SECURITIES
BEFORE THE EARLIER OF (I) THE DATE THAT IS TWELVE MONTHS AND A DAY
AFTER THE DATE THAT THE COMPANY FIRST BECAME A REPORTING ISSUER IN
ANY OF ALBERTA, BRITISH COLUMBIA, MANITOBA, NOVA SCOTIA, ONTARIO,
QUEBEC AND SASKATCHEWAN, IF THE COMPANY IS A SEDAR FILER (AS DEFINED
UNDER RULE 45-102 OF THE SECURITIES ACT (ONTARIO)); AND (II) THE DATE
THAT IS TWELVE MONTHS AND A DAY AFTER THE LATER OF (A) MARCH 31, 2003
AND (B) THE DATE THAT THE COMPANY BECAME A REPORTING ISSUER IN THE
LOCAL JURISDICTION OF THE PURCHASER OF THE SECURITIES THAT ARE THE
SUBJECT OF THE TRADE. NOTWITHSTANDING THE FOREGOING, A HOLDER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE RESIDENT IN QUEBEC SHALL
NOT TRADE THE SECURITIES UNTIL THE CONDITIONS IN SUBPARAGRAPH (II)
ABOVE HAVE BEEN MET. THE COMPANY MAY REQUEST AN OPINION OF COUNSEL AS
TO THE AVAILABILITY OF ANY SUCH EXEMPTION."]
(b) TRANSFERABILITY. Subject to compliance with applicable United
States federal, Canadian federal and provincial and state securities laws, this
Warrant and all rights hereunder are transferable in whole or in part by the
Holder to any person or entity upon written notice to the Company. The transfer
shall be recorded on the books of the Company upon the surrender of this
Warrant, properly
5
endorsed for transfer by delivery of an Assignment Form in substantially the
form attached hereto as EXHIBIT B, to the Company at the address set forth in
SECTION 15 hereof, and the payment to the Company of all transfer taxes and
other governmental charges imposed on such transfer. In the event of a partial
transfer, the Company shall issue to the holders one or more appropriate new
warrants.
12. RESTRICTED SECURITIES. The Holder understands that this Warrant, and
the Shares issuable upon exercise of this Warrant, will not be registered at the
time of their issuance under the Securities Act for the reason that the sale
provided for in this Agreement is exempt pursuant to Section 4(2) of the
Securities Act based on the representations of the Holder set forth herein. The
Holder acknowledges that this Warrant and the Shares issuable upon exercise of
the Warrant are/will be issued under an exemption from the prospectus filing and
registration requirements of the Securities Act (Ontario) and the Securities Act
(Quebec) and that the resale or other disposition of all or any part of such
securities will be restricted by the Securities Act (Ontario) and the Securities
Act (Quebec). The Holder represents that it is experienced in evaluating
companies such as the Company, has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of its
investment, and has the ability to suffer the total loss of the investment. The
Holder further represents that it has had the opportunity to ask questions of
and receive answers from the Company concerning the terms and conditions of this
Warrant, the business of the Company, and to obtain additional information to
such Holder's satisfaction. The Holder further represents that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act and within the meaning of Rule 45-501 under the Securities Act (Ontario),
each as presently in effect. The Holder further represents that this Warrant is
being acquired for the account of the Holder for investment only and not with a
view to, or with any intention of, a distribution or resale thereof, in whole or
in part, or the grant of any participation therein.
13. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the Holder
hereof and their respective successors and assigns, except as limited herein.
14. AMENDMENTS AND WAIVERS. Any term of this Warrant may be amended, and
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), upon the
written consent of the Company and the Holder.
15. NOTICES. All notices required under this Warrant shall be deemed to
have been given or made for all purposes (i) upon personal delivery, (ii) upon
confirmation receipt that the communication was successfully sent to the
applicable number if sent by facsimile, (iii) one day after being sent, when
sent by professional overnight courier service, or (iv) five days after posting
when sent by registered or certified mail. Notices to the Company shall be sent
to the address of the Company set forth below (or at such other place as the
Company shall notify the Holder hereof in writing) and notices to the Holder
shall be sent to the address of the Holder set forth on the signature page
hereto (or at such other place as the Holder shall notify the Company hereof in
writing):
To the Company: Capital Environmental Resource Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX X0X 0X0
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
6
16. Captions. The section and subsection headings of this Warrant are
inserted for convenience only and shall not constitute a part of this Warrant in
construing or interpreting any provision hereof.
17. GOVERNING LAW. This Warrant shall be governed by the laws of the
state of Delaware, without regard to the choice or conflict of laws principles
thereof.
[Signature page follows]
7
IN WITNESS WHEREOF, the undersigned have caused this Warrant to be
duly executed as of the date first set forth above.
COMPANY
CAPITAL ENVIRONMENTAL RESOURCE INC.
By:
------------------------------------------------
Name:
Title:
HOLDER
SIGNED, SEALED AND DELIVERED
In the presence of :
By:
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Witness Name:
Title:
Address:
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