EXHIBIT 4.7
THIS SECURITY HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF
1933 (THE "ACT") OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED OR
SOLD UNLESS REGISTERED AND QUALIFIED PURSUANT TO THE APPLICABLE PROVISIONS OF
FEDERAL AND STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION
OR QUALIFICATION APPLIES. THEREFORE, NO SALE OR TRANSFER OF THIS SECURITY SHALL
BE MADE, NO ATTEMPTED SALE OR TRANSFER SHALL BE VALID, AND THE ISSUER SHALL NOT
BE REQUIRED TO GIVE ANY EFFECT TO ANY SUCH TRANSACTION UNLESS (A) SUCH
TRANSACTION HAS BEEN DULY REGISTERED UNDER THE ACT AND QUALIFIED OR APPROVED
UNDER APPROPRIATE STATE SECURITIES LAWS, OR (B) THE ISSUER HAS FIRST RECEIVED AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH REGISTRATION,
QUALIFICATION OR APPROVAL IS NOT REQUIRED.
WARRANT
For the Purchase of Shares of Common Stock of
ENVIRONMENTAL SERVICE PROFESSIONALS, INC.
A NEVADA CORPORATION
No. ___ Date: ________________
Warrant to Purchase
_________________________
Shares of Common Stock
THIS IS TO CERTIFY, that, for value received, _________________ or registered
assigns (the "Holder"), is entitled, subject to the terms and conditions
hereinafter set forth, on or after the date hereof, and at any time prior to 5
P.M., Pacific Time ("PT") on ________________ to purchase such number of shares
of Common Stock, par value $_______ per share ("Common Stock" or the "Shares"),
of Environmental Service Professionals, Inc., a Nevada corporation (the
"Company"), from the Company as set forth above and upon payment to the Company
of an amount of $_______ per Share (the "Purchase Price"), if and to the extent
this Warrant is exercised, in whole or in part, during the period this Warrant
remains in force, subject in all cases to adjustment as provided in Section 2
hereof, and to receive a certificate or certificates representing the Shares so
purchased, upon presentation and surrender to the Company of this Warrant, with
the form of Subscription Agreement attached hereto, including changes thereto
reasonably requested by the Company, duly executed and accompanied by payment of
the Purchase Price of each Share.
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SECTION 1.
TERMS OF THIS WARRANT
1.1 TIME OF EXERCISE. This Warrant may be exercised at any time and
from time to time after 9:00 A.M., PT, on the date hereof (the "Exercise
Commencement Date"), until 5 P.M., PT, on __________________ (the "Expiration
Time") at which time this Warrant shall become void and all rights hereunder
shall cease.
1.2 MANNER OF EXERCISE.
(1) 1.2.1 The Holder may exercise this Warrant, in whole or in
part, upon surrender of this Warrant, with the form of Subscription
Agreement attached hereto duly executed, to the Company at its
corporate office in California, and upon payment to the Company of the
full Purchase Price for each Share to be purchased in lawful money of
the United States, or by certified or cashier's check, or wired funds,
and upon compliance with and subject to the conditions set forth
herein.
(2) 1.2.2 Upon receipt of this Warrant with the form of
Subscription Agreement duly executed and, if applicable, accompanied by
payment of the aggregate Purchase Price for the Shares for which this
Warrant is then being exercised, the Company shall cause to be issued
certificates for the total number of whole Shares for which this
Warrant is being exercised in such denominations as are required for
delivery to the Holder, and the Company shall thereupon deliver such
certificates to the Holder or its nominee.
1.2.3 In case the Holder shall exercise this Warrant with
respect to less than all of the Shares that may be purchased under this
Warrant, the Company shall execute a new Warrant for the balance of the
Shares that may be purchased upon exercise of this Warrant and deliver
such new Warrant to the Holder.
1.2.4 The Company covenants and agrees that it will pay when
due and payable any and all taxes which may be payable in respect of
the issue of this Warrant, or the issue of any Shares upon the exercise
of this Warrant. The Company shall not, however, be required to pay any
tax which may be payable in respect of any transfer involved in the
issuance or delivery of this Warrant or of the Shares in a name other
than that of the Holder at the time of surrender, and until the payment
of such tax the Company shall not be required to issue such Shares.
1.3 EXCHANGE OF WARRANT. This Warrant may be divided into, combined
with or exchanged for another Warrant or Warrants of like tenor to purchase a
like aggregate number of Shares. If the Holder desires to divide, combine or
exchange this Warrant, he shall make such request in writing delivered to the
Company at its corporate office and shall surrender this Warrant and any other
Warrants to be so divided, combined or exchanged. The Company shall execute and
deliver to the person entitled thereto a Warrant or Warrants, as the case may
be, as so requested. The Company shall not be required to effect any division,
combination or exchange which will result in the issuance of a Warrant entitling
the Holder to purchase upon exercise a fraction of a Share. The Company may
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require the Holder to pay a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any division, combination or
exchange of Warrants.
1.4 HOLDER AS OWNER. Prior to surrender of this Warrant in accordance
with Section 1.5 for registration of assignment, the Company may deem and treat
the Holder as the absolute owner of this Warrant (notwithstanding any notation
of ownership or other writing hereon) for the purpose of any exercise hereof and
for all other purposes, and the Company shall not be affected by any notice to
the contrary.
1.5 METHOD OF ASSIGNMENT. Any assignment or transfer of any portion or
all of this Warrant shall be made by surrender of this Warrant to the Company at
its principal office with the form of assignment attached hereto duly executed
and accompanied by funds sufficient to pay any transfer tax. In such event, the
Company shall, without charge, execute and deliver a new Warrant in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled.
1.6 RIGHTS OF HOLDER. Nothing contained in this Warrant shall be
construed as conferring upon the Holder the right to vote, consent or receive
notice as a shareholder in respect of any meetings of shareholders for the
election of directors or any other matter, or as having any rights whatsoever as
a shareholder of the Company.
1.7 LOST CERTIFICATES. If this Warrant is lost, stolen, mutilated or
destroyed, the Company shall, on such reasonable terms as to indemnity or
otherwise as it may impose (which shall, in the case of a mutilated Warrant,
include the surrender thereof), issue a new Warrant of like denomination and
tenor as, and in substitution for, this Warrant, which shall thereupon become
void. Any such new Warrant shall constitute an additional contractual obligation
of the Company, whether or not the Warrant so lost, stolen, destroyed or
mutilated shall be at any time enforceable by anyone.
SECTION 2.
ADJUSTMENT OF PURCHASE PRICE
AND NUMBER OF SHARES PURCHASABLE UPON EXERCISE
2.1 STOCK SPLITS. If the Company at any time or from time to time after
the issuance date of this Warrant effects a subdivision of the outstanding
Common Stock, the Purchase Price then in effect immediately before that
subdivision shall be proportionately decreased, and conversely, if the Company
at any time or from time to time after the issuance date of this Warrant
combines the outstanding shares of Common Stock, the Purchase Price then in
effect immediately before the combination shall be proportionately increased.
Any adjustment under this subsection 2.1 shall become effective at the close of
business on the date the subdivision or combination becomes effective.
2.2 DIVIDENDS AND DISTRIBUTIONS. In the event the Company at any time,
or from time to time after the issuance date of this Warrant makes, or fixes a
record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in additional shares of Common
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Stock, then and in each such event the Purchase Price then in effect shall be
decreased as of the time of such issuance or, in the event such a record date is
fixed, as of the close of business on such record date, by multiplying the
Purchase Price then in effect by a fraction (i) the numerator of which is the
total number of shares of Common Stock issued and outstanding immediately prior
to the time of such issuance or the close of business on such record date, and
(ii) the denominator of which shall be the total number of shares of Common
Stock issued and outstanding immediately prior to the time of such issuance or
the close of business on such record date plus the number of shares of Common
Stock issuable in payment of such dividend or distribution; provided, however,
that if such record date is fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefore, the Purchase Price
shall be recomputed accordingly as of the close of business on such record date
and thereafter the Purchase Price shall be adjusted pursuant to this subsection
2.2 as of the time of actual payment of such dividends or distributions.
2.3 RECAPITALIZATION OR RECLASSIFICATION. If the Shares issuable upon
the exercise of the Warrant are changed into the same or a different number of
shares of any class or classes of stock, whether by recapitalization,
reclassification or otherwise (other than a subdivision or combination of shares
or stock dividend or a reorganization, merger, consolidation or sale of assets,
provided for elsewhere in this Section 2), then, and in any such event, the
Holder shall thereafter be entitled to receive upon exercise of this Warrant
such number and kind of stock or other securities or property of the Company to
which a holder of Shares deliverable upon exercise of this Warrant would have
been entitled on such reclassification or other change, subject to further
adjustment as provided herein.
2.4 SALE, MERGER, OR CONSOLIDATION OF THE COMPANY. For the purpose of
this Warrant, "Acquisition" means any sale, license, or other disposition of all
or substantially all of the assets of the Company, or any reorganization,
consolidation, or merger of the Company. Upon the closing of any Acquisition the
successor entity shall assume the obligations of this Warrant, and this Warrant
shall be exercisable for the same securities, cash, and property as would be
payable for the Shares issuable upon exercise of the unexercised portion of this
Warrant as if such Shares were outstanding on the record date for the
Acquisition and subsequent closing. The Purchase Price shall be adjusted
accordingly.
SECTION 3.
STATUS UNDER THE SECURITIES ACT OF 1933
This Warrant and the Shares issuable upon exercise of this Warrant have
not been registered under the Securities Act of 1933, as amended ("the Act").
Upon exercise, in whole or in part, of this Warrant, the certificates
representing the Shares shall bear the legend first above written.
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SECTION 4.
OTHER MATTERS
4.1 BINDING EFFECT. All the covenants and provisions of this Warrant by
or for the benefit of the Company shall bind and inure to the benefit of its
successors and assigns hereunder.
4.2 NOTICES. Notices or demands pursuant to this Warrant to be given or
made by the Holder to or on the Company shall be sufficiently given or made if
sent by certified or registered mail, return receipt requested, postage prepaid,
or facsimile and addressed, until another address is designated in writing by
the Company, as follows:
Environmental Service Professionals, Inc.
0000 X. Xxxxxxxx Xxxxxx Xxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Chief Executive Officer
Notices to the Holder provided for in this Warrant shall be deemed
given or made by the Company if sent by certified or registered mail, return
receipt requested, postage prepaid, and addressed to the Holder at his last
known address as it shall appear on the books of the Company.
4.3 ACCREDITED INVESTOR. This Warrant is issued by the Company in
reliance upon the truth and accuracy of the representations and warranties of
the Holder in Section 13(a)(3) of the Loan Agreement that it is an "accredited
investor," as that term is defined in Rule 501 of Regulation D promulgated under
Section 4(2) of the Securities Act of 1933, as amended.
4.4 GOVERNING LAW. The validity, interpretation and performance of this
Warrant shall be governed by the laws of the State of California. The venue for
any legal proceedings under this Warrant will be in the appropriate forum in the
County of Los Angeles, State of California.
4.5 PARTIES BOUND AND BENEFITED. Nothing in this Warrant expressed and
nothing that may be implied from any of the provisions hereof is intended, or
shall be construed, to confer upon, or give to, any person or corporation other
than the Company and the Holder any right, remedy or claim under any promise or
agreement hereof, and all covenants, conditions, stipulations, promises and
agreements contained in this Warrant shall be for the sole and exclusive benefit
of the Company and its successors and of the Holder, its successors and
permitted assigns.
4.6 HEADINGS. The Section headings herein are for convenience only and
are not part of this Warrant and shall not affect the interpretation thereof.
4.7 ATTORNEYS FEES. In the event of any dispute between the parties
concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs
incurred in such dispute, including reasonable attorneys' fees.
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company
as of ____________________.
ENVIRONMENTAL SERVICE PROFESSIONALS, INC.
By:
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Xxxxxx Xxxxxx, Chief Executive Officer
ASSIGNMENT OF WARRANT
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and
transfers unto _____________________________ the within Warrant and the rights
represented thereby, and does hereby irrevocably constitute and appoint
_______________________________ Attorney, to transfer said Warrant on the books
of the Company, with full power of substitution.
Dated:
_______________________________________________________
Signed:
_______________________________________________________
Signature guaranteed:
_______________________________________________________
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SUBSCRIPTION AGREEMENT
FOR THE EXERCISE OF WARRANTS
The undersigned hereby irrevocably subscribes for the purchase of
_________ Shares pursuant to and in accordance with the terms and conditions of
this Warrant, which Shares should be delivered to the undersigned at the address
stated below. If said number of Shares are not all of the Shares purchasable
hereunder, a new Warrant of like tenor for the balance of the remaining Shares
purchasable hereunder should be delivered to the undersigned at the address
stated below.
The undersigned elects to pay the aggregate Purchase Price for such
Shares in the following manner:
[ ] by the enclosed cash or check made payable to the Company in the
amount of $__________ ;
[ ] by wire transfer of United States funds to the account of the
Company in the amount of $__________, which transfer has been made
before or simultaneously with the delivery of this Notice pursuant to
the instructions of the Company; or
The undersigned agrees that: (1) the undersigned will not offer, sell,
transfer or otherwise dispose of any Shares unless either (a) a registration
statement, or post-effective amendment thereto, covering the Shares has been
filed with the Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended (the "Act"), such sale, transfer or other disposition is
accompanied by a prospectus meeting the requirements of Section 10 of the Act
forming a part of such registration statement, or post-effective amendment
thereto, which is in effect under the Act covering the Shares to be so sold,
transferred or otherwise disposed of, and all applicable state securities laws
have been complied with, or (b) counsel reasonably satisfactory to Environmental
Service Professionals, Inc. has rendered an opinion in writing and addressed to
Environmental Service Professionals, Inc. that such proposed offer, sale,
transfer or other disposition of the Shares is exempt from the provisions of
Section 5 of the Act in view of the circumstances of such proposed offer, sale,
transfer or other disposition; (2) Environmental Service Professionals, Inc. may
notify the transfer agent for the Shares that the certificates for the Shares
acquired by the undersigned are not to be transferred unless the transfer agent
receives advice from Environmental Service Professionals, Inc. that one or both
of the conditions referred to in (1)(a) and (1)(b) above have been satisfied;
and (3) Environmental Service Professionals, Inc. may affix the legend set forth
in Section 3.1 of this Warrant to the certificates for the Shares hereby
subscribed for, if such legend is applicable.
Dated: Signed:
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Address:
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