EXHIBIT 19
THIS WARRANT HAS BEEN ACQUIRED IN A TRANSACTION NOT INVOLVING ANY
PUBLIC OFFERING AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE TRANSFERRED (I) EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THIS
WARRANT OR (ii) EXCEPT PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION AND IN
COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS.
IN ADDITION, THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE
HEREOF ARE SUBJECT TO RESTRICTIONS ON SALE AS SET FORTH HEREIN.
No. W-GHM
Void after 5:00 p.m. Eastern Standard Time, on January 9, 2006.
WARRANT TO PURCHASE COMMON STOCK
EPL TECHNOLOGIES, INC.
This is to Certify that, FOR VALUE RECEIVED, GHM, Inc. or its
permitted assigns under the terms hereof ("Holder"), is entitled to purchase,
subject to the provisions of this Warrant, from EPL TECHNOLOGIES, INC., a
Colorado corporation ("Company"), an aggregate of One Hundred Fifty Thousand
(150, 000) shares of common stock, par value $0.001 per share, of the Company
(the "Common Stock"), at an exercise price equal to 0.5170 dollars (United
States Dollars $0.5170), per share, for each of such shares of Common Stock
issuable under this Warrant, at any time during the period of January 9, 2001 to
January 9, 2006, but not later than 5:00 p.m. Eastern Standard Time, on January
9, 2006, subject to modification and adjustment as provided herein. This Warrant
is the Warrant referred to in, and is entitled to the benefits of, that certain
Subscription Agreement dated as of December 1, 1999, by and between GHM, Inc.
and the Company (the "Agreement"). The number of shares of Common Stock to be
received upon the exercise of this Warrant and the price to be paid may be
adjusted from time to time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares" and the exercise price of
a share of Common Stock in effect at any time and as adjusted from time to time
is hereinafter sometimes referred to as the "Exercise Price."
(a) Exercise of Warrant. Subject to the provisions of subsection (f)
hereof, this Warrant may be exercised in whole or in part at any time or from
time to time on or after January 9, 2001 and until January 9, 2006 or, if either
such day is a day on which banking institutions in the State of New York are
authorized by law to close, then on the next succeeding day which shall not be
such a day, by presentation and surrender hereof to the Company at its principal
office, or at the office of its stock transfer agent, if any, with the Purchase
Form annexed hereto duly executed and accompanied by the Exercise Price, payable
via certified or
official bank check or wire transfer payable to the Company or its order. If
this Warrant should be exercised in part only, and provided the Warrant shall
not have then expired, the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant of like tenor and date
evidencing the rights of the Holder thereof to purchase the balance of the
shares purchasable thereunder. Upon receipt by the Company of this Warrant,
accompanied by payment of the Exercise Price for the number of shares for which
this Warrant is being exercised, at its office, or by the stock transfer agent
of the Company at its office, in proper form for exercise, the Holder shall be
deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise immediately prior to the close of business on the date of such
exercise, notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such shares of Common Stock
shall not then be actually delivered to the Holder; provided, however, that if
on such date the transfer books for the Common Stock shall be closed, the
certificates for the shares or other securities in respect of which the Warrant
has been exercised shall be issuable on the date on which such books shall next
be opened, and until such date, the Company shall be under no obligation to
deliver any certificates for such shares or other securities.
The Company covenants and agrees that all shares of Common Stock that
may be issued upon the exercise of the rights represented by this Warrant will,
upon issuance, be validly issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to the issuance thereof.
(b) Reservation of Shares. The Company hereby agrees that at all
times there shall be reserved for issuance and/or delivery upon exercise of this
Warrant such number of shares of its Common Stock as shall be required for
issuance and delivery upon exercise of this Warrant.
(c) Fractional Shares. No fractional shares or script representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall round up such fraction to the next whole number of shares.
(d) Exchange, Transfer, Assignment or Loss of Warrant. This Warrant
is exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its stock transfer
agent, if any, for other warrants of different denominations entitling the
Holder thereof to purchase in the aggregate the same number of shares of Common
Stock purchasable hereunder. The term "Warrant" as used herein includes any
Warrants into which this Warrant may be divided or exchanged. Upon receipt by
the Company of evidence satisfactory to it of the loss, theft or destruction of
this warrant and of reasonably satisfactory indemnification, and upon surrender
and cancellation of this Warrant, if mutilated, the Company will execute and
deliver a new Warrant of like tenor and date. Any such new Warrant executed and
delivered shall constitute an additional contractual obligation on the part of
the Company, whether or not this Warrant so lost, stolen, destroyed, or
mutilated shall be at any time be enforceable by anyone. This Warrant shall not
be transferable upon the transfer books of the Company with respect to record
ownership of this Warrant or the Warrant Shares until and unless any such
proposed transferee executes and delivers to the Company, in writing,
representations and warranties of the Holder under this Warrant comparable to
those set forth in paragraph (I) below and delivers to the Company an opinion of
counsel, satisfactory to the
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Company in its sole discretion, both as to the issuer of the opinion and the
substance of such opinion, that such transfer does not require registration
under the Securities Act and that such transfer is exempt from any such
registration under the Securities Act or any applicable state securities laws.
(e) Rights of the Holder. The Holder shall not, by virtue of holding
this Warrant prior to any exercise of this Warrant, be entitled to any rights of
a shareholder in the Company either at law or equity, including without
limitation the right to vote or to receive dividends or be deemed the holder of
Common Stock that may at any time be issuable upon exercise of the Warrant, for
any purpose whatsoever, and the rights of the Holder are limited to those
expressed in this Warrant and are not enforceable against the Company except to
the extent set forth herein until such Holder shall have exercised the Warrant
and been issued shares of Common Stock in accordance with the provisions hereof.
(f) Anti-Dilution Provisions. The Exercise Price and the number and
kind of securities purchasable upon the exercise of this Warrant shall be
subject to adjustment from time to time, but only upon the occurrence of any of
the events as hereinafter provided:
(i) In the event the Company shall issue Common Stock as a
dividend upon Common Stock or in payment of a dividend thereon, the Exercise
Price then in effect shall be proportionately decreased, effective at the close
of business on the record date for the determination of stockholders entitled to
receive the same (it being understood that any issuance of Common Stock as a
dividend on any class of the Company's preferred stock shall have no effect on
the Exercise Price);
(ii) In the event the Company shall at any time subdivide or
combine its outstanding shares of Common Stock, by reclassification or
otherwise, the Exercise Price then in effect shall be proportionately decreased
or increased, as the case may be, effective immediately after the effective date
of such subdivision or combination; and
(iii) If any capital reorganization or reclassification of the
capital stock of the Company, or consolidation or merger of the Company with
another corporation, or the sale of all or substantially all of its assets to
another corporation shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provision shall be made whereby the Holder of each Warrant shall
thereafter have the right to purchase and receive upon the basis and upon the
terms and conditions specified in the Warrant and in lieu of the shares of the
Common Stock of the Company purchasable and receivable upon the exercise of the
rights represented by such Warrant, such shares of stock, securities or assets
as may be issued or payable with respect to or in exchange for a number of
outstanding shares of Common Stock equal to the number of shares of such Common
Stock purchasable and receivable upon the exercise of the rights represented by
such Warrant had such reorganization, reclassification, consolidation, merger or
sale not taken place, and in any such reorganization, reclassification,
consolidation, merger or sale, appropriate provision shall be made with respect
to the rights and interests of the Holder to the end that the provisions of the
Warrant (including, without limitation, provisions for adjustment of the
Exercise Price and of the number of shares issuable upon the exercise of the
Warrants) shall thereafter be applicable as nearly as may be in relation to any
shares of stock, securities, or assets thereafter deliverable upon exercise of
stock, securities, or assets
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thereafter deliverable upon exercise of Warrants. The Company shall not effect
any such consolidation, merger or sale, unless prior to or simultaneously with
the consummation thereof, the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume, by written instrument, the obligation to deliver to the
Holder such shares of stock, securities, or assets as, in accordance with the
foregoing provisions, the Holder may be entitled to purchase.
(iv) Upon each adjustment of the Exercise Price pursuant to
this Section (f), the number of shares of Common Stock specified in each Warrant
shall thereupon evidence the right to purchase that number of shares of Common
Stock (calculated to the nearest hundredth of a share of Common Stock) obtained
by multiplying the Exercise Price in effect immediately prior to such adjustment
by the number of shares of Common Stock purchasable immediately prior to such
adjustment upon exercise of such Warrant and dividing the product so obtained by
the Exercise Price in effect after such adjustment.
(v) Irrespective of any adjustments of the number or kind of
securities issuable upon exercise of Warrants or the Exercise Price, Warrants
theretofore or thereafter issued may continue to express the same number of
shares of Common Stock and Exercise Price as are stated in similar Warrants
previously issued.
(vi) The Company may retain the independent public auditing
firm regularly retained by the Company, or another firm of independent public
auditors of nationally recognized standing selected by the Company's Board of
Directors, to make any computation required under this Section (f) and a
certificate signed by such firm shall be conclusive evidence of any computation
made under this Section (f).
(vii) Whenever there is an adjustment in the Exercise Price or
in the number or kind of securities issuable upon exercise of the Warrants, or
both, as provided in this Section (f), the Company shall (A) promptly file in
the custody of its Secretary or Assistant Secretary a certificate signed by the
Chairman of the Board or the President or a Vice President of the Company and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company, showing in detail the facts requiring such adjustment
and the number and kind of securities issuable upon exercise of each Warrant
after such adjustment; and (B) cause a notice stating that such adjustment has
been effected and the Exercise Price then in effect and the number and kind of
securities issuable upon exercise of each Warrant to be sent to each registered
holder of a Warrant.
(viii) If an event occurs which is similar in nature to the
events described in this Section (f), but is not expressly covered hereby, the
Board of Directors of the Company shall make or arrange for an equitable
adjustment to the number of shares of Common Stock issuable pursuant hereto and
the Exercise Price. The Company further agrees, as a general matter, (I) that it
will not, by amendment of its Articles of Incorporation or through
reorganization, consolidation, merger, dissolution or sale of assets, or by any
other voluntary act, avoid or seek to avoid the observation of performance of
any of the covenants, stipulations or conditions to be observed or performed
hereunder by the Company, (ii) promptly to take all action as may from time to
time be required in order to permit the Holder to exercise this
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Warrant and the Company duly and effectively to issue shares of its Common Stock
or other securities as provided herein upon the exercise hereof, and (iii)
promptly to take all action required or provided for herein to protect the
rights of the Holder granted hereunder against dilution.
(g) Notices To Warrant Holders. So long as this Warrant shall be
outstanding, (I) if the Company shall offer to the holders of the Common Stock
for subscription or purchase by them any share of any class or any other rights
or (ii) if any capital reorganization of the Company, reclassification of the
capital stock of the Company, consolidation or merger of the Company with or
into another corporation, sale, lease or transfer of all or substantially all or
the property and assets of the Company to another corporation, or voluntary or
involuntary dissolution, liquidation or winding up of the Company shall be
effected, then in any such case, the Company shall cause to be mailed by
certified mail to the Holder, at least fifteen (15) days prior to the date
specified in (x) or (y) below, as the case may be, a notice containing a brief
description of the proposed action and stating the date on which (x) a record
date is to be fixed for the purpose of such rights, or (y) such
reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place and the date, if any is
to be fixed, as of which the holders of Common Stock or other securities shall
receive cash or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, lease, dissolution,
liquidation or winding upon.
(h) Governing Law. This Warrant shall be governed by and construed
in accordance with the laws of the State of New York, without reference to
principles of conflict of laws.
(i) Representations and Warranties of the Holder.
The Holder hereby represents and warrants to the
Company, intending that the Company rely on such representations and warranties
in issuing the Warrant and any Warrant Shares to the Holder, as follows:
(A) The Holder is an "accredited investor" as defined
under the rules and regulations under the Securities Act and is a sophisticated
investor who is fully familiar with the nature of the Company's business or,
that the Company has previously acknowledged in writing to the Holder that the
Holder need not be an "accredited investor."
(B) The Holder understands that the Warrants and the
Warrant Shares have not been and will not, in connection with the issuance of
the Warrant to the Holder, be registered under the Securities Act, are subject
to substantial restrictions on transfer as set forth herein and may not be sold
or transferred absent such registration unless the Holder provides the Company
with an opinion of counsel which is satisfactory to the Company (both as to the
issuer of the opinion and the form and substance thereof) that the Warrant or
the Warrant Shares proposed to be transferred may be transferred in reliance on
an applicable exemption from the registration requirements of the Securities Act
and any other applicable securities laws.
(C) The Holder represents and warrants that it is
acquiring the Warrant for its own account, as principal, for investment only and
not with a view
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to resale or distribution and that it will not sell or otherwise transfer any of
the Warrant or the Warrant Shares, except in accordance with applicable
securities laws.
(D) The Holder represents and warrants that it is able
to bear the economic risk of losing its entire investment in the Warrant and the
Warrant Shares.
(E) Holder understands that the Warrant and the Warrant
Shares are being offered and sold in reliance on specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company and its controlling persons are relying upon the truth and
accuracy of the representations, warranties, agreements, acknowledgments and
understandings set forth in this Warrant to determine the applicability of such
exemptions and the suitability of the Holder to acquire the Warrant and the
Warrant Shares.
(F) Holder represents and warrants that the information
set forth in this Warrant concerning the Holder is true and correct.
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(G) Holder acknowledges and understands the meaning of
the representations made by Holder in this Agreement and hereby agrees to
indemnify and hold harmless the Company and all persons deemed to be in control
of the Company from and against any and all loss, costs, expenses, damages and
liabilities (including, without limitation, court costs and attorneys' fees)
arising out of or due to a breach by the Holder of any such representations. All
representations set forth in subparagraphs (B), (C), (E) and (G) shall survive
the delivery of this Warrant and the purchase by the Holder of the Warrant and
any Warrant Shares.
EPL TECHNOLOGIES, INC.
By /s/ Xxxxxxx X. Xxx
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Name: Xxxxxxx X. Xxx
Title: Secretary
Dated: January 9, 2001
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EPL TECHNOLOGIES, INC.
PURCHASE FORM
Dated:
The undersigned hereby elects to exercise the within Warrant to the
extent of purchasing ___________ shares of Common Stock and hereby delivers a
bank or certified check or wire transfer constituting full payment of the
Exercise Price hereof.
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INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
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(Please type or print in block letters)
Address
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Social Security Number (Employee Identification Number)
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Signature
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