AMENDED AND RESTATED WARRANT CANCELLATION AND STOCK ISSUANCE AGREEMENT
Exhibit 4.25
|
|
AMENDED
AND RESTATED WARRANT CANCELLATION
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”).
RECITALS
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
has filed with the Securities and Exchange Commission on September
9, 2016, a Registration Statement on Form S-1 for an underwritten
offering of Meridian’s common stock (the “Offering”);
and
WHEREAS, in
connection with the Offering, and conditioned upon the closing of a
Qualified Offering and the other terms of this Agreement, the
parties desire to cancel the Warrant in accordance with and subject
to the terms and conditions contained herein, and in exchange for
agreeing to so terminate its rights under the Warrant, GS shall
receive the number of Common Shares and entry into the Registration
Rights Agreement, in each case, as described herein;
and
WHEREAS, Meridian
and GS entered into that certain Warrant Cancellation and Stock
Issuance Agreement, dated December 9, 2016 (the “Original Agreement”);
and
WHEREAS, Meridian
and GS desire to amend and restate the Original Agreement to extend
the deadline for the closing of the Offering, upon which the
transactions thereunder and hereunder are conditioned, from
December 31, 2016 until February 28, 2017.
AGREEMENT
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:
1. Cancellation
of Warrant. Effective upon, (i) the closing of a Qualified
Offering; (ii) Meridian executing and delivering to GS a
counterpart signature to the Registration Rights Agreement,
substantially on terms provided to GS under the Warrant (the
“Registration Rights
Agreement”), provided that such Registration Rights
Agreement and all rights thereunder shall be subject to the Lock-Up
Agreement, (iii) the contemporaneous issuance by Meridian to GS of
the Cancellation Shares (as defined below), (iv) the
representations and warranties of Meridian being true and correct
in all respects and (v) the other terms set forth herein (the
“Effective
Time”), the Warrant and all rights and obligations of
GS thereunder, shall automatically and without further action be
cancelled and terminated in their entirety and be of no further
force or effect and Meridian shall reflect such cancellation of the
Warrant in its corporate books.
2. Issuance
of Stock. At the Effective Time, Meridian shall issue to GS
a number of Common Shares equal to 6.5% of the aggregate number of
Common Shares outstanding immediately following the closing of the
Offering (for the avoidance of doubt, inclusive of the Cancellation
Shares), on a Fully-Diluted Basis (as defined herein below), and
Meridian shall reflect such issuance of the Cancellation Shares in
its corporate books and cause its transfer agent to issue the
Cancellation Shares. An illustrative example of the calculation of
the Cancellation Shares is set forth on Schedule I hereto.
3. Lock
Up. At or prior to the Effective Time, subject to and in
accordance with the provisions of this Agreement, GS shall be
required to execute and deliver a Lock Up Agreement (the
“Lock
Up”), substantially in the form attached hereto as
Exhibit
A.
4.
Representations and
Warranties of Meridian. Meridian hereby represents and
warrants to GS that as of the date hereof:
(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.
2
(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.
5. Definitions.
As used herein, unless the context otherwise requires, the
following terms have the respective meanings set forth below. All
capitalized terms used and not defined below or otherwise defined
herein shall have the respective meanings set forth in the
Warrant:
“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.
3
“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.”
6. Counterparts.
This Agreement may be signed in any number of counterparts, each of
which shall be deemed to be an original, with the same effect as if
the signatures on each counterpart were upon the same instrument.
Facsimile signatures or signatures received as a pdf attachment to
electronic media shall be treated as original signatures for all
purposes hereunder.
7. Effectiveness.
This Agreement shall be a binding obligation of the parties as of
the date hereof but shall not be effective until the Effective
Time; provided,
that, prior to the Effective Time GS will continue to have all
rights provided in the Warrant. This Agreement shall automatically
terminate and be void ab
initio without further action if a Qualified Offering is not
consummated on or prior to February 28, 2017 (or if the Offering is
consummated and the Offering does not constitute a Qualified
Offering).
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.]
4
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
|
|
By: /s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Chief Executive Officer
XXXXXXX, XXXXX
& CO.
By: /s/ Xxxxxxx
Xxxx
Name:
Xxxxxxx Xxxx
Title:
Authorized Signatory
|
5
SCHEDULE I
(attached)
6
EXHIBIT A
Form of Lock Up Agreement
(attached)
7
