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THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT")
OR APPLICABLE STATE SECURITIES LAWS ("STATE ACTS"). THIS WARRANT AND ANY
SECURITIES ISSUED UPON EXERCISE OF THIS WARRANT MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER
THE SECURITIES ACT AND APPLICABLE STATE ACTS UNLESS THE CORPORATION HAS RECEIVED
AN OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION THAT SUCH REGISTRATION IS
NOT REQUIRED.
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XXXXX ENVIRONMENTAL CORPORATION
WARRANT CERTIFICATE
Warrants to Subscribe April 4, 1995
for 761,731 shares of
Series A Preferred Stock
THIS CERTIFIES that, for value received, STRATEGICA CAPITAL CORPORATION, a
Delaware corporation, or its registered assigns (the "Holder"), is the
registered owner of 761,731 warrants (the "Warrants") of XXXXX ENVIRONMENTAL
CORPORATION, a Colorado corporation (hereinafter referred to as the
"Corporation" or the "Company"). Each of the Warrants entitles the Holder to
purchase one duly authorized, validly issued, fully paid and nonassessable share
of nonvoting Series A Convertible Preferred Stock, $.001 par value per share, of
the Corporation (the "Series A Preferred Stock"). Each share of Series A
Preferred Stock relating to a Warrant and/or each share of Series A Preferred
Stock underlying a Warrant may sometimes hereinafter be referred to as a
"Warrant Share."
SECTION 1. EXERCISE OF WARRANT. This Warrant may be exercised at any time
from the date hereof until and including January 11, 1999, 5:00 p.m., Miami,
Florida time (the "Expiration Date"). If the average of the closing bid and
asked prices of the Company's Common Stock for the ten (10) trading days (in
which the Company's Common Stock is traded) immediately prior to January 11,
1999, is less than $2.00 per share on the original Expiration Date, then the
Expiration Date shall be extended for one additional year to January 11, 2000
(the "First Extended Expiration Date"). If such average immediately prior to
January 11, 2000, is less than $2.00 per share on the First Extended Expiration
Date, then the Expiration Date shall be extended for one additional year to
January 11, 2001 (the "Second Extended Expiration Date"). If such average
immediately prior to January 11, 2001, is less than $2.00 per share on
the Second Extended Expiration Date, then the Expiration Date shall be extended
for one additional year to January 11, 2002. Subject to adjustment pursuant to
Section 4 below, the exercise price per share of the shares of Series A
Preferred Stock purchasable pursuant to this Warrant shall be equal to the
product of the "Market Price," as hereinafter defined, of the Company's common
stock, $.003 par value per share (the "Common Stock") and the number of shares
of Common Stock into which a share of the Series A Preferred Stock is then
convertible up to a maximum of $0.675 per share (such price, as adjusted from
time to time, being hereinafter referred to as the "Exercise Price"). For
purposes of the preceding sentence, "Market Price" shall be defined as the
average of the closing bid prices of the Company's Common Stock for the ten (10)
trading days, in which the Company's Common Stock is traded, immediately prior
to date of exercise.
If the closing bid price per share of the Company's Common Stock for ten
(10) consecutive trading days, in which the Company's Common Stock is traded
(the "Mandatory Market Price"), equals or exceeds $1.50 per share at any times
during the first four years from the date hereof, the Holder shall, at the
option of the Company, exercise up to 10% of the original number of Warrants
during each of the first and second years from the date hereof and up to 25% of
the original number of Warrants during each of the third and fourth year from
the date hereof. If the Holder is not required to exercise the maximum number of
Warrants for any given year, then the unexercised number shall be added to the
maximum number for the succeeding year of the term of the Warrants. The Holder,
at its option in each instance of required exercise, may exercise one-half or
more of the number of Warrants specified in the Company's notice to the Holder
for cash and surrender the balance of such number of Warrants to the Company in
exchange for the number of Warrant Shares equal to (x) the number of Warrant
Shares as to which the Warrants are being surrendered multiplied by (y) a
fraction, the numerator of which is the Mandatory Market Price less the Exercise
Price of the Warrant Shares and the denominator of which is the Mandatory Market
Price of the Warrant Shares. The Company shall give the Holder written notice of
the Company's exercise of each option to require mandatory exercise of
outstanding Warrants within five (5) business days after the occurrence of
events triggering the Company's right to exercise such option. If the Company
does not timely give the Holder such notice and the Mandatory Market Price falls
below $1.50 per share, then the Company's right to exercise each such option
shall lapse for the time being and shall reoccur each time the Mandatory Market
Price again equals or exceeds $1.50 per share until the Company exercises each
such option.
The rights represented by this Warrant shall be exercised by the holder
hereof, in whole or in part, but not as to a fractional share of Series A
Preferred Stock, by the surrender of this Warrant (properly endorsed) at the
office of the Corporation or its transfer agent, and by payment to the
Corporation of the Exercise Price in cash or by wire transfer, for each share
being purchased. Upon the exercise of this Warrant, a certificate or
certificates for the shares of Series A Preferred Stock so purchased, registered
in the name of the holder, shall be promptly delivered to the holder hereof
within a reasonable time. The person in whose name any certificate for shares of
Series A Preferred Stock is issued upon exercise of this Warrant
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shall for all purposes be deemed to have become the holder of record of such
shares on the date on which the Warrant was surrendered and payment of the
Exercise Price and any applicable taxes was made, except that, if the date of
such surrender and payment is a date on which the stock transfer books of the
Corporation are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
SECTION 2. TRANSFER, DIVISION AND COMBINATION.
(a) Neither the Warrants or the Warrant Shares may be sold,
assigned or otherwise transferred prior to July 11, 1995 to any person other
than an officer, managing director or affiliate of Holder. Transfer of this
Warrant and all rights hereunder, in whole or in part, is registrable on the
books of the Corporation to be maintained for such purpose, upon surrender of
this Warrant at the principal office of the Corporation, together with the
Assignment Form annexed hereto duly executed by the Holder or his agent or
attorney and funds sufficient to pay any stock transfer taxes payable upon the
making of such transfer. Upon such surrender and payment the Corporation shall
execute and deliver a new Warrant or Warrants in the name of the assignee or
assignees and in the denomination specified in such instrument of assignment,
and this Warrant shall promptly be canceled. A Warrant may be exercised by a new
Holder for the purchase of shares of Series A Preferred Stock without having a
new Warrant issued.
(b) This Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office or agency of the
Corporation, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by Holder or his
agent or attorney. Subject to compliance with subparagraph (a) above, as to any
transfer which may be involved in such division or combination, the Corporation
shall execute and deliver a new Warrant or Warrants in exchange for the Warrant
or Warrants to be divided or combined in accordance with such notice.
(c) The Corporation shall prepare, issue and deliver at its
own expense (other than stock transfer taxes) the new Warrant or Warrants under
this Section 2.
(d) The Corporation agrees to maintain, at its aforesaid
office or agency, books for the registration and the registration of transfer of
the Warrants.
(e) In the case of all dividends or other distributions of
the Corporation to the holders of its Common Stock or any series of preferred
stock with respect to which there is a taking of a record of such holders, the
Corporation will in each such case take such a record and will take such record
as of the close of business on a business day. The Corporation will not at any
time, except upon dissolution, liquidation or winding up of the Corporation,
close its stock transfer books or warrant transfer books so as to result in
preventing or delaying the exercise or transfer of any warrant.
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SECTION 3. ADJUSTMENT OF NUMBER OF SHARES SUBJECT TO WARRANT. Upon any
adjustment of the Exercise Price pursuant to Sections 4(a) or 4(b) hereof, the
holder of this Warrant shall thereafter be entitled to purchase, at the adjusted
Exercise Price, the number of shares (calculated to the nearest tenth of a
share) obtained by multiplying the Exercise Price in effect immediately prior to
such adjustment by the number of shares purchasable pursuant hereto immediately
prior to such adjustment and dividing the product thereof by the Exercise Price
resulting from such adjustment.
SECTION 4. ADJUSTMENT OF EXERCISE PRICE.
(a) If the Corporation shall hereafter split, subdivide or
combine its Common Stock, then the Exercise Price shall be proportionately
adjusted so that the holder of this Warrant shall receive the equivalent number
of shares, at the equivalent cost per share, as if this Warrant was exercised
and the Series A Preferred Stock converted on the date immediately preceding
such split, subdivision or combination of the Corporation's Common Stock.
(b) If the Corporation shall pay a dividend with respect to
the Common Stock or make any other distribution with respect to the Common Stock
payable in shares of Common Stock, then the Exercise Price shall be adjusted,
from and after the date of determination of the shareholders entitled to receive
such dividend or distribution, to that price determined by multiplying the
Exercise Price in effect immediately prior to such date of determination by a
fraction (i) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or distribution, and
(ii) the denominator of which shall be the total number of shares of Common
Stock outstanding immediately after such dividend or distribution.
(c) Upon any such adjustment of the Exercise Price pursuant
to this Section, then and in each such case the Corporation shall give written
notice thereof to Holder stating the Exercise Price resulting from such
adjustment and the number of shares of Series A Preferred Stock thereafter
purchasable under this Warrant and setting forth in reasonable detail the method
of calculation and the facts upon which such calculation is based.
SECTION 5. RECLASSIFICATION, MERGER, ETC. In the case of any
reclassification of the Common Stock or in the case of any consolidation or
merger of the Corporation with or into another corporation (other than a merger
with another corporation in which the Corporation is the surviving corporation
and which does not result in any reclassification of the Common Stock) or in the
case of any sale of all or substantially all of the assets of the Corporation,
then the Corporation, or such successor or purchasing corporation, as the case
may be, shall execute a new certificate, providing that the holder of this
Warrant shall have the right to exercise such new Warrant and upon such exercise
to receive, in lieu of each share of Common Stock theretofore issuable upon
conversion of the Series A Preferred Stock issuable upon exercise of this
Warrant, the number and kind of shares of stock, other securities, money or
property receivable upon such reclassification, consolidation, merger or sale of
assets by a holder of
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shares of the Common Stock with respect to one share of Common Stock. Such new
Warrant certificate shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for herein. The
provisions of this Section shall similarly apply to successive
reclassifications, consolidations, mergers or sales of assets.
SECTION 6. STOCK TO BE RESERVED. The Corporation will at all times reserve
and keep available out of its authorized Series A Preferred Stock or its
treasury shares thereof, solely for the purpose of issue upon the exercise of
this Warrant as herein provided, such number of shares of Series A Preferred
Stock as shall then be issuable upon the exercise of this Warrant. The
Corporation will at all times also reserve and keep available out of its
authorized Common Stock or its treasury shares thereof, solely for the purpose
of issue upon the conversion of the Series A Preferred Stock as shall then be
issuable upon the exercise of this Warrant as herein provided, such number of
shares of Common Stock as shall then be issuable upon the conversion of the
Series A Preferred Stock issuable upon the exercise of this Warrant. The
Corporation covenants that all shares of Series A Preferred Stock and Common
Stock which shall be so issued shall be duly and validly issued and fully paid
and nonassessable and free from all taxes, liens and charges with respect to the
issue thereof. The Corporation will take all such action as may be necessary to
assure that all such shares of Series A Preferred Stock or Common Stock may be
so issued without violation of any applicable law or regulation, or of any
requirements of any national securities exchange upon which the Common Stock of
the Corporation may be listed. The Corporation has not granted and will not
grant any right of first refusal with respect to shares issuable upon exercise
of this Warrant, and there are no preemptive rights associated with such shares.
SECTION 7. NO STOCKHOLDER RIGHTS OR LIABILITIES. This Warrant shall not
entitle the holder hereof to any voting rights or other rights as a stockholder
of the Corporation. No provision hereof, in the absence of affirmative action by
the holder hereof to purchase shares of Series A Preferred Stock, and no mere
enumeration herein of the rights or privileges of the holder hereof, shall give
rise to any liability of such holder for the Exercise Price or as a shareholder
of the Corporation, whether such liability is asserted by the Corporation or by
creditors of the Corporation.
SECTION 8. FRACTIONAL SHARES. No fractional shares shall be issued upon the
exercise of this Warrant, but the Company shall pay the holder an amount equal
to the fair market value of such fractional share of Series A Preferred Stock in
lieu of each fraction of a share otherwise called for upon any exercise of this
Warrant. For purposes of this Warrant, the fair market value of a share of
Series A Preferred Stock shall be determined with reference to the underlying
shares of Common Stock into which it is convertible as follows:
(a) If the Common Stock is listed on a National Securities
Exchange or admitted to unlisted trading privileges on such exchange or listed
for trading on the Nasdaq system, the current market value shall be the last
reported sale price of the Common Stock on such exchange or system on the last
business day prior to the date of exercise of this Warrant
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or on such day the average of the closing bid and asked prices for such day on
such exchange or system, as applicable; or
(b) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the current market value shall be the mean of the
last reported bid and ask prices reported by the National Quotation Bureau, Inc.
on the last business day prior to the date of the exercise of this Warrant; or
(c) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not so reported, the
current market value shall be an amount, not less than book value thereof as at
the end of the most recent fiscal year of the Company ending prior to the date
of the exercise of the Warrant, determined in such reasonable manner as may be
prescribed by the Board of Directors of the Company.
SECTION 9. REGISTRATION RIGHTS. Neither the Warrant, the Warrant Shares or
the shares of Common Stock into which the Warrant Shares are convertible (the
"Warrant Common Shares") have been registered under the Securities Act of 1933,
as amended (the "Securities Act").
9.1 Whenever the Company proposes to file under the
Securities Act a Registration Statement relating to any of its Common Stock,
whether on its own behalf or on behalf of any holders of Common Stock of the
Company, the Company shall, at least thirty (30) days prior to such filing, give
written notice of such proposed filing to Holder. Upon receipt by the Company
not more than thirty (30) days after such notice of a written request from
Holder for registration of Warrant Common Shares issuable upon the conversion of
the Series A Preferred Stock issuable upon exercise of the Warrants by Holder or
held by Holder, the Company shall (A) include in such registration statement or
in a separate registration statement concurrently filed, and shall use its best
efforts to cause such registration statement to become effective with respect
to, the Warrant Common Shares as to which Holder requests registration and (B)
if such proposed registration is in connection with an underwritten offering of
Common Stock for the benefit of the Company, upon request of Holder, use its
best efforts to cause the managing underwriter therefor to include in such
offering the Warrant Common Shares as to which Holder requests such inclusion,
on terms and conditions comparable to those of the securities offered on behalf
of the Company. Holder shall cooperate with the Company in the preparation of
such Registration Statement, to the extent required to furnish information
concerning the Holder therein. Notwithstanding the foregoing, this Section 9.1
shall not be applicable to registration statements of the Company filed pursuant
to Form S-8 or Form S-4.
9.2 Whenever one or more registered holders of a majority of
the Warrants or Warrant Common Shares issued as of the date hereof pursuant to a
certain Advisory Agreement effective as of July 11, 1994 between Strategica
Group, Inc., a Florida corporation and predecessor by merger to the Holder, or
its designees and the Company shall make a written request to the Company to
register under the Securities Act Warrant Common Shares either
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issuable upon the conversion of Series A Preferred Stock issuable upon exercise
of the Warrants or held by such holders, the Company shall within ten (10) days
after such request is received promptly give written notice to the Holder
stating the estimated approximate date of filing such registration statement,
and shall thereupon promptly use its best efforts to file a registration
statement (and thereafter use its best efforts to cause such registration) with
respect to all Warrant Common Shares issuable upon conversion of Series A
Preferred Stock issuable upon exercise of the Warrants by Holder or held by
Holder as soon as reasonably practical after the date of receipt of such notice
by the Company. The Company shall not be required at its expense to effect more
than one registration statement pursuant to this Section 9.2. Notwithstanding
anything to the contrary contained herein, in the event that Holder exercises
its registration rights under this Section 9.2 on or prior to the date that is
three (3) months prior to the Expiration Date or any Extended Expiration Date
and the registration of the subject Warrant Common Shares issuable upon
conversion of Series A Preferred Stock issuable upon exercise of the Warrants or
held by such holders shall not have been declared effective by the Securities
and Exchange Commission (the "SEC") pursuant to the Securities Act on or prior
to the date that is five (5) business days prior to such Expiration Date or
Extended Expiration Date, then the Expiration Date or Extended Expiration Date
shall be extended to the date that is five (5) business days following such
effective date.
9.3 If the Corporation is required by the provisions of this
Section 9 to use its best efforts to effect the registration of any of its
securities under the Securities Act, the Corporation will, as expeditiously as
is possible:
(a) Prepare and file with the SEC a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such registration statement
whenever the Holder of such securities shall desire to transfer the same.
(c) Furnish to the Holder such number of copies of a
summary prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as the Holder may reasonably request in order to facilitate the
transfer of the securities owned by such Holder.
(d) Use its best efforts to register or qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions within the United States as Holder shall
request (provided that the Company shall not be required to pay registration or
qualification expense for more than ten (10) states to be
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designated by Holder) and do such other reasonable acts and things as may be the
transfer in such jurisdictions of the securities owned by Holder.
(e) Furnish, at the request of the Holder requesting
registration of Warrant Common Shares, on the date that such Warrant Common
Shares are delivered to the underwriters for sale pursuant to such registration
or, if such Warrant Common Shares are not being sold through underwriters, on
the date that the registration statement with respect to such shares becoming
effective, (1) an opinion, dated such date, of the outside counsel representing
the Corporation for the purposes of such registration, addressed to the
underwriters, if any, and if such Warrant Common Shares are not being sold
through underwriters, then to the holders making such request, stating that such
registration statement has become effective under the Securities Act and that
(i)) to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, (ii)
the registration statement, the related prospectus, and each amendment or
supplement thereto, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of
the SEC thereunder (except that such counsel need express no opinion as to
financial statements contained therein), (iii) such counsel has no reason to
believe that either the registration statement or the prospectus, or any
amendment or supplement thereto, contains any untrue statement of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iv) the descriptions in the registration statement or the
prospectus, or any amendment or supplement thereto, of all legal matters and
contracts and other legal documents or instruments are accurate and fairly
present the information required to be shown, and (v) such counsel does not know
of any legal or governmental proceedings, pending or contemplated, required to
be described in the registration statement or prospectus, or any amendment or
supplement thereto, which are not described as required, nor of any contracts or
documents or instruments of a character required to be described in the
registration statement or prospectus, or any amendment or supplement thereto, or
to be filed as exhibits to the registration statement which are not described
and filed or incorporated by reference as required; and (2) a letter dated such
date, from the independent certified public accountants of the Corporation,
addressed to the underwriters, if any, and if such Warrant Common Shares are not
being sold through underwriters, then to the Holders making such request,
stating that they are independent certified public accountants within the
meaning of the Securities Act and that, in the opinion of such accountants, the
financial statements and other financial data of the Corporation included in the
registration statement or the prospectus, or any amendment or supplement
thereto, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act. Such opinion of counsel shall
additionally cover such other legal matters with respect to the registration in
respect of which such opinion is being given as the Holders may reasonably
request. Such letter from the independent certified public accountants shall
additionally cover such other, financial matters (including information as to
the period ending not more than five (5) business days prior to the date of such
letter) with respect to the registration in respect of which such letter is
being given as the Holders may reasonably request.
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(f) Otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC.
9.4 The Holder of the securities being so registered agrees to pay
all of the underwriting discounts and commissions with respect to the securities
owned by them being registered. The Company will pay all other costs and
expenses in connection with a registration statement to be filed pursuant to
Section 9 hereof including, without limitation, registration fees, the
reasonable fees and expenses of counsel for the Company and Holder, the fees and
expenses of its accountants and all other costs and expenses incident to the
preparation, printing and filing under the Securities Act of any such
registration statement, each prospectus and all amendments and supplements
thereto, the costs incurred in connection with the qualification of such
securities for sale in not more than ten (10) states as Holder has designated,
including fees and disbursements of counsel for the Company, and the costs of
supplying a reasonable number of copies of the registration statement, each
preliminary prospectus, final prospectus and any supplements or amendments
thereto to the Holder.
9.5 The Company agrees to enter into an appropriate
cross-indemnity agreement with any underwriter (as defined in the Securities
Act) for the Holder in connection with the filing of a registration statement
pursuant to Section 9.1 hereof.
9.6 If the Company shall file any registration statement including
therein all or any part of the Warrant Common Shares either issuable upon
conversion of Series A Preferred Stock issuable upon exercise of the Warrants by
Holder or held by Holder, the Company and the Holder shall enter into an
appropriate cross-indemnity agreement whereby the Company shall indemnify and
hold harmless the Holder against any losses, claims, damages or liabilities (or
actions in respect thereto arising out of or based upon any untrue statement or
alleged untrue statement of any material fact contained in such registration
statement, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make statements therein not
misleading unless such statement or omission was made in reliance upon and in
conformity with written information furnished or required to be furnished by the
Holder, and the Holder shall (to the extent of and limited to the amount of net
proceeds received by the Holder from the sale of Warrant Common Shares)
indemnify and hold harmless the Company, each of its directors and officers who
have signed the registration statement and each person, if any, who controls the
Company, within the meaning of the Securities Act against any losses, claims,
damages or liabilities (or actions in respect thereof) arising out of or based
upon any untrue statement or alleged untrue statement of any material fact
contained in such registration statement, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with written information furnished or required
to be furnished by the Holder expressly for use in such registration statement.
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9.7 Nothing herein shall be construed to require any of the
holders who may desire to include any securities in any registration statement
referred to in Section 9.1 hereof to exercise their Warrants prior to the
effective date of registration statement and such holders, at their option, to
the extent permissible by law, may exercise the Warrants against payment of the
proceeds of the sale of such securities pursuant to a registration statement.
9.8 Until the shares shall be sold or capable of sale without
registration under the Securities Act, the Company at its expense will file
such post-effective amendments as may be necessary to make available for
use a prospectus meeting the requirements of the Securities Act, including,
without limitation, Section 10(a)(3). The Company will cause copies of
such prospectus to be delivered to any person exercising the warrant or
selling the shares as may be required by the Securities Act and the rules
and regulations of the SEC.
SECTION 10. INVESTMENT REPRESENTATION AND LEGEND. Each holder, by
acceptance of this Warrant, represents and warrants to the Corporation that the
Holder is acquiring the Warrant and the securities issuable upon exercise
hereof, unless at the time of exercise a registration statement under the
Securities Act is effective with respect to such securities, for investment
purposes only and not with a view towards the resale or other distribution
thereof.
The Holder, by acceptance of this Warrant, agrees that the Corporation may
affix, unless the shares subject to this Warrant are registered at the time of
exercise, the following legend to certificates for securities issued upon
exercise of this Warrant:
The securities represented by this certificate have been issued
in reliance upon the representation of the holder that they
have been acquired for investment and not with a view toward
the resale or other distribution thereof, and have not been
registered under the Securities Act of 1933 (the "Securities
Act") or applicable state securities laws ("State Acts") and
may not be offered, sold, transferred, encumbered or otherwise
disposed of unless there is an effective registration statement
under the Securities Act and the applicable State Acts or unless
in the opinion of counsel acceptable to the Corporation, such
registration is not required.
SECTION 11. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant
is lost, stolen, mutilated or destroyed, the Corporation may, on such terms as
to indemnity or otherwise as it may in its discretion reasonably impose (which
shall, in the case of a mutilated Warrant, include the surrender thereof), issue
a new Warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed. Any such new Warrant shall constitute an original
contractual obligation of the Corporation, whether or not the allegedly lost,
stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
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SECTION 12. PAYMENT OF TAXES. The Company will pay all taxes, if any,
attributable to the transfer and/or issuance of the Warrants, the Warrant Shares
and the Warrant Common Shares.
SECTION 13. NOTICES. All notices, requests, demands and other
communications relating to this Warrant Certificate shall be in writing,
addressed, if to the registered owner hereof, to it at the address furnished by
the registered owner to the Company, and, if to the Company, to it at Fourth
Floor, 00 X.X. Xxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, or to such other address as
any party shall notify the other party in writing, and shall be effective, in
the case of written notice by first class certified mail, postage prepaid, three
(3) days after placement into the mails, in the case of written notice by
express mail or other overnight courier, the day after placement with that
service, And, in the case of notice by confirmed telex, facsimile transmission,
telegram or cable, on the same day as sent.
SECTION 14. BINDING EFFECT. This Warrant Certificate shall be binding upon
and inure to the sole and exclusive benefit of the Company, its successors and
assigns and the registered holder or holders from time to time of the Warrants,
the Warrant Shares and the Warrant Common Shares.
SECTION 15. SUPPLYING INFORMATION. The Corporation shall cooperate with the
Holder in supplying such information as may be necessary for the Holder to
complete and file any information reporting forms presently or hereafter
required by the SEC as a condition to the availability of an exemption from the
Securities Act for the sale of any Warrant, Warrant Shares or Warrant Common
Shares.
SECTION 16. FILINGS. The Corporation will deliver to Holder promptly upon
their becoming available one copy of each report, notice or proxy statement sent
by the Corporation to its stockholders generally, and of each regular or
periodic report (pursuant to the Securities Exchange Act of 1934, as amended)
and any registration statement, prospectus or written communication (other than
transmittal letters) (pursuant to the Securities Act), filed by the Corporation
with (i) the SEC or (ii) any securities exchange on which shares of Common Stock
are listed.
SECTION 17. SUCCESSORS AND ASSIGNS. This Warrant and the rights evidenced
hereby shall inure to the benefit of and be binding upon the successors of the
Corporation and Holder. The provisions of this Warrant are intended to be for
the benefit of all Holders from time to time of this Warrant, and shall be
enforceable by any such Holder.
SECTION 18. AMENDMENT. This Warrant may not be modified or amended except
by written agreement of the parties.
SECTION 19. HEADINGS. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
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SECTION 20. GOVERNING LAW. THIS WARRANT CERTIFICATE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF FLORIDA, WITHOUT
REFERENCE TO THE CONFLICTS OF LAWS PRINCIPLES OF THE STATE OF FLORIDA.
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IN WITNESS WHEREOF, the undersigned has executed this Warrant on and as of
the day and year first above written.
XXXXX ENVIRONMENTAL CORPORATION,
a Colorado corporation
By: /s/ XXXXX X. XXXXXXXX
-----------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
[EXECUTION PAGE TO WARRANT CERTIFICATE]
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WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing _____________ shares of Series A Convertible Preferred
Stock of Xxxxx Environmental Corporation, a Colorado corporation, and hereby
makes payment of $_____________ in payment therefor.
___________________________________
Signature
___________________________________
Signature, if jointly held
___________________________________
Date
INSTRUCTIONS FOR ISSUANCE OF STOCK
(if other than to the registered holder of the within Warrant)
Name ___________________________________________________________________________
(Please typewrite or print in block letters)
Address ________________________________________________________________________
________________________________________________________________________________
Social Security or Taxpayer Identification Number ______________________________
And if said number of shares shall not be all the shares exchangeable or
purchasable under the within Warrant, a new Warrant is to be issued in the name
of the undersigned for the balance remaining of the shares purchasable
thereunder.
ASSIGNMENT FORM
FOR VALUE RECEIVED, ___________________________ hereby sells, assigns and
transfers unto _____________________________________________, the right to
purchase Series A Preferred Stock of Xxxxx Environmental Corporation, a Colorado
corporation, represented by this Warrant to the extent of shares as to which
such right is exercisable and does hereby irrevocably constitute and appoint
______________________________________ Attorney, to transfer the same on the
books of the Company with full power of substitution in the premises.
Dated:_____________________ 199__
___________________________________
Signature
___________________________________
Signature, if jointly held
