Exhibit 10.3
Warrant Number 96-18
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NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER ANY STATE SECURITIES LAWS, AND THIS WARRANT CANNOT BE
EXERCISED, SOLD OR TRANSFERRED, AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT CANNOT BE SOLD OR TRANSFERRED, UNLESS AND UNTIL THEY
ARE SO REGISTERED OR UNLESS AN EXEMPTION IS THEN AVAILABLE.
Date: December 2, 0000 Xxxxxxx to Subscribe
for 8,970 Shares
EASTERN ENVIRONMENTAL SERVICES, INC.
Warrant
To Subscribe for and Purchase
Common Stock of
EASTERN ENVIRONMENTAL SERVICES, INC.
THIS CERTIFIES that, for value received, Xxxxx X. Xxxxxx, or her registered
assigns ("Holder"), is entitled to subscribe for and purchase from EASTERN
ENVIRONMENTAL SERVICES, INC., a Delaware corporation ("Company"), at an exercise
price per share of $9.375 (initially and as adjusted, if at all, pursuant to the
terms and conditions of this Warrant, the "Exercise Price"), 8,970 fully paid
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and nonassessable shares of Company's common stock, par value $.01 per share
(the "Common Stock"). This Warrant may be exercised, in whole or in part, by
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Holder at any time commencing immediately after delivery of this Warrant by the
Escrow Agent to Holder, pursuant to the terms and conditions of the Escrow
Agreement, and prior to and including 5:00 p.m. Eastern time on the fifth
anniversary of the date hereof.
This Warrant is subject to the following provisions, terms and conditions:
1. Exercise; Payment. The rights represented by this Warrant may be
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exercised by Holder, in whole or in part, by the surrender of this Warrant at
the principal office of Company properly endorsed and accompanied by payment to
Company of the Exercise Price for that number of shares of Common Stock sought
to be purchased (the "Exercised Shares"), in the manner provided below. Company
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agrees that (a) shares purchased upon exercise of this
Warrant shall be and are deemed to be issued to Holder as the record owner of
such shares as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for such shares as provided herein, and
(b) certificates for the shares of stock so purchased shall be delivered to
Holder as promptly as reasonably practicable following any exercise of this
Warrant, and unless this Warrant shall have been exercised in full, or shall
have expired, a new Warrant representing the number of shares with respect to
which this Warrant shall not yet have been exercised, shall also be delivered to
Holder.
Holder may pay the Exercise Price for any Exercised shares in one or a
combination of the following methods:
(a) By delivering cash, check, money order or wire transfer of funds to the
Company in the amount of the Exercise Price of the Exercised Shares; or
(b) By surrendering to the Company shares of Common Stock having a Fair
Market Value (as measured on the date of exercise of the Exercised Shares) equal
to the Exercise Price of the Exercised Shares.
2. Shares to be Fully Paid; Reservation. Company covenants and agrees
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that all shares which may be issued upon the exercise of the rights represented
by this Warrant will, upon issuance and payment therefor in accordance with
Section 1 above, be fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issue thereof; and without limiting the
generality of the foregoing, Company covenants and agrees that it will from time
to time take all such action as may be required to assure that the par value per
share of the Common Stock is at all times equal to or less than the then
effective Exercise Price per share of Common Stock issuable pursuant to this
Warrant. Company further covenants and agrees that when the rights represented
by this Warrant may be exercised, Company will at all times thereafter have
authorized, and reserved for the purpose of issue or transfer upon exercise of
the subscription rights evidenced by this Warrant, a sufficient number of shares
of its Common Stock to provide for the exercise of the rights represented by
this Warrant.
3. Protection Against Dilution.
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(a) In the event at any time or from time to time, all holders of
Common Stock (or any other shares of stock or other securities at that time
receivable upon exercise of this Warrant) shall have received, other or
additional or less Common Stock without payment therefor (whether through a
dividend in stock or any class of stock of Company or any other corporation, or
through stock split, spinoff, split-off, reclassification, combination of
shares or otherwise) (a "Distribution"), then, and in each such case, Holder
upon the exercise of this Warrant and payment of the Exercise Price provided
above, shall be entitled to receive, in addition to the shares called for under
this Warrant, the shares or other securities to which Holder would have been
entitled in the Distribution if Holder had exercised this Warrant immediately
prior thereto. In case of the partial exercise of this Warrant under such
circumstances, the number of shares of stock or other securities which would
have been receivable upon the full exercise of this Warrant, and the Exercise
Price payable therefor computed as provided above, shall be proportionately
reduced.
(b) In case of any reorganization of Company, or any other corporation
the stock or securities of which are at the time deliverable on the exercise of
this Warrant, or in case Company or such other corporation shall consolidate
with or merge into another corporation, or convey all or substantially all of
its assets to another corporation, or liquidate, Holder, upon the exercise
hereof and upon the payment of the Exercise Price provided above, shall be
entitled to receive, in lieu of the shares called for under this Warrant, the
stock or other securities to which Holder would have been entitled upon the
consummation of such reorganization, consolidation, merger, conveyance, or
liquidation if Holder had purchased the shares called for hereby immediately
prior thereto; and in such case, the provisions of this Warrant shall be
applicable to the shares of stock or other securities thereafter deliverable
upon the exercise of this Warrant. In the case of the partial exercise of this
Warrant under such circumstances, the number of shares of stock or other
securities which would have been receivable upon the full exercise of this
Warrant, and the Exercise Price payable therefor, shall be proportionately
reduced.
4. No Rights as Shareholder. Until the valid exercise of this Warrant,
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the holder hereof shall not be entitled to any voting right or other rights as a
shareholder of Company with respect to this Warrant.
5. Transfer of Warrants. Subject to Section 7 hereof, this Warrant and
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all rights hereunder are transferable, in whole or in part, without charge to
the Holder, at the office or agency of Company referred to in Section 1 by the
Holder in person or by duly authorized attorney, upon surrender of this Warrant
properly endorsed. Each taker and holder of this Warrant, by taking or holding
the same, consents and agrees that this Warrant, when endorsed in blank, shall
be deemed negotiable, and that the holder hereof, when this Warrant shall have
been so endorsed, may be treated by Company and all other persons dealing with
this Warrant as the absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented by this Warrant, or to the transfer
hereof on the books of Company, any notice to the
contrary notwithstanding; but until such transfer on such books, Company may
treat the registered holder hereof as the owner for all purposes.
6. Fractional Interests. Company shall not be required to issue
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fractional shares of Common Stock upon the exercise of this Warrant. If any
fraction of a share of Common Stock would, except for the provisions of this
Section 6, be issuable upon the exercise of this Warrant (or specified portion
thereof), Company shall pay an amount in cash equal to the Fair Market Value (as
defined below) of such fraction of a Common Share on the business day prior to
the date of such exercise. As used in this Agreement, the "Fair Market
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Value" of the Common Stock shall be the closing price of the Common Stock on the
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date of determination on the principal stock market or quotation system on which
the Common Stock is then traded; provided, however, if the Common Stock is not,
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as of the date of determination of the Fair Market Value, traded on a recognized
public trading market or quoted on a recognized quotation system, then the Fair
Market Value shall be determined by Company on the basis of such valuation as
it considers appropriate.
7. Compliance With Securities Laws. By acquiring this Warrant from
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Company on the date hereof, the Holder hereby agrees, acknowledges, covenants,
represents and warrants as follows:
(a) This Warrant and the shares of Common Stock issuable upon exercise
hereof have not been registered under the Securities Act of 1933, as amended
(the "Securities Act"), or qualified or registered under any state securities
laws which may be applicable. Holder understands that this Warrant and such
shares of Common Stock have been and will be issued and sold hereunder in
transactions exempt from the registration or qualification requirements of the
Securities Act and applicable state securities laws and Holder acknowledges that
reliance on and the availability of said exemptions is predicated in part on the
accuracy of Holder's representations and warranties herein.
(b) Holder represents and warrants that it is acquiring this Warrant
for its own account, for purposes of investment, and not with a view to, or for
sale in connection with, any distribution thereof within the meaning of the
Securities Act and the rules and regulations promulgated thereunder. Holder
represents, warrants and agrees that it will not sell, exercise, transfer or
otherwise dispose of this Warrant (or any interest therein) or any of the Common
Stock purchasable upon exercise hereof, except pursuant to (i) an effective
registration statement under the Securities Act and applicable state securities
laws or (ii) an opinion of counsel, satisfactory to Company, that an exemption
from registration under the Securities Act and such laws is available. Holder
further acknowledges and agrees that Company
is not required, legally or contractually, so to register or qualify the Warrant
or such Common Stock or to take any action to make such an exemption available.
Holder understands that Company will be relying upon the truth and accuracy of
the representations and warranties contained in this Section 7 in issuing this
Warrant and such Common Stock without first registering the issuance thereof
under the Securities Act or qualifying or registering the issuance thereof under
any state securities laws that may be applicable.
(c) Holder acknowledges that (i) there is not now, and there will not
be in the future, any public market for the Warrant, (ii) although there
currently is a public trading market for the Common Stock, there can be no
assurance that any such market will be sustained, and (iii) there can be no
assurance that Holder will be able to liquidate its investment in Company.
Holder represents and warrants that it is familiar with and understands the
terms and conditions of Rule 144 promulgated under the Securities Act.
(d) Holder represents and warrants to Company that (i) it has such
knowledge and experience in financial and business matters as is necessary to
enable it to evaluate the merits and risks of any investments in Company and is
not utilizing any other person to be a purchaser representative in connection
with evaluation of such merits and risks; and (ii) it has no need for liquidity
in an investment in Company and is able to bear the risk of that investment for
an indefinite period and to afford a complete loss thereof.
(e) Holder represents and warrants that it has had access to, and has
been furnished with, all of the information it has requested from Company and
has had an opportunity to review the books and records of Company and to discuss
with management and members of the board of directors of Company the business
and financial affairs of Company.
(f) Holder agrees that at the time of each exercise of this Warrant,
unless the issuance of shares of Common Stock issuable thereupon is pursuant to
an effective registration statement under the Securities Act, Holder will
provide Company with a letter embodying the representations and warranties set
forth in subsections (b) through (e), in form and substance satisfactory to
Company, and agrees that the certificate(s) representing any shares issued to it
upon any exercise of this Warrant may bear such restrictive legend as Company
may deem necessary to reflect the restricted status of such shares under the
Securities Act unless Company shall have received from Holder an opinion of
counsel to Holder, reasonably satisfactory in form and substance to Company,
that such restrictive legend is not required. If such legend is placed on such
certificate(s), before consenting
to the removal of such legend and the transfer of such shares, unless the
request to remove such legend is made in connection with a sale or transfer of
the shares represented by such certificate in a transaction registered under
Section 5 of the Securities Act, Company may insist upon the delivery to it of
an opinion from counsel to Holder, reasonably satisfactory in form and substance
to Company, that the contemplated transfer does not constitute a violation of
the Securities Act.
8. Notice. Company covenants and agrees to give notice in writing to
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Holder at least 10 days prior to (or, if later, then as soon as reasonably
practicable prior to) any action contemplated which would affect the per share
Exercise Price, or number of shares purchasable upon exercise of this Warrant;
provided, however, any failure of Company to provide such notice shall not
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affect the validity of any action by Company. Any notice, request or other
communication provided for under this Warrant shall be given in writing,
delivered by hand, by overnight United States Mail, return receipt requested,
postage prepaid, or through a reputable courier service (such as Federal
Express) and shall be addressed to Company or to the Holder at the address shown
below, unless notice of a change in address is furnished in accordance with this
paragraph:
If to Company:
Eastern Environmental Services, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Attn: Chief Financial Officer
If to Holder:
Xxxxx X. Xxxxxx
0000 Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
9. Descriptive Headings and Governing Law. The descriptive headings of
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the several paragraphs of this Warrant are inserted for convenience only and do
not constitute a part of this Warrant. This Warrant is being delivered and is
intended to be performed in the State of New Jersey and shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of such state.
IN WITNESS WHEREOF, Eastern Environmental Services, Inc. has caused this
Warrant to be signed by its duly authorized officers under its corporate seal,
this 2 day of December 1996.
EASTERN ENVIRONMENTAL SERVICES, INC.
By: \s\Xxxxxx X. Xxxxxx
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Title: Secretary
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Print Name: Xxxxxx X. Xxxxxx
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ELECTION TO PURCHASE
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The undersigned Holder hereby irrevocable elects to exercise the within
Warrant to purchase (___________)* Shares of Common Stock issuable upon exercise
thereof to and requests that certificates for such Shares be issued in
his/her/its name and delivered to him/her/it at the following
address:
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.
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Date:
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Signature(s)**
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* If the Warrant is to be exercised or transferred in its entirety, insert the
word "All" before "Shares"; otherwise insert the number of shares then
purchasable on the exercise thereof as to which transferred or exercised. If
such Warrants shall not be transferred or exercised to purchase all shares
purchasable upon exercise thereof, that a new Warrant to purchase the balance of
such shares be issued in the name of, and delivered to, the Holder at the
address stated below.
** Signature(s) must conform exactly to the name(s) of the Holder as set forth
on the first page of this Warrant.
ASSIGNMENT
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers the
within Warrant to the extent of (________)* Shares purchasable upon exercise
thereof to ____________________________, whose address is
_________________________________________________ and hereby irrevocably
constitute and appoint ____________________ his/her/its Attorney to transfer
said Warrant on the book of the Company, with full power of substitution.
Date:
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Signature(s)**
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* If the Warrant is to be exercised or transferred in its entirety, insert the
word "All" before "Shares"; otherwise insert the number of shares then
purchasable on the exercise thereof as to which transferred or exercised. If
such Warrants shall not be transferred or exercised to purchase all shares
purchasable upon exercise thereof, that a new Warrant to purchase the balance of
such shares be issued in the name of, and delivered to, the Holder at the
address stated below.
** Signature(s) must conform exactly to the name(s) of the Holder as set forth
on the first page of this Warrant.
