AMENDED AND RESTATED WARRANT CANCELLATION AND STOCK ISSUANCE AGREEMENT
Exhibit 4.25
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AMENDED
AND RESTATED WARRANT CANCELLATION
AND
STOCK ISSUANCE AGREEMENT
This
AMENDED AND RESTATED WARRANT CANCELLATION AND STOCK ISSUANCE
AGREEMENT (this “Agreement”) is made and
entered into as of January 9, 2017, by and between Xxxxxxx, Xxxxx
& Co. (“GS”), and Meridian Waste
Solutions, Inc., a New York corporation (the “Meridian”).
WHEREAS, pursuant
to that certain Amended and Restated Purchase Warrant for Common
Shares and Series C Shares, dated as of July 19, 2016, issued by
Meridian in favor of GS (the “Warrant”), Meridian
granted to GS the right to purchase from Meridian (i) a number
of shares of the common stock of Meridian, par value $0.025 per
share (the “Common
Shares”), measured as of the time of exercise of the
Warrant, equal to a 6.5% Percentage Interest less the number of
Common Shares (if any, at the applicable time of measurement) for
which the Aggregate Warrant Series C Shares are convertible, at an
aggregate purchase price equal to $449,553 and (ii) a number of
Series C Shares, measured as of the time of exercise of this
Warrant, equal to 6.5% of the total number of issued and
outstanding Series C Shares (the “Aggregate Warrant Series C
Shares”), at an aggregate purchase price equal to
$10.00, in each case, at any time on or before 5:00 P.M., New York,
New York time on December 22, 2023; and
WHEREAS, Meridian
and GS entered into that certain Warrant Cancellation and Stock
Issuance Agreement, dated December 9, 2016 (the “Original Agreement”);
and
In
consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
(a)
Meridian has all necessary corporate power and authority to execute
and deliver this Agreement and to perform its obligations
hereunder, and to consummate the transactions contemplated hereby.
The execution and delivery by Meridian of this Agreement, the
performance by Meridian of its obligations hereunder, and the
consummation by Meridian of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the
part of Meridian. This Agreement is duly and validly executed and
delivered by Meridian and, assuming the due authorization,
execution and delivery hereof by GS, constitutes a valid and
binding obligation of Meridian, enforceable against Meridian in
accordance with its terms.
(b) The
execution, delivery and performance by Meridian of this Agreement
and the consummation of the transactions contemplated hereby (with
or without the giving of notice, lapse of time or both): (i) will
not conflict with any provision of the certificate of
incorporation, bylaws or any other organizational documents of
Meridian; (ii) will not conflict with in any respect, violate,
result in a breach of, or constitute a default under any law, rule,
regulation or order to which Meridian is bound; (iii) do not
require the consent of any governmental authority or any other
person or entity under any governmental permit, authorization or
license or any contract or agreement to which Meridian is a party
or by which it or its assets are bound; (iv) will not conflict with
in any respect, constitute grounds for termination of, result in a
breach of, constitute a default under, give rise to any third
party’s right(s) of first refusal or similar right in respect
of or adversely affect the rights or obligations of any party
under, or accelerate or permit the acceleration of any performance
required by the terms of any such permit, authorization, license,
contract or agreement; or (v) result in the creation or imposition
of any lien or encumbrance of any kind against or upon any asset of
Meridian.
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(c) Meridian
is a New York corporation, validly existing and in good standing
under the laws of the State of New York and has all requisite
corporate power and authority to own, lease and operate its
property and to carry on its business as now being
conducted.
(d) The
Cancellation Shares, when issued and delivered in accordance with
the terms set forth in this Agreement, will be validly issued,
fully paid and non-assessable, but are subject to restrictions on
transfer under applicable federal and state securities laws and,
accordingly, any certificates therefor will bear a restrictive
legend reflecting the same.
(e) The
authorized capital stock of Meridian consists solely of 75,000,000
Common Shares, 51 shares of Series A Preferred Stock of Meridian,
par value $0.001 per share (“Preferred Series A”),
71,120 shares of Series B Preferred Stock of Meridian, par value
$0.001 per share (“Preferred Series B”),
67,361 shares of Series C Preferred Stock of Meridian, par value
$0.001 per share (“Preferred Series C”), and
4,861,468 shares of Blank Check Preferred Stock. As of the
date hereof, the Company’s issued and outstanding Equity
Securities consists solely of (i) 51 Preferred Series A
shares, (ii) 35,750 Preferred Series C shares,
(iii) 1,698,569 Common
Shares, (iv) the Warrant and (v) options to purchase 11,250
shares of common stock at $20.00 per share (the “Options”). As of the
closing of the Offering, the Company’s issued and outstanding
Equity Securities shall consist solely of (i) 51 Preferred
Series A shares, (ii) Common Shares issued as of the date of
the closing of the Offering (and taken into account in determining
the Cancellation Shares), (iii) the Cancellation Shares,
(iv) the Series C Conversion Shares, (v) the Options,
(vi) the Offering Shares and (vii) the Offering
Warrants.
“Equity Securities” means, as to
any Person, such Person’s equity securities or other equity
interests authorized from time to time, and any other securities,
options, interests, participations or other equivalents (however
designated) of or in such Person, whether voting or nonvoting,
including options, warrants, phantom equity, equity appreciation
rights, convertible notes or debentures, equity purchase rights,
and all agreements, instruments, documents and securities
convertible, exercisable, or exchangeable, in whole or in part,
into any one or more of the foregoing.
“Fully-Diluted Basis” means at any
time, without duplication, the sum of (i) the aggregate number
of Common Shares issued and outstanding, (ii) the aggregate
number of Common Shares issuable upon conversion or exercise of any
options, convertible securities or other Equity Securities
(excluding, however, the Offering Warrants) and (iii) the
aggregate number of Common Shares authorized for issuance pursuant
to Meridian’s incentive equity or similar plans. For the
avoidance of doubt, in determining the aggregate number of
Cancellation Shares, Fully-Diluted Basis shall include the Common
Shares issued and outstanding immediately prior to the Closing of
the Offering, the Offering Shares, the Series C Conversion Shares
and the Cancellation Shares.
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“Offering Shares” means the Common
Shares issued to the public in the Offering.
“Offering Warrants” means the
warrants to purchase Common Shares that are issued to the
purchasers of the Offering Shares.
“Qualified Offering” means the
Offering so long as the Offering (i) is consummated on or
prior to February 28, 2017, (ii) results in at least
$10 million of gross proceeds, net of the underwriting
discount and commissions, to the Company, (iii) results in the
Common Shares being listed on the New York Stock Exchange or
NASDAQ, (iv) whereby any Offering Warrants are issued
(a) on no greater than a 1:1 basis with the Offering Shares
(i.e., the Offering
Warrants are not exercisable for a number of Common Shares greater
than the number of Offering Shares) and (b) at a per share
exercise price at least equal to the per share price of the
Offering Shares and (v) pursuant to which 100% of the
Preferred Series C is converted to Common Shares, in each case,
unless otherwise agreed in advance by GS in its sole discretion in
a written instrument executed by a duly authorized officer of GS
after the date hereof.
“Series C Conversion Shares” means
the Common Shares issued to holders of Preferred Series C at the
closing of the Offering.
Unless
the context of this Agreement clearly requires otherwise,
references to the plural include the singular, references to the
singular include the plural, the term “including” is
not limiting, and the term “or” has, except where
otherwise indicated, the inclusive meaning represented by the
phrase “and/or.”
8.
Governing
Law. This
Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York (without regard
to the choice of law provisions thereof).
[Signature Pages Follow.]
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By: /s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Chief Executive Officer
XXXXXXX, XXXXX
& CO.
By: /s/ Xxxxxxx
Xxxx
Name:
Xxxxxxx Xxxx
Title:
Authorized Signatory
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5
SCHEDULE I
(attached)
6
EXHIBIT A
Form of Lock Up Agreement
(attached)
7