Exhibit 10.33
Neither this Warrant nor the shares of Common Stock issuable on exercise of this
Warrant have been registered under the Securities Act of 1933. None of such
securities may be transferred in the absence of registration under such Act or
an opinion of counsel to the effect that such registration is not required.
IDM ENVIRONMENTAL CORP.
WARRANT
DATED:
Number of Shares:
Holder:
Address:
_______________________________
THIS CERTIFIES THAT from and after July 6, 1998 until February 11, 2001 the
Holder is entitled to purchase from IDM ENVIRONMENTAL CORP., a New Jersey
corporation (hereinafter called the "Company"), the number of shares of the
Company's common stock ("Common Stock") set forth above, at an exercise price
equal to $4.50 per share.
1. All rights granted under this Warrant shall expire on February 11, 2001.
2. Notwithstanding anything to the contrary contained herein, Holder shall not
have the right to exercise this Warrant so long as and to the extent that
at the time of such exercise, such exercise would cause the Holder then to
be the "beneficial owner" of five percent (5%) or more of the Company's
then outstanding Common Stock. For purposes hereof, the term "beneficial
owner" shall have the meaning ascribed to it in Section 13(d) of the
Securities Exchange Act of 1934. The opinion of legal counsel to Xxxxxx, in
form and substance satisfactory to the Company and the Company's counsel,
shall prevail in all matters relating to the amount of Holder's beneficial
ownership.
3. In the event the Company breaches its obligation to deliver irrevocable
instructions to its transfer agent as required under Section 13, then,
without limiting Holder's other rights and remedies, the Company shall
forthwith pay to the Holder an amount accruing at the rate of $1,000 per
day for each day of such breach for each 20,000 shares of common stock
subject to this Warrant, with pro rata payments for shares in an amount
less than 20,000.
4. This Warrant and the Common Stock issuable on exercise of this Warrant (the
"Underlying Shares") may be transferred, sold, assigned or hypothecated,
only if registered by the Company under the Securities Act of 1933 (the
"Act") or if the Company has received from counsel to the Company a written
opinion to the effect that registration of the Warrant or the Underlying
Shares is not necessary in connection with such transfer, sale, assignment
or hypothecation. The Warrant and the Underlying Shares shall be
appropriately legended to reflect this restriction and stop transfer
instructions shall apply. The Holder shall through its counsel provide such
information as is reasonably necessary in connection with such opinion.
5. The holder of this warrant is entitled to certain registration rights under
an Agreement dated of even date herewith (the "Lock-Up Agreement"). Upon
each permitted transfer of this Warrant after the registration statement
has been declared effective, the Company will within two business days
after receipt of notice thereof supplement the registration statement to
reflect the name of the transferee as a selling shareholder thereunder.
6. Any permitted assignment of this Warrant shall be effected by the Holder by
(i) executing a standard form of assignment, (ii) surrendering the Warrant
for cancellation at the office of the Company, accompanied by the opinion
of counsel to the Company referred to above; and (iii) unless in connection
with an effective registration statement which covers the sale of this
Warrant and or the shares underlying the Warrant, delivery to the Company
of a statement by the transferee (in a form acceptable to the Company and
its counsel) that such Warrant is being acquired by the Holder for
investment and not with a view to its distribution or resale; whereupon the
Company shall issue, in the name or names specified by the Holder
(including the Holder) new Warrants representing in the aggregate rights to
purchase the same number of Shares as are purchasable under the Warrant
surrendered. Such Warrants shall be exercisable immediately upon any such
assignment of the number of Warrants assigned. The transferor will pay all
relevant transfer taxes. Replacement warrants shall bear the same legend as
is borne by this Warrant.
7. The term "Holder" should be deemed to include any permitted record
transferee of this Warrant.
8. The Company covenants and agrees that all shares of Common Stock which may
be issued upon exercise hereof will, upon issuance, be duly and validly
issued, fully paid and non-assessable and no personal liability will attach
to the holder thereof. The Company further covenants and agrees that,
during the periods within which this Warrant may be exercised, the Company
will at all times have authorized and reserved a sufficient number of
shares of Common Stock for issuance upon exercise of this Warrant and all
other Warrants.
9. This Warrant shall not entitle the Holder to any voting rights or other
rights as a stockholder of the Company.
10. In the event that as a result of reorganization, merger, consolidation,
liquidation, recapitalization, stock split, combination of shares or stock
dividends payable with respect to such Common Stock, the outstanding shares
of Common Stock of the Company are at any time increased or decreased or
changed into or exchanged for a different number or kind of share or other
security of the Company or of another corporation, then appropriate
adjustments in the number and kind of such securities then subject to this
Warrant shall be made effective as of the date of such occurrence so that
the position of the Holder upon exercise will be the same as it would have
been had it owned immediately prior to the occurrence of such events the
Common Stock subject to this Warrant. Such adjustment shall be made
successively whenever any event listed above shall occur and the Company
will notify the Holder of the Warrant of each such adjustment. Any fraction
of a share resulting from any adjustment shall be eliminated and the price
per share of the remaining shares subject to this Warrant adjusted
accordingly.
11. The rights represented by this Warrant may be exercised at any time within
the period above specified by (i) surrender of this Warrant (with the
purchase form at the end hereof properly executed) at the principal
executive office of the Company (or such other office or agency of the
Company as it may designate by notice in writing to the Holder at the
address of the Holder appearing on the books of the Company); (ii) payment
to the Company of the exercise price for the number of Shares specified in
the above-mentioned purchase form together with applicable stock transfer
taxes, if any; and (iii) unless in connection with an effective
registration statement which covers the sale of the shares underlying the
Warrant, the delivery to the Company of a statement by the Holder (in a
form acceptable to the Company and its counsel) that such Shares are being
acquired by the Holder for investment and not with a view to their
distribution or resale.
12. Within two business days following each receipt by the Company of the
documents required to exercise all or any part of this Warrant as provided
in Section 12, the Company shall deliver irrevocable instructions to its
transfer agent (with a copy to Holder) to issue on an expedited basis
certificates evidencing the shares of common stock so purchased. Such
certificates shall bear appropriate restrictive legends in accordance with
applicable securities laws, but shall be unrestricted and bear no legends
once the registration statement referred to above has been declared
effective.
This Warrant shall be governed by and construed in accordance with the laws
of the State of New Jersey. The federal and state courts in the city of Newark,
New Jersey shall have exclusive jurisdiction over this instrument and the
enforcement thereof. Service of process shall be effective if by certified mail,
return receipt requested. All notices shall be in writing and shall be deemed
given upon receipt by the party to whom addressed. This instrument shall be
enforceable by decrees of specific performances well as other remedies.
IN WITNESS WHEREOF, IDM Environmental Corp. has caused this Warrant to be
signed by its duly authorized officers under Its corporate seal, and to be dated
as of the date set forth above.
IDM ENVIRONMENTAL CORP.
By:
--------------------------
a:/ms/lockupwarrant.idm/idm98
