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Exhibit 4.5
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WARRANT
TO PURCHASE COMMON STOCK OF
WASTE-QUIP, INC., AN OHIO CORPORATION
WARRANT NO. BO-1
ORIGINAL ISSUE
DATE: MAY 26, 1994
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TABLE OF CONTENTS
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Page
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1. DEFINITIONS..................................................... 2
2. EXERCISE OF WARRANT............................................. 10
2.1 Manner of Exercise................................... 10
2.2 Payment of Taxes..................................... 11
2.3 Fractional Shares.................................... 11
2.4 Continued Validity and Application................... 11
3. TRANSFER, DIVISION AND COMBINATION.............................. 12
3.1 Transfer............................................. 12
3.2 Division and Combination............................. 13
3.3 Expenses............................................. 13
3.4 Maintenance of Books................................. 13
4. ANTIDILUTION PROVISIONS; PREEMPTIVE RIGHTS; VESTING;
ADJUSTMENT UPON THE HAPPENING OF CERTAIN EVENTS................. 13
4.1 Adjustment of Number of Shares Purchasable and
Exercise Price....................................... 13
4.2 Rights Offering...................................... 15
4.3 Preemptive Rights.................................... 16
4.4 Certificates and Notices............................. 16
4.5 Vesting.............................................. 17
4.6 Adjustment Upon the Happening of Certain Events...... 18
5. NO IMPAIRMENT; REGULATORY COMPLIANCE COOPERATION; FURTHER
ASSURANCES...................................................... 20
6. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION
WITH OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY...................... 22
7. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS.............. 22
8. TRANSFER AND REGISTRATION....................................... 22
8.1 Restrictive Legends.................................. 22
8.2 Transfers............................................ 24
8.3 Termination of Securities Law Restrictions........... 24
8.4 Listing on Securities Exchange....................... 25
8.5 Nominees for Beneficial Owners....................... 25
9. SUPPLYING INFORMATION........................................... 25
10. LOSS OR MUTILATION.............................................. 26
11. OFFICE OF THE COMPANY........................................... 26
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12. REPURCHASE BY THE COMPANY OF WARRANT AND WARRANT STOCK.......... 26
12.1 Obligation to RePurchase Warrant or Warrant
Stock................................................ 26
12.2 Determination and Payment of Repurchase Price........ 27
12.3 Disabling Conditions................................. 28
13. DILUTION FEE.................................................... 29
14. MISCELLANEOUS................................................... 29
14.1 Nonwaiver............................................ 29
14.2 Notice Generally..................................... 29
14.3 Indemnification...................................... 29
14.4 Limitation of Liability.............................. 30
14.5 Remedies............................................. 30
14.6 Successors and Assigns............................... 30
14.7 Amendment............................................ 30
14.8 Severability......................................... 31
14.9 Headings............................................. 31
14.10 Governing Law........................................ 31
SIGNATURES...................................................... 31
ANNEXES
ANNEX A - Subscription Form
ANNEX B - Assignment Form
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NEITHER THE WARRANT REPRESENTED BY THIS CERTIFICATE NOR ANY OF THE
SECURITIES ISSUABLE UPON EXERCISE THEREOF HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAW. NO TRANSFER OF THE WARRANT REPRESENTED BY THIS
CERTIFICATE OR OF THE SECURITIES ISSUABLE UPON EXERCISE THEREOF TO A
PERSON OTHER THAN AN AFFILIATE OF THE HOLDER THEREOF SHALL BE VOID OR
EFFECTIVE UNLESS (A) SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN COMPLIANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS OR (B) THE HOLDER OF THE
SECURITIES PROPOSED TO BE TRANSFERRED SHALL HAVE DELIVERED TO THE
COMPANY EITHER A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION OR AN OPINION OF COUNSEL (WHO MAY BE AN EMPLOYEE OF SUCH
HOLDER) EXPERIENCED IN SECURITIES MATTERS, SUCH OPINION AND SUCH
COUNSEL BEING REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT
THAT SUCH PROPOSED TRANSFER IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND OF ANY APPLICABLE STATE
SECURITIES LAWS OR (C) SUCH TRANSFER IS PURSUANT TO RULE 144 OR RULE
144A UNDER THE SECURITIES ACT AND SUCH HOLDER(S) SHALL HAVE DELIVERED
TO THE COMPANY A CERTIFICATE IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY SETTING FORTH THE BASIS FOR APPLYING ANY
SUCH RULE TO THE PROPOSED TRANSFER.
Warrant No. BO-1
WARRANT
Waste-Quip, Inc.
THIS IS TO CERTIFY THAT BANC ONE CAPITAL PARTNERS II, LIMITED
PARTNERSHIP, or registered assigns, is entitled, at any time during the Exercise
Period (such term, and certain other capitalized terms used herein being
hereinafter defined), to purchase from Waste-Quip, Inc., a corporation organized
under the laws of the State of Ohio (the "Company"), the number of shares of
Common Stock (as subject to vesting and adjustment as provided herein) of the
Company determined as follows: (i) if, as of the date which is 90 days
subsequent to the Original Issue Date, the aggregate principal amount loaned
under both (A) the Subordinated Loan Agreement, dated as of the Original Issue
Date, among BOCPII, the Company and Waste-Quip Manufacturing Company, an Ohio
corporation ("WQMC"), and (B) the Subordinated Loan Agreement, dated as of the
Original Issue Date, among BOCP, the Company and WQMC (such aggregate amount
being the "Aggregate Loan Amount"), equals $9,000,000, such number shall be
142,376, and (ii) if, as of such date such amount is $10,000,000, such number
shall be 146,081, in each case representing 9.35% of the Fully Diluted
Outstanding Common Stock of the Company as of the Original Issue
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Date, at a per share purchase price equal to $0.005 (the initial "Current
Warrant Price", as subject to adjustment as provided herein), all on the terms
and conditions and pursuant to the provisions hereinafter set forth. This
Warrant is issued pursuant to that certain Warrant Purchase Agreement (as
defined herein) in connection with the transactions contemplated by the Loan
Agreement (as defined herein).
1. DEFINITIONS
As used in this Warrant, the following terms have the
respective meanings set forth below:
"Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company after the Original Issue Date other than any
shares of Common Stock issuable upon the exercise of the Warrant and the BOCPII
Warrant.
"Affected Holder" shall have the meaning set forth in
Section 12.3 hereof.
"Affiliate" shall mean, as applied to any Person, any other
Person that directly or indirectly controls, is controlled by, or is under
common control with, that Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to vote fifty percent (50%) or
more of the securities having voting power for the election of directors of such
Person or otherwise to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise; provided that Xxxxxx X. May shall not be deemed to be
an Affiliate of the Company. For purposes of this definition, "Affiliates" of
BOCPII and BOCP shall include the other, Banc One Capital Corporation and their
respective Affiliates.
"Aggregate Loan Amount" shall have the meaning ascribed to
that term on the first paragraph of this Warrant.
"Applicable Law" shall mean a statute, law (including common
law), treaty, rule, code, ordinance, regulation, permit, license, certificate,
order, judgment, decree, injunction, writ, or other binding determination or
like action of any Governmental Authority, as in effect from time to time.
"Appraisal Triggering Event" shall mean a receipt by the
Company of a Repurchase Notice or the occurrence of any of the events described
in (ii), (iii) or (iv) under the definition of "Repurchase Period" in Section 1
hereof in connection with which an Appraised Value is required to be determined
hereunder.
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"Appraised Value" per share of Common Stock as of a date
specified herein shall mean the value of such a share as of such date (i) as
agreed to in a writing signed by the Company and by the majority of the holders
whose Warrants or shares of Warrant Stock are being valued or, if the Company
and such majority do not so agree within fourteen (14) days of the Appraisal
Triggering Event, (ii) as determined by an investment bank or appraiser of
nationally recognized standing selected by the Company and reasonably acceptable
to the majority of the holders whose Warrants or shares of Warrant Stock are
being valued. If the investment bank or appraiser selected by the Company is not
acceptable to such holders and the Company and such holders cannot agree within
twenty-one (21) days of the Appraisal Triggering Event on an eventually
acceptable investment bank or appraiser, then the Company and such holders shall
each choose within twenty-eight (28) days of the Appraisal Triggering Event one
such investment bank or appraiser and the respective chosen firms shall jointly
select within thirty-five (35) days of the Appraisal Triggering Event a third
investment bank or appraiser, which shall make the determination within
fifty-six (56) days of the Appraisal Triggering Event. The Company shall pay the
costs and fees of any investment bank or appraiser selected by it, the holders
shall pay the costs and fees of any investment bank or appraiser selected by
them, and the Company and the holders shall each pay half of the costs and fees
of any third such investment bank or appraiser. Such Appraised Value shall be
determined on the basis of (i) the value of the entire Company as a going
concern and with no loss of key management and (ii) the number of Fully Diluted
Outstanding shares of Common Stock as of such date. No discount shall be applied
on account of (A) any equity interest being a minority interest or (B) any lack
of liquidity of the Common Stock or the fact that the Company may have no class
of equity securities registered under the Exchange Act.
"BOCPII" shall mean Banc One Capital Partners II Limited
Partnership, a Delaware limited partnership, and any successor entity.
"BOCP" shall mean Banc One Capital Partners Corporation, a
Texas corporation, and any successor entity.
"BOCPII Warrant" shall mean the warrant to purchase Common
Stock, dated as of even date herewith, issued to BOCPII, and all warrants issued
upon transfer, division or combination of, or in substitution for, said warrant
or any other such warrant.
"Book Value" per share of Common Stock as of any specified
date shall mean the consolidated book value of the Company and its Subsidiaries
as of that date, divided by the number of Fully Diluted Outstanding shares of
Common Stock as of such date. Such book value shall be determined in accordance
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with GAAP, except that there shall be no reduction in such book value by reason
of any amount that may be required either as an offset to or reserve against
retained earnings or as a deduction from book value as a result of the
existence, issuance, anticipated exercise of or anticipated cost to the Company
of the repurchase of any of the Warrants.
"Business Day" shall mean a day of the year on which banks are
not required or authorized to close in Chicago, Illinois or in Ohio.
"Calculation Rate", as of a date, shall mean the amount
calculated as of that date to be the historical annualized internal rate of
return on the Loan, as defined in the Loan Agreement, calculated by including in
the amount of such return all of the following amounts (i) all interest and
principal paid in accordance with the terms of said Loan; (ii) all closing and
success fees paid under Sections 1.5 and 1.6 of the Loan Agreement; (iii) all
Dilution Fees paid; and (iv) the Fair Value of the Warrant Stock, less the
Warrant Price, calculated as of that date.
"Change of Control" shall mean any event, including without
limitation an issuance of Additional Shares of Common Stock or shares of any
other class or series of capital stock of the Company or Convertible Securities,
that would or could result in the owners or holders of shares of Common Stock
and Convertible Securities on the Original Issue Date owning (or having rights
to exercise or exchange such Convertible Securities for or into), in the
aggregate, less than one-half of the Fully Diluted Outstanding Shares of Common
Stock.
"Commission" shall mean the Securities and Exchange Commission
or any other federal agency then administering the Securities Act and other
federal securities laws.
"Common Stock" shall mean the Company's Class A Common Shares,
without par value.
"Company" shall mean Waste-Quip, Inc., a corporation organized
under the laws of the State of Ohio, and any successor corporation.
"Company Default" shall mean (a) the breach of any warranty or
the inaccuracy at the time when made of any representation made by the Company
herein or (b) the failure by the Company to comply with any covenant of the
Company contained herein.
"Consolidated" refers to the consolidation of the
accounts of a Person and its Subsidiaries in accordance with GAAP.
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"Convertible Securities" shall mean evidences of indebtedness,
shares of stock or other securities that are convertible into or exchangeable
for, with or without payment of additional consideration in cash or property, or
options, warrants or other rights that are exercisable for, shares of Common
Stock that, when issued, would constitute Additional Shares of Common Stock,
either immediately or upon the occurrence of a specified date or a specified
event.
"Current Warrant Price" shall mean, in respect of a share of
Common Stock at any date herein specified, the initial Current Warrant Price set
forth in the preamble of this Warrant as adjusted pursuant to Section 4 hereof.
"Default Rate" shall mean an interest rate of fifteen percent
(15%) per annum.
"Designated Office" shall have the meaning set forth in
Section 11 hereof.
"Dilution Fee" shall have the meaning set forth in
Section 13 hereof.
"Disabling Condition" shall have the meaning set forth in
Section 12.4 hereof.
"Earnings Value" shall mean an amount equal to (i) six (6)
times the Consolidated earnings of the Company and its Subsidiaries before
amortization, depreciation, interest and taxes for the preceding fiscal year,
less outstanding Indebtedness, plus the average amount of cash and marketable
securities of the Company for the preceding fiscal year (using month end
balances to obtain such average), divided by (ii) the number of Fully Diluted
Outstanding shares of Common Stock, as of such date.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Exercise Notice" shall have the meaning set forth in
Section 2.1 hereof.
"Exercise Period" shall mean the period during which this
Warrant is exercisable pursuant to Section 2.1 hereof.
"Fair Value" per share of Common Stock as of any specified
date shall mean (i), if the Fair Value is being determined in connection with an
Initial Public Offering, the IPO Price per share of Common Stock as of such date
or (ii) otherwise, the higher of (A) the Book Value as of the last day of
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the fiscal quarter last preceding the occurrence of the event requiring such
Fair Value to be determined, and (B) the Earnings Value per share of Common
Stock as of such date.
"Fully Diluted Outstanding" shall mean, when used with
reference to Common Stock, at any date as of which the number of shares thereof
is to be determined, all shares of Common Stock Outstanding at such date and the
maximum number of shares of Common Stock issuable in respect of Convertible
Securities and options and warrants to purchase shares of Common Stock or
Convertible Securities outstanding on such date (whether or not the rights to
convert, exchange or exercise thereunder are presently exercisable), including
the maximum number of shares issuable under the Warrants; provided that the
maximum number of shares of Common Stock issuable in respect of Convertible
Securities and options and warrants to purchase shares of Common Stock or
Convertible Securities outstanding on such date shall be adjusted in accordance
with the "treasury stock" method determined under GAAP pursuant to Accounting
Principles Board Opinion 15.
"GAAP" shall mean generally accepted accounting principles in
the United States of America as from time to time in effect.
"Governmental Authority" shall mean any nation or government,
any federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Holder" shall mean the Person in whose name the Warrant set
forth herein is registered on the books of the Company maintained for such
purpose.
"Incidental Registration Rights Notice" shall mean a notice
under the Shareholders Agreement that the Company has determined to proceed with
the actual preparation and filing of a registration statement under the
Securities Act of 1933, as amended, in connection with the proposed offer and
sale of any of its securities by it or any of its security holders (other than
on Form S-4 or Form S-8, or any successor or similar forms).
"Indebtedness" shall have the meaning specified in the Loan
Agreement, other than any and all obligations of the Company to purchase,
redeem, retire, defease or otherwise acquire for value any capital stock of the
Company or any warrants, rights or options to acquire such capital stock,
however valued, and whether or not currently exercisable.
"Initial Public Offering" shall mean the first public offering
of shares of the Company's Common Stock pursuant to a
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registration statement filed with the Commission.
"IPO Price" shall mean the daily market price of a share of
Common Stock of the Company, as of the date of the issuance of Common Stock in
connection with the Initial Public Offering. The "daily market price" for such
day shall be (i) the last sale price on such day on the principal stock exchange
on which such Common Stock is then listed or admitted to trading, or (ii) if
such Common Stock is not then listed or admitted to trading on any stock
exchange, the average of the last reported closing bid and asked prices on such
day in the over-the-counter market, (A) as furnished by the National Association
of Securities Dealers Automatic Quotation System or the National Quotation
Bureau, Inc., or (B) if neither such corporation at the time is engaged in the
business of reporting such prices, as furnished by any similar firm then engaged
in such business, or (C) if there is no such firm, as furnished by any member of
the National Association of Securities Dealers, Inc., or any successor
corporation thereto, reasonably selected by the Company.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, conditional sale agreement, deposit arrangement,
security interest, encumbrance, lien (statutory or other), proxy, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever in respect of any property (whether now owned or hereafter
acquired) of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under any lease having substantially the same
economic effect as any of the foregoing and the filing of any financial
statement or similar notice (other than a precautionary financing statement
filed by a "true" lessor pursuant to Section 9-408 of the Uniform Commercial
Code), naming the owner of such property as debtor, under the Uniform Commercial
Code or other comparable law of any jurisdiction.
"Loan Agreement" shall mean the Loan Agreement dated as of May
26, 1994, between the Company and BOCP, as such agreement may be amended,
supplemented or modified from time to time.
"Majority Warrant Holders" shall mean the holders of Warrants
exercisable for the purchase of more than fifty percent (50%) of the aggregate
number of shares of Warrant Stock then purchasable upon exercise of all
Warrants.
"Mayfab Warrant" shall mean the warrant to purchase Common
Stock, dated as of even date herewith, issued to May Fab - Oklahoma, Inc., a
Texas corporation, and all warrants issued upon transfer, division or
combination of, or in substitution for, said warrant or any other such warrant.
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"Officers' Certificate" shall mean a certificate executed on
behalf of the Company by its Chairman, its President or one of its Vice
Presidents and by its Chief Financial Officer or its Treasurer.
"Opinion of Counsel" shall mean a written opinion of counsel
experienced in securities laws chosen by the holder of this Warrant or Warrant
Stock issued upon the exercise hereof, such opinion and such counsel being
reasonably acceptable to the Company.
"Original Issue Date" shall mean the date on which the
Original Warrant is issued, as set forth on the cover page of this Warrant.
"Original Warrant" shall mean the Warrant originally issued by
the Company to BOCP on the Original Issue Date.
"Outstanding" shall mean, when used with reference to Common
Stock, at any date as of which the number of shares thereof is to be determined,
all issued shares of Common Stock, except shares then owned or held by or for
the account of the Company or any Subsidiary thereof, and shall include all
shares issuable in respect of outstanding scrip or any certificates representing
fractional interests in shares of Common Stock.
"Person" shall mean an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture or other entity, or a Governmental Authority.
"Preferred Stock" shall mean the Company's Preferred
Shares, without par value.
"Put" shall have the meaning set forth in Section 12.1
hereof.
"Repurchase Notice" shall have the meaning set forth in
Section 12.1 hereof.
"Repurchase Period" shall mean the period beginning on the
first to occur of (i) the fifth anniversary of the Original Issue Date, (ii) any
merger or consolidation of the Company with another Person pursuant to which the
Company is not the surviving entity, (iii) the sale or other disposition
(including disposition by merger or consolidation) by the Company or any
Subsidiary of assets (including the stock of any Subsidiary) representing more
than sixty percent (60%) of either (A) the aggregate fair market value of the
assets of the Company and its Subsidiaries determined on a Consolidated basis or
(B) the total revenues of the Company and its Subsidiaries determined on a
Consolidated basis, (iv) a Change of Control, (v) the repayment
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in full of all Obligations (as such term is defined in the Loan Agreement) under
the Loan Agreement, and (vi) the occurrence of an Event of Default under the
Loan Agreement, and ending on the first to occur of (y) the tenth anniversary of
the Original Issue Date or (z) the date of receipt by the Holder of an
Incidental Registration Rights Notice; provided, however, that if the Repurchase
Period shall be deemed to have ended upon the receipt by the Holder of an
Incidental Registration Rights Notice, the Repurchase Period shall be reinstated
and thereupon shall continue to be in effect upon the earlier to occur of (A)
the abandonment by the Company of the proposed offer or sale addressed in the
Incidental Registration Rights Notice or (B) 270 days following the occurrence
of the receipt by the Holder of Incidental Registration Rights Notice if such
proposed offer or sale has not then closed.
"Repurchase Price" shall have the meaning set forth in
Section 12.1 hereof.
"Restricted Common Stock" shall mean shares of Common Stock
which are, or which upon their issuance on the exercise of this Warrant would
be, evidenced by a certificate bearing the restrictive legend set forth in
Section 8.1(a) hereof.
"Shareholders Agreement" shall mean that certain Shareholders
Agreement, dated August 4, 1989, among the Company, Primus Capital Fund II
Limited Partnership, an Ohio limited partnership, Xxxxxxxxxxxx Venture Partners
II, an Ohio limited partnership, and certain shareholders of the Company
(collectively, the "Original Shareholders Agreement Parties"), as amended by
that certain Amendment No. 1 to Shareholders Agreement, dated May 26, 1994,
among the Original Shareholders Agreement Parties, BOCP and BOCPII, and as
further modified, supplemented and amended in accordance with its terms.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other Persons performing similar functions are at the time directly or
indirectly owned or controlled by such Person, one or more of the other
subsidiaries of such Person or any combination thereof.
"Transfer" shall mean any disposition of any Warrant or
Warrant Stock or of any interest in either thereof, which would constitute a
sale thereof within the meaning of the Securities Act.
"Warrant Price" shall mean an amount equal to (i) the number
of shares of Common Stock being purchased upon exercise of this Warrant pursuant
to Section 2.1 hereof, multiplied by (ii) the Current Warrant Price as of the
date of such exercise.
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"Warrant Purchase Agreement" shall mean the Warrant Purchase
Agreement dated as of May 26, 1994, between the Company and BOCPII, as such
agreement may be amended, supplemented or modified from time to time.
"Warrants" shall mean the Original Warrant and all Warrants
issued upon transfer, division or combination of, or in substitution for, such
Original Warrant or any other such Warrant.
"Warrant Stock" shall mean the shares of Common Stock issued,
issuable or both (as the context may require) to the holders of Warrants upon
the exercise thereof or issued upon the transfer of such shares until such time
as such shares of Common Stock have either been sold in a public offering
pursuant to a registration statement filed under the Securities Act or sold
pursuant to Rule 144 thereunder.
2. EXERCISE OF WARRANT
2.1 MANNER OF EXERCISE. From and after the earliest of (i) the
date the Repurchase Period begins, (ii) the second anniversary of the Original
Issue Date or (iii) the receipt by the Holder of an Incidental Registration
Rights Notice, and until the earlier of (y) such time as this Warrant has been
fully exercised or (z) the tenth anniversary of the Original Issue Date, the
Holder may from time to time exercise this Warrant, on any Business Day, for all
or any part (exceeding 10%) of the number of shares of Common Stock then
purchasable hereunder.
In order to exercise this Warrant, in whole or in part, the
Holder shall deliver to the Company at the Designated Office (i) a written
notice of the Holder's election to exercise this Warrant (an "Exercise Notice"),
which Exercise Notice shall specify the number of shares of Common Stock to be
purchased, (ii) payment of the Warrant Price and (iii) this Warrant. Such
Exercise Notice shall be in the form of the subscription form appearing at the
end of this Warrant as ANNEX A, duly executed by the Holder or its duly
authorized agent or attorney. Upon receipt of an Exercise Notice, the Company
shall, as promptly as practicable, and in any event within thirty (30) calendar
days thereafter, execute (or cause to be executed) and deliver (or cause to be
delivered) to the Holder a certificate or certificates representing the
aggregate number of full shares of Common Stock issuable upon such exercise,
together with cash in lieu of any fraction of a share, as hereafter provided.
The stock certificate or certificates so delivered shall be, to the extent
possible, in such denomination or denominations as such Holder shall reasonably
request in the Exercise Notice and shall be registered in the name of the Holder
or such other name (provided that such Person is permitted to be a transferee
hereunder) as shall be designated in the Exercise Notice. This
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Warrant shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and the Holder or any other
Person so designated to be named therein shall be deemed to have become a holder
of record of such shares for all purposes, as of the date the items specified in
clauses (i) through (iii) above are received by the Company. If this Warrant
shall have been exercised in part, the Company shall, at the time of delivery of
the certificate or certificates representing the shares of Common Stock being
issued, deliver to the Holder a new Warrant evidencing the rights of the Holder
to purchase the unpurchased shares of Common Stock called for by this Warrant,
which new Warrant shall in all other respects be identical with this Warrant,
or, at the request of the Holder, appropriate notation may be made on this
Warrant and the same returned to the Holder.
Payment of the Warrant Price may be made, at the option of the
Holder, either in cash or by certified or official bank check.
2.2 PAYMENT OF TAXES. All shares of Common Stock issuable upon
the exercise of this Warrant pursuant to the terms hereof shall be validly
issued, fully paid and nonassessable, issued without violation of any preemptive
rights and free and clear of all Liens (other than any created by actions of the
Holder). The Company shall pay all expenses in connection with, and all taxes
and other governmental charges that may be imposed with respect to, the issue or
delivery thereof, unless such tax or charge is imposed by Applicable Law upon
the Holder, in which case such taxes or charges shall be paid by the Holder, and
the Company shall reimburse the Holder therefor (other than for net income,
personal property or capital gains taxes) on an After-Tax Basis. Notwithstanding
the foregoing sentence, the Company shall not be required to pay or reimburse
the Holder for that portion, if any, of such taxes and other governmental
charges that may be imposed with respect to such issue or delivery which are
solely attributable to a difference in status between BOCP and any other Holder
hereof for purposes of determining the imposition or amount of such taxes and
other governmental charges. As used in this Section 2.2, "After-Tax Basis", when
referring to a payment that is required hereunder (the "Target Amount"), shall
mean a total payment (the "Total Amount") that, after deduction of all federal,
state and local taxes that are required to be paid by the recipient in respect
of-the receipt or accrual of such Total Amount, is equal to the Target Amount.
2.3 FRACTIONAL SHARES. The Company shall not be required to
issue a fractional share of Common Stock upon exercise of any Warrant. As to any
fraction of a share that the Holder of one or more Warrants, the rights under
which are exercised in the same transaction, would otherwise be entitled to
purchase upon such exercise, the Company shall pay a cash
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adjustment in respect of such final fraction in an amount equal to the same
fraction of the Fair Value of one share of Common Stock on the date of exercise.
2.4 CONTINUED VALIDITY AND APPLICATION. A holder of shares of
Warrant Stock issued upon the exercise of this Warrant, in whole or in part,
including any transferee of such shares (other than a transferee who acquires
such shares after the same have been publicly sold pursuant to a registration
statement under the Securities Act or sold pursuant to Rule 144 or Rule 144A
thereunder), shall continue, with respect to such shares, to be entitled to all
rights and to be subject to all obligations that are applicable to such holder
by the terms of this Warrant and by the terms of the Shareholders Agreement. The
terms of the Shareholders Agreement are incorporated herein by reference as if
fully rewritten herein, and each such holder and transferee, and each holder and
transferee of this Warrant, hereby acknowledges and agrees that it is deemed to
be a party to the Shareholders Agreement by virtue of having accepted the
issuance or transfer of the Warrant Stock or this Warrant.
The Company shall, at the time of each exercise of this
Warrant, in whole or in part, upon the request of the holder of the shares of
Warrant Stock issued upon such exercise hereof (including any such transferee),
acknowledge in writing, in form reasonably satisfactory to such holder, its
continuing obligation to afford to such holder such rights referred to in this
Section 2.4; PROVIDED, HOWEVER, that if such holder shall fail to make any such
request, such failure shall not affect the continuing obligation of the Company
to afford to such holder all such rights.
At the time of any exercise of this Warrant or of any transfer
of this Warrant or shares of Warrant Stock pursuant to Section 3 and Section 8
hereof, as a condition to such exercise or transfer, any Person acquiring this
Warrant or shares of such Warrant Stock in such transaction shall, if so
requested by the Company, acknowledge in writing in a form reasonably
satisfactory to the Company, that such holder will be subject to the continuing
obligations referred to in this Section 2.4.
3. TRANSFER, DIVISION AND COMBINATION
3.1 TRANSFER. Subject to compliance with Sections 8 and 12,
each transfer of this Warrant and all rights hereunder, in whole or in part,
shall be registered on the books of the Company to be maintained for such
purpose, upon surrender of this Warrant at the Designated Office, together with
a written assignment of this Warrant in the form of ANNEX B hereto duly executed
by the Holder or its agent or attorney and, if such transfer is not to be made
pursuant to Section 12, funds sufficient to pay any transfer taxes payable upon
the making of
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such transfer. Notwithstanding the foregoing, the Holder may not transfer this
Warrant to a Person which is, or which is an Affiliate of a Person which is,
engaged in the business of manufacturing and selling material handling and
related equipment for the waste management industry. Upon such surrender and
delivery, and, if required, such payment, the Company shall, subject to Section
8, execute and deliver a new Warrant or Warrants in the name of the assignee or
assignees and in the denominations specified in such instrument of assignment,
and shall issue to the assignor a new Warrant evidencing the portion of this
Warrant not so assigned and this Warrant shall promptly be cancelled. A Warrant,
if properly assigned in compliance with Section 8, may be exercised by the new
Holder for the purchase of shares of Common Stock without having a new Warrant
issued.
3.2 DIVISION AND COMBINATION. Subject to compliance with
Section 8, this Warrant may be divided or combined with other Warrants upon
presentation thereof at the Designated Office, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance with
Section 3.1 and with Section 8 as to any transfer which may be involved in such
division or combination, the Company 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.
3.3 EXPENSES. The Company shall prepare, issue and deliver at
its own expense (other than transfer taxes) any new Warrant or Warrants required
to be issued under this Section 3.
3.4 MAINTENANCE OF BOOKS. The Company agrees to maintain, at
the Designated Office, books for the registration and transfer of the Warrants.
4. ANTIDILUTION PROVISIONS; PREEMPTIVE RIGHTS; VESTING;
ADJUSTMENT UPON THE HAPPENING OF CERTAIN EVENTS
4.1 ADJUSTMENT OF NUMBER OF SHARES PURCHASABLE AND EXERCISE
PRICE. The number of shares of Common Stock for which this Warrant is
exercisable, and the price at which such share may be purchased upon exercise of
this Warrant, shall be subject to adjustment from time to time as is more fully
set forth in this Section 4.
(a) ADJUSTMENT OF EXERCISE PRICE. In the event the Company
shall
(i) declare a dividend or make a distribution on its
Outstanding Common Stock in Common Stock or Convertible Securities, or
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(ii) subdivide or reclassify any of its Outstanding Common
Stock into a greater number of shares, or
(iii) combine or reclassify any of its Outstanding Common
Stock into a smaller number of shares,
then, upon the occurrence of such event or action, the Current
Warrant Price shall be adjusted, effective immediately after the record date for
such dividend or distribution or the effective date of such subdivision,
combination or reclassification, to the price calculated by multiplying the
Current Warrant Price in effect immediately prior to such record date or
effective date by a fraction, the numerator of which is the total number of
Fully Diluted Outstanding shares of Common Stock immediately prior to giving
effect to such dividend, distribution, subdivision, combination or
reclassification, and the denominator of which is the total number of shares of
Fully Diluted Outstanding shares of Common Stock immediately after giving effect
to such dividend, distribution, subdivision, combination or reclassification.
(b) ADJUSTMENT OF NUMBER OF SHARES PURCHASABLE. Upon any
adjustment of the Current Warrant Price as provided in this Section 4.1, the
holder hereof shall thereafter be entitled to purchase, at the Current Warrant
Price resulting from such adjustment, the number of shares of Common Stock
(calculated to the nearest .001 of a share) obtained by multiplying the Current
Warrant Price in effect immediately prior to such adjustment by the number of
shares of Common Stock issuable on the exercise hereof immediately prior to such
adjustment and dividing the product thereof by the Current Warrant Price
resulting from such adjustment.
(c) CALCULATION OF ADJUSTMENT. Any adjustment of the Current
Warrant Price pursuant to this section shall be calculated to $.000001 per share
of Common Stock.
(d) REORGANIZATION, RECLASSIFICATION OR RECAPITALIZATION OF
COMPANY. In case of any capital reorganization or reclassification or
recapitalization of the capital stock of the Company (other than in the cases
referred to in subsection (a)(i), (ii), or (iii) of this Section 4.1), or in
case of the consolidation or merger of the Company with or into another
corporation, or in case of the sale or transfer of the property of the Company
as an entirety or substantially as an entirety, there shall thereafter be
deliverable upon the exercise of this Warrant or any portion thereof (in lieu of
or in addition to the number of shares of Common Stock theretofore deliverable,
as appropriate) the number of shares of stock or other securities or property to
which the holder of the number of shares of Common Stock which would otherwise
have been deliverable upon the exercise of this Warrant or any portion hereof at
the time would have been entitled upon such capital reorganization or
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reclassification of capital stock, consolidation, merger or sale, and at the
same aggregate Current Warrant Price.
Prior to and as a condition of the consummation of any
transaction described in the preceding sentence, the Company shall cause
effective provisions to be made so that the Holder shall have the right
thereafter by exercising the Warrant to purchase the kind and amount of shares
of stock or other securities or property which would have been receivable upon
such consummation had this Warrant been exercised in full immediately prior
thereto. Any such provisions shall also include adjustments which shall be as
nearly equivalent as practicable to the adjustments as provided for in this
Section 4. Any such adjustment shall be made by and set forth in a supplemental
agreement between the Company and the successor entity which agreement shall
bind such entity, shall be accompanied by an opinion of counsel as to the
enforceability of such agreement and shall be approved by the Majority Warrant
Holders, which approval shall not be unreasonably withheld.
(e) OTHER DILUTIVE EVENTS. In case any event shall occur as to
which the other provisions of this Section 4 are not strictly applicable but the
failure to make any adjustment would not fairly protect the purchase rights
represented by this Warrant in accordance with the essential intent and
principles hereof, then the Holder of this Warrant may request in writing within
120 days after the occurrence of such event that the Company examine the
propriety of an adjustment to the Current Warrant Price and number of shares of
Common Stock subject to this Warrant. Unless the Company and the Holder of this
Warrant shall have theretofore mutually agreed upon an adjustment, or that no
adjustment is required, within thirty (30) days after the receipt of such
request, the Company shall appoint a firm of independent public accountants of
recognized national standing (which may be the regularly engaged accountants of
the Company), to give an opinion upon the adjustment, if any, on a basis
consistent with the essential intent and principles established in this Section
4, necessary to preserve, the purchase rights represented by this Warrant. Upon
receipt of such opinion, the Company will promptly mail a copy thereof to the
holder of this Warrant and shall make the adjustments described therein. If such
opinion states that no such adjustment is necessary, the holder hereof shall
reimburse the Company for one-half of the cost and expense of such opinion.
(f) RECORD DATE. In case the Company shall take a record of
the holders of the Common Stock for the purpose of entitling them (i) to receive
a dividend or other distribution payable in Common Stock or in Convertible
Securities or (ii) to subscribe for or purchase Common Stock or Convertible
Securities, then all references in this Section 4 to the date of the issue or
sale of the shares of Common Stock deemed to have been issued or
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sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be, shall be deemed to be references to such record
date.
4.2 RIGHTS OFFERING. In the event the Company shall effect an
offering of Common Stock pro rata among its stockholders, the holder hereof
shall be entitled, at its option, to elect to participate in each and every such
offering as if this Warrant had been exercised and such holder were, at the time
of any such rights offering, then a holder of that number of shares of Common
Stock to which such holder is then entitled on the exercise hereof.
4.3 PREEMPTIVE RIGHTS.
(a) GENERAL. Subject to the provisions of Section 4.3(b)
hereof, (i) the Company shall notify in writing the Holder of this Warrant or
holder of shares of Warrant Stock issued upon the exercise of this Warrant
(each, a "Preemptive Rights Offeree") of any issuance or sale of Additional
Shares of Common Stock or Convertible Securities and (ii) each Preemptive Rights
Offeree shall, upon the issuance or sale by the Company of Additional Shares of
Common Stock or Convertible Securities, have the right, during the period
beginning at such issuance or sale and ending on the thirtieth (30th) day
following the receipt by the Preemptive Rights Offeree of such notification and
on the same terms and conditions as such issuance or sale, to purchase
additional shares of Common Stock of the Company sufficient to maintain the
percentage of the Fully Diluted Outstanding shares of Common Stock which such
Preemptive Rights Offeree owns, or would be entitled to purchase upon the
exercise of this Warrant (regardless of whether this Warrant is then
exercisable), determined immediately prior to such issuance or sale.
(b) EXCEPTIONS TO PREEMPTIVE RIGHTS. Notwithstanding the
provisions of Section 4.3(a) hereof, the Company shall not be required to
provide the notice or grant the rights provided for in Section 4.3(a) in
connection with
(i) issuances or sales of Common Stock or Convertible
Securities upon the exercise of Convertible Securities which are
Outstanding on the Original Issue Date, including without limitation
this Warrant or the BOCP Warrant;
(ii) the issuance of shares of Common Stock pursuant to a
rights offering in which the holder hereof elects to participate under
the provisions of Section 4.2;
(iii) the issuance or sale of Common Stock or Convertible
Securities in connection with the acquisition by the Company of a
business, which issuance or sale has been
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approved by a unanimous vote of the Board of Directors of the Company;
or
(iv) the issuance or sale of Common Stock or Convertible
Securities in connection with the granting of management employee
incentives, so long as such grant has been approved by the Compensation
Committee of the Board of Directors of the Company and by the Board of
Directors of the Company.
4.4 CERTIFICATES AND NOTICES.
(a) ADJUSTMENTS TO CURRENT WARRANT PRICE. Upon any adjustment
of the Current Warrant Price, a certificate, signed (i) by the Chairman, the
President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the Company, or (ii) by any
independent firm of certified public accountants of recognized national standing
selected by, and at the expense of, the Company, setting forth in reasonable
detail the events requiring the adjustment and the method by which such
adjustment was calculated, shall be mailed to the holder of this Warrant
specifying the adjusted Current Warrant Price and the number of shares of Common
Stock issuable upon exercise of such holder's Warrant after giving effect to the
adjustment of such number pursuant to subsection (b) of Section 4.1.
(b) EXTRAORDINARY CORPORATE EVENTS. In case at any time while
this Warrant is Outstanding, (i) the Company proposes to pay any dividend
payable in stock to the holders of shares of Common Stock or to make any other
distribution to the holders of shares of Common Stock; (ii) the Company proposes
to offer to the holders of shares of Common Stock rights to subscribe for or
purchase any additional shares of any class of stock or any other rights or
options; (iii) the Company proposes to effect any reclassification of Common
Stock (other than a reclassification involving merely the subdivision or
combination of outstanding shares of Common Stock); (iv) the Company proposes to
effect any capital reorganization, consolidation or merger; (v) the Company
proposes to effect any sale, transfer or other disposition of its property,
assets and business as an entirety or substantially as an entirety; (vi) the
Company proposes to commence the liquidation, dissolution or winding up of the
Company; or (vii) the Company proposes to issue to any person or persons any
options or other rights to subscribe for or to purchase shares of Common Stock
or any Convertible Securities which would cause such acquiror or acquirors,
collectively, to own, and/or to have the right to obtain ownership, upon
exercise of such options or other rights or upon conversion or exchange of such
Convertible Securities, of an aggregate of 50% or more of the then Fully-Diluted
Outstanding shares of Common Stock of the Company; or (viii) any action or
transaction giving rise to a Put Right is
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proposed to occur, then, in each such case, the Company shall mail to the Holder
of this Warrant notice of such proposed action, which shall specify the date on
which the books of the Company shall close, or a record shall be taken, for
determining the holders of Common Stock entitled to receive such stock dividends
or other distribution or such rights or options, or the date on which such
reclassification, reorganization, consolidation, merger, sale, transfer, other
disposition, liquidation, dissolution, winding up, issuance, sale or other
transfer or action shall take place or commence, as the case may be, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to receive securities or other property deliverable upon such action,
if any such date is to be fixed. In the case of any action covered by clause (i)
or (ii) above, such notice shall be mailed at least 10 days prior to the record
date for determining holders of Common Stock for purposes of receiving such
payment or offer. In the case of any action covered by clause (iii), (iv), (v),
(vi) or (vii), such notice: shall be mailed at least 30 days prior to the date
upon which such action takes place or commences, as the case may be, and 20 days
prior to any record date to determine holders of Common Stock entitled to
receive any such securities or other property; and such notice shall provide
full particulars regarding such action.
(c) EFFECT OF FAILURE. Failure to file any certificate or
notice or to mail any notice, or any defect in any certificate or notice,
pursuant to this Section 4.4 shall not affect the legality or validity of the
adjustment of the Current Warrant Price, the number of shares of Common Stock
purchasable upon exercise of this Warrant, or any transaction giving rise
thereto.
4.5 VESTING. The number of shares of Warrant Stock otherwise
issuable to the Holder of this Warrant shall vest, and be exercisable, only in
accordance with this Section 4.5.
(i) Subject to the provisions of Sections 4.5(ii) and (iii),
during the periods indicated in the following table, the Holders of
this Warrant shall be vested in, and shall be entitled to exercise, the
Warrants for an aggregate amount of Warrant Stock determined by
multiplying the indicated percentage (which is dependant upon the
applicable Aggregate Loan Amount, as indicated) by the amount of
Warrant Stock otherwise issuable to the Holder of this Warrant:
Aggregate Loan Amount
$9,000,000 $10,000,000
Period Percentage Percentage
------ ---------- ----------
Beginning on May 26, 1994 and ending 28.198% 28.342%
May 26, 1995
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Beginning on May 26, 1995 and ending 45.858 45.946
on February 26, 1996
Beginning on February 26, 1996 and 51.744 51.813
ending on May 26, 1996
Beginning on May 26, 1996 and ending 56.395 56.373
on August 26, 1996
Beginning on August 26, 1996 and 61.047 60.933
ending on November 26, 1996
Beginning on November 26, 1996 and 65.698 65.492
ending on February 26, 1997
Beginning on February 26, 1997 and 70.349 70.052
ending on May 236, 1997
Beginning on May 26, 1997 and ending 73.256 73.005
on August 26, 1997
Beginning on August 26, 1997 and 76.163 75.959
ending on November 26, 1997
Beginning on November 26, 1997 and 79.070 78.912
ending on February 26, 1998
Beginning on February 26, 1998 and 81.977 81.865
ending on May 26, 1998
Beginning on May 26, 1998 and ending 86.483 86.399
on August 26, 1998
Beginning on August 26, 1998 and 90.988 90.933
ending on November 26, 1998
Beginning on November 26, 1998 and 95.494 95.466
ending on February 26, 1999
Beginning on February 26, 1999 and 100.000 100.000
thereafter
(ii) Notwithstanding the provisions of Section 4.5(i), each
stated periodic increase in the indicated percentage shall be decreased
by the amount, if any, calculated by multiplying the stated increase by
a fraction, the numerator of which is the amount of the unpaid
principal balance under the Loan Agreement as of the end of the period
immediately preceding the date of such increase, and the denominator of
which is (A) $5,000,000 if the Aggregate Loan Amount is $10,000,000 or
(B) $4,000,000 if the Aggregate Loan Amount is $9,000,000. As a result
of any and all such
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decreases, the subsequent stated periodic increases shall be reduced by
the aggregate amount of such decreases.
(iii) Notwithstanding the provisions of Section 4.5(i), on the
date on which all of the obligations, as defined in the Loan Agreement,
are satisfied in full, the percentage, determined in accordance with
Section 4.5(i), applicable to the period during which the Obligations
are so satisfied shall thereupon be fixed, and shall no longer increase
in accordance with Section 4.5(i).
4.6 ADJUSTMENT UPON THE HAPPENING OF CERTAIN EVENTS. Upon the
occurrence of any of the events described in (ii), (iii), (iv) or (v) under the
definition of "Repurchase Period" in Section 1 hereof, the number of shares of
Common Stock for which this Warrant is exercisable shall be adjusted as follows:
(i) If the Calculation Rate, calculated on the date of such
occurrence, is less than 21%, then the number of shares of Warrant
Stock shall thereupon and without any further action be increased by
that number which is sufficient to cause the Calculation Rate to equal
21%; provided that, in lieu of such increase in the number of shares of
Common Stock, the Company may instead immediately pay to the Holder
that amount of cash which would cause the Calculation Rate to equal
21%; provided further that the aggregate of (A) the number of
shares of Common Stock for which this Warrant is exercisable after
giving effect to such increase and (B) the number of shares of Common
Stock for which the BOCPII Warrant is then exercisable is restricted to
the number which is equal to 49% of the then Fully Diluted Outstanding
shares of Common Stock. If such increase is so restricted in accordance
with the proviso to the preceding sentence, then the Company shall in
addition immediately pay to the Holder that amount of cash which would
cause the Calculation Rate to equal 21%.
(ii) If the Calculation Rate, calculated on the date of such
occurrence, is greater than 32%, then the number of shares of Warrant
Stock shall thereupon and without any further action be decreased by
that number which is sufficient to cause the portion of the Calculation
Rate which exceeds 32% to be reduced by one-half.
5. NO IMPAIRMENT; REGULATORY COMPLIANCE COOPERATION; FURTHER
ASSURANCES
The Company shall not by any action, including, without
limitation, amending its charter documents or through any reorganization,
reclassification, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities
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or any other similar voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate to protect the rights of the Holder
against impairment. Without limiting the generality of the foregoing, the
Company will (a) not increase the par value (if any) of any shares of Common
Stock issuable upon the exercise of this Warrant above the amount payable
therefor upon such exercise immediately prior to such increase in par value, (b)
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant, free and clear of all Liens
(other than those created by actions of the Holder), (c) use its best efforts to
obtain all such authorizations, exemptions or consents from any Governmental
Authority as may be necessary to enable the Company to perform its obligations
under this Warrant and (d) execute, acknowledge and deliver such other further
agreements, instruments and documents and do such further acts as may be
necessary to preserve and maintain in full force and effect this Warrant and the
rights of the Holder herein and to carry out more effectively the provisions and
purposes of this Warrant.
In the event that a Holder is deemed to own, control or have
power over a greater quantity of securities of any kind issued by the Company
than is permitted by any requirement of Applicable Law (a "Regulatory Problem"),
upon the written request of the Holder, the Company shall use all reasonable
efforts to assist the Holder in eliminating such Regulatory Problem as quickly
as possible.
6. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION
WITH OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY
From and after the Original Issue Date, the Company shall at
all times reserve and keep available for issuance upon the exercise of the
Warrants such number of its authorized but unissued shares of Common Stock, free
from preemptive rights, as will be sufficient to permit the exercise in full of
all outstanding Warrants. All shares of Common Stock issuable pursuant to the
terms hereof, when issued upon exercise of this Warrant with payment therefor in
accordance with the terms hereof, shall be duly and validly issued and fully
paid and nonassessable, not subject to preemptive rights and shall be free and
clear of all Liens other than those created by actions of the Holder.
Before taking any action that would result in an adjustment in
the number of shares of Common Stock for which this Warrant is exercisable or in
the Current Warrant Price, the Company shall obtain all such authorizations or
exemptions
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thereof, or consents thereto, as may be necessary from any Governmental
Authority.
If any shares of Common Stock required to be reserved for
issuance upon exercise of Warrants require registration or qualification with
any Governmental Authority under any federal or state law (otherwise than as
provided in Section 8) before such shares may be so issued, the Company will in
good faith and as expeditiously as possible and at its expense endeavor to cause
such shares to be duly registered.
7. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS
In the case of all dividends or other distributions by the
Company to the holders of its Common Stock with respect to which any provision
of any Section hereof refers to the taking of a record of such holders, the
Company 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 Company will not at any time,
except upon dissolution, liquidation or winding up of the Company, close its
stock transfer books or warrant transfer books so as to result in preventing or
delaying the exercise or transfer of any Warrant.
8. TRANSFER AND REGISTRATION
The Holder, by acceptance of this Warrant, agrees to be bound
by the provisions of this Section 8.
8.1 RESTRICTIVE LEGENDS. (a) Except as otherwise
provided in this Section 8, each certificate for Warrant Stock
initially issued upon the exercise of this Warrant, and each certificate for
Warrant Stock issued to any subsequent transferee of any such certificate, shall
be stamped or otherwise imprinted with four legends in substantially the
following forms:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR
ANY STATE SECURITIES LAW. NO TRANSFER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE TO A PERSON OTHER THAN AN AFFILIATE OF THE HOLDER THEREOF
SHALL BE VALID OR EFFECTIVE UNLESS (A) SUCH TRANSFER IS MADE PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN
COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS OR (B) THE HOLDER
OF THE SECURITIES PROPOSED TO BE TRANSFERRED SHALL HAVE DELIVERED TO
THE COMPANY EITHER A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION OR AN OPINION OF COUNSEL (WHO MAY BE AN EMPLOYEE OF SUCH
HOLDER) EXPERIENCED IN SECURITIES MATTERS, SUCH OPINION AND SUCH
COUNSEL BEING REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT
THAT SUCH
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PROPOSED TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS OR (C) SUCH
TRANSFER IS PURSUANT TO RULE 144 OR RULE 144A UNDER THE SECURITIES ACT
AND SUCH HOLDER(S) SHALL HAVE DELIVERED TO THE COMPANY A CERTIFICATE IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY SETTING FORTH
THE BASIS FOR APPLYING ANY SUCH RULE TO THE PROPOSED TRANSFER."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ENTITLED TO THE BENEFIT
OF CERTAIN "PUTS" SET FORTH IN THE WARRANT PURSUANT TO THE EXERCISE OF
WHICH SUCH SHARES WERE ISSUED AND ARE ENTITLED TO THE BENEFIT OF AND
ARE SUBJECT TO CERTAIN OBLIGATIONS CONTAINED IN CERTAIN OTHER
PROVISIONS OF SUCH WARRANT. A COPY OF SUCH WARRANT IS AVAILABLE AT THE
EXECUTIVE OFFICES OF THE COMPANY."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO THE TERMS AND CONDITIONS SET FORTH IN A CERTAIN
SHAREHOLDERS AGREEMENT. A COPY OF SUCH SHAREHOLDERS
AGREEMENT IS AVAILABLE AT THE EXECUTIVE OFFICES OF THE
COMPANY."
"THE COMPANY WILL MAIL TO THE HOLDERS OF THE SHARES EVIDENCED BY THIS
CERTIFICATE A COPY OF THE EXPRESS TERMS OF THE SHARES REPRESENTED BY
THE CERTIFICATE AND OF THE OTHER CLASS OR CLASSES AND SERIES OF SHARES,
IF ANY, WHICH THE COMPANY IS AUTHORIZED TO ISSUE, WITHIN FIVE (5) DAYS
AFTER RECEIPT OF WRITTEN REQUEST THEREFOR."
(b) Except as otherwise provided in this Section 8, each
Warrant shall be stamped or otherwise imprinted with a legend in substantially
the following form:
NEITHER THE WARRANT REPRESENTED BY THIS CERTIFICATE NOR ANY OF THE
SECURITIES ISSUABLE UPON EXERCISE THEREOF HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAW. NO TRANSFER OF THE WARRANT REPRESENTED BY THIS
CERTIFICATE OR OF THE SECURITIES ISSUABLE UPON EXERCISE THEREOF TO A
PERSON OTHER THAN AN AFFILIATE OF THE HOLDER THEREOF SHALL BE VALID OR
EFFECTIVE UNLESS (A) SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN COMPLIANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS OR (B) THE HOLDER OF THE
SECURITIES PROPOSED TO BE TRANSFERRED SHALL HAVE DELIVERED TO THE
COMPANY EITHER A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION OR AN OPINION OF COUNSEL (WHO MAY BE AN EMPLOYEE OF SUCH
HOLDER) EXPERIENCED IN SECURITIES
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MATTERS, SUCH OPINION AND SUCH COUNSEL BEING REASONABLY SATISFACTORY TO
THE COMPANY, TO THE EFFECT THAT SUCH PROPOSED TRANSFER IS EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND OF ANY
APPLICABLE STATE SECURITIES LAWS OR (C) SUCH TRANSFER IS PURSUANT TO
RULE 144 OR RULE 144A UNDER THE SECURITIES ACT AND SUCH HOLDER(S) SHALL
HAVE DELIVERED TO THE COMPANY A CERTIFICATE IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE COMPANY SETTING FORTH THE BASIS FOR
APPLYING ANY SUCH RULE TO THE PROPOSED TRANSFER.
8.2 TRANSFERS. Neither this Warrant nor any shares of
Restricted Common Stock issued upon the exercise hereof shall be Transferred
other than pursuant to an effective registration statement under the Securities
Act and any applicable state securities laws or an exemption from the
registration provisions thereof. Each certificate, if any, evidencing such
shares of Restricted Common Stock issued upon any such Transfer, other than in a
public offering pursuant to an effective registration statement, shall bear the
restrictive legend set forth in Section 8.1(a), and each Warrant issued upon
such Transfer shall bear the restrictive legend set forth in Section 8.1(b),
unless in the Opinion of Counsel to the Holder such legend is not required for
the purposes of compliance with the Securities Act and any applicable state
securities laws. Holders of the Warrants or the Restricted Common Stock, as the
case may be, shall not be entitled to Transfer such Warrants or such Restricted
Common Stock except in accordance with this Section 8.2.
8.3 TERMINATION OF SECURITIES LAW RESTRICTIONS.
Notwithstanding the foregoing provisions of Section 8, the restrictions imposed
by Section 8.2 upon the transferability of the Warrants and the Restricted
Common Stock and the legend requirements of Section 8.1 shall terminate as to
any particular Warrant or share of Restricted Common Stock when the Company
shall have received either a no-action letter from the Commission or an Opinion
of Counsel reasonably satisfactory to the Company that such legend is not
required in order to ensure compliance with the Securities Act. Whenever the
restrictions imposed by Sections 8.1 and 8.2 shall terminate as to this Warrant,
as hereinabove provided, the Holder hereof shall be entitled to receive from the
Company, at the expense of the Company, a new Warrant bearing the following
legend in place of the restrictive legend set forth hereon:
"THE RESTRICTIONS ON TRANSFERABILITY OF THE WITHIN
WARRANT CONTAINED IN SECTIONS 8.1 AND 8.2 HEREOF
TERMINATED ON ______________, 19_, AND ARE OF NO FURTHER
FORCE OR EFFECT."
All Warrants issued upon registration of transfer, division or
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combination of, or in substitution for, any Warrant or Warrants entitled to bear
such legend shall have a similar legend endorsed thereon. Wherever the
restrictions imposed by Sections 8.1 and 8.2 shall terminate as to any share of
Restricted Common Stock, as hereinabove provided, the holder thereof shall be
entitled to receive from the Company, at the Company's expense, a new
certificate representing such Common Stock not bearing the restrictive legend
set forth in Section 8.1(a).
8.4 LISTING ON SECURITIES EXCHANGE. If the Company shall list
any shares of Common Stock on any securities exchange or on NASDAQ, it will, at
its expense, list thereon, maintain and, when necessary, increase such listing
of, all shares of Warrant Stock issued upon the exercise of this Warrant.
8.5 NOMINEES FOR BENEFICIAL OWNERS. In the event that any
Warrant Stock is held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election, be treated as the holder of such
Warrant Stock for purposes of any request or other action by any holder or
holders of Warrant Stock pursuant to this Agreement or any determination of any
number or percentage of shares of Warrant Stock held by any holder or holders of
Warrant Stock contemplated by this Agreement. If the beneficial owner of any
Warrant Stock so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Warrant Stock.
9. SUPPLYING INFORMATION
The Company shall cooperate with each holder of a Warrant and
each holder of Warrant Stock in supplying such information as may be reasonably
necessary for such holder to complete and file any information reporting forms
presently or hereafter required by the Commission or any state securities
commissioner as a condition to the availability of an exemption from the
Securities Act or any applicable state securities law for the sale of any
Warrant or shares of Warrant Stock. At all times following the completion of the
Initial Public Offering of the Company, the Company shall use its best efforts
to make public information available so as to afford the holders of the Warrants
and the Warrant Stock the benefits of Rule 144 of the Commission in connection
with resales, as such Rule may be amended from time to time or any similar rule
or regulation hereafter adopted by the Commission.
10. LOSS OR MUTILATION
Upon receipt by the Company from any Holder of evidence
reasonably satisfactory to it of the ownership of and the 1055, theft,
destruction or mutilation of this Warrant and an indemnity reasonably
satisfactory to it (it being understood that the
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written indemnification agreement of BOCPII or any Affiliate thereof shall be a
sufficient indemnity) and, in case of mutilation, upon surrender and
cancellation hereof, the Company will execute and deliver in lieu hereof a new
Warrant of like tenor to such Holder; PROVIDED, HOWEVER, in the case of
mutilation, no indemnity shall be required if this Warrant in identifiable form
is surrendered to the Company for cancellation.
11. OFFICE OF THE COMPANY
As long as any of the Warrants remain outstanding, the Company
shall maintain an office or agency, which may be the principal executive offices
of the Company (the "Designated Office"), where the Warrants may be presented
for exercise, registration of transfer, division or combination as provided in
this Warrant. Such Designated Office shall initially be the office of the
Company at 00000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxx 00000;
thereafter, such office shall be the office of the Company or of an agency
designated by the Company in a notice delivered to the registered holders of all
Warrants.
12. REPURCHASE BY THE COMPANY OF WARRANT AND WARRANT STOCK
12.1 OBLIGATION TO REPURCHASE WARRANT OR WARRANT STOCK. The
Holder of this Warrant and holder of shares of Warrant Stock issued upon
exercise of this Warrant shall have the right to require the Company to
repurchase such Warrant or shares of Warrant Stock in accordance with the terms
of this Section 12 (such rights are sometimes referred to herein as a "Put").
From time to time during the Repurchase Period, the Company shall, upon written
notice from the Holder of this Warrant or a holder of shares of Warrant Stock
issued upon the exercise of this Warrant (the "Repurchase Notice"), and subject
to the provisions of Section 12.2(b) below, repurchase, on the date and in the
manner set forth in Section 12.2 below, from such holder:
(i) all or the portion of this Warrant designated in such
notice for an amount determined by multiplying (A) the number of shares
of Warrant Stock then purchasable upon exercise of this Warrant (or the
portion thereof designated by the Holder to be repurchased in such
notice) by (B) the difference between (I) the higher of the Fair Value
or the Appraised Value per share of Common Stock as of the date of such
notice and (II) the Current Warrant Price per share of Common Stock as
of the date of such notice; and/or
(ii) the number of shares of Warrant Stock held by such holder
and designated in such notice for an amount determined by multiplying
(A) the number of shares so designated by (B) the higher of the Fair
Value or the Appraised Value per share of Common Stock as of the date
of
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such notice;
such amount being herein referred to as the "Repurchase Price". Nothing herein
shall preclude the exercise by the Holder of any portion of this Warrant
exercisable at any time prior to any repurchase hereunder.
12.2 DETERMINATION AND PAYMENT OF REPURCHASE PRICE. The
Repurchase Price for any repurchase of Warrants or of Warrant Stock pursuant to
this Section 12 shall be determined within sixty (60) days of the date of the
Repurchase Notice received by the Company pursuant to Section 12.1 (with a
notice as to any such Repurchase Price being telecopied to any holder giving
such a Repurchase Notice immediately upon determination thereof), and shall be
payable in cash within thirty (30) days following the date of such determination
of the Repurchase Price. On the date of any repurchase of any portion of this
Warrant pursuant to this Section 12, the Holder shall assign to the Company such
Warrant or portion thereof being repurchased, as the case may be, without any
representation or warranty (except as to title), by the surrender of such
Warrant at the Designated Office against payment of the Repurchase Price
therefor. On the date of any repurchase pursuant to this Section 12 of any
shares of Warrant Stock issued upon the exercise hereof, each holder thereof
shall transfer to the Company the shares of Warrant Stock being repurchased,
without representation or warranty (except as to title), by the surrender of a
certificate or certificates representing such shares duly endorsed for transfer
or accompanied by a duly-executed stock power against payment of the Repurchase
Price therefor. Payment of the Repurchase Price shall be made at the option of
the holder of such Warrant or shares of Warrant Stock by (i) wire transfer to an
account in a bank located in the United States designated by such holder for
such purpose or (ii) a certified or official bank check payable to the order of
such holder. If less than all of this Warrant is being repurchased, the Company
shall, pursuant to Section 3, cancel such Warrant and issue in the name of, and
deliver to, the Holder hereof a new Warrant for the portion not being
repurchased, and if less than all the shares of Warrant Stock represented by any
certificate are being repurchased, the Company shall issue a new certificate to
the holder representing the shares not being repurchased.
12.3 DISABLING CONDITIONS. In the event that the repurchase by
the Company of all Warrants and/or shares of Warrant Stock described in any
Repurchase Notice (the holders of such Warrants and Warrant Stock being
hereinafter sometimes referred to as the "Affected Holders") would be unlawful
under the Ohio General Corporation Law or otherwise and no steps can be
reasonably taken by the Company (including, without limitation, a revaluation of
assets, causing the Subsidiaries of the Company to pay dividends to the Company,
a reduction in the stated capital
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of the Company or other similar restructuring actions) that would permit such
repurchase, or would be prohibited under the Senior Loan Agreement, as defined
in the Loan Agreement, (a "Disabling Condition"), the Company shall promptly
determine the maximum number of Warrants (or portions thereof) and/or shares of
Warrant Stock, if any, that the Company can legally repurchase under such
Disabling Condition and shall allocate such maximum number to the Affected
Holders in proportion to the relative numbers of issuable and/or issued shares
of Warrant Stock that the Company otherwise would have been required to purchase
from such Affected Holders pursuant to the exercise of their Put rights. The
Company shall promptly give each Affected Holder a written notice indicating the
number of Warrants (or portions thereof) and/or the number of shares of Warrant
Stock held by such Affected Holder that may be repurchased by the Company in
light of any such Disabling Condition, which notice shall be accompanied by an
opinion of counsel expert in Ohio corporate law confirming the existence and
nature of such Disabling Condition. Within thirty (30) days after receipt of any
such notice, each Affected Holder may elect to require the Company to repurchase
the number of Warrants (or portions thereof) and/or shares of Warrant Stock
specified in such notice, and such holder's Repurchase Notice shall be deemed to
have been withdrawn with respect to any such Warrants (or portions thereof)
and/or shares of Warrant Stock not subject to such election. In any case in
which the Company is released from its obligation to repurchase any Warrants
and/or shares of Warrant Stock under this Section 12.3 because of the existence
of a Disabling Condition and the allocation of the maximum number of issued
and/or issuable shares purchasable, the Company shall promptly notify each
Affected Holder of any failure by the Affected Holders as a group to require the
Company to repurchase the full number of purchasable shares allocated to them or
any subsequent abatement of such Disabling Condition that would permit the
Company to make additional such repurchases, which notice shall specify such
Affected Holder's pro rata portion of the number of issued and/or issuable
shares so purchasable. Within thirty (30) days of receipt of any such notice,
and without limiting any other right of any Affected Holder to cause the Company
to repurchase all or any portion of any Warrant or shares of Warrant Stock
pursuant to its Put rights, such holder may reinstate its prior request for a
repurchase of its Warrants and/or shares of Warrant Stock in whole or in part to
the extent then permitted, which repurchase, however, shall be at the Repurchase
Price that would have applied to a repurchase pursuant to such original request.
13. DILUTION FEE
In the event that the Company at any time after the Original
Issue Date shall pay a dividend or make any other distribution with respect to
its Common Stock (or any other shares of the capital stock of the Company for
which this Warrant
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becomes exercisable pursuant to Section 4 above) in the form of cash or other
property (other than a stock dividend subject to the provisions of Section 4.1
above), then the Holder of this Warrant shall be entitled to receive a dilution
fee (a "Dilution Fee") payable in cash on the date of payment of such dividend
or other distribution equal to the number of shares of Warrant Stock (or such
other shares of stock) issuable upon exercise of this Warrant on such date
multiplied by the amount of cash and the fair market value of any other property
distributed with respect to each share of Common Stock (or such other stock).
The fair market value of any such other property shall mean the fair market
value thereof, as determined by the Board of Directors of the Company in good
faith and supported, upon the request of the Majority Warrant Holders, and at
the expense of the Holders, by an opinion of an investment banking or appraisal
firm of recognized national standing selected by the Company and reasonably
acceptable to such Majority Warrant Holders.
14. MISCELLANEOUS
14.1 NONWAIVER. No course of dealing or any delay or failure
to exercise any right hereunder on the part of the Company or the Holder shall
operate as a waiver of such right or otherwise prejudice the rights, powers or
remedies of such Person.
14.2 NOTICE GENERALLY. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled, delivered or personally served, at the addresses of the parties hereto
(until notice of a change thereof is delivered as provided herein) as set forth
below each party's name on Schedule 14.2 hereto. All such notices and
communications shall, when mailed, telecopied, telegraphed, telexed or cabled,
be effective two Business Days after being deposited in the mails, or when
telecopied, delivered to the telegraph company, confirmed by telex answerback or
delivered to the cable company, respectively.
14.3 INDEMNIFICATION. If the Company fails to make, when due,
any payments provided for in this Warrant, or if a Disabling Condition exists
which restricts the payment of the Repurchase Price on the date on which it
would be required to be paid but for such Disabling Condition, the Company shall
pay to the holder hereof (a) interest at the Default Rate on any amounts due and
owing to such holder or on such unpaid Repurchase Price and (b) such further
amounts as shall be sufficient to cover any costs and expenses including, but
not limited to, reasonable attorneys' fees and expenses incurred by such holder
in collecting any amounts due hereunder. The Company agrees to defend, protect,
indemnify and hold harmless the Holder hereof and its Affiliates and the holders
of any Warrant Stock issued
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upon the exercise hereof and their Affiliates and their respective officers,
directors, employees and agents from and against any and all liabilities,
obligations, losses, damages, penalties, actions, suits, judgments, claims,
costs, expenses and disbursements of any kind or nature whatsoever (including,
without limitation, the fees and disbursements of counsel for such indemnified
party) in connection with any investigative, administrative or judicial
proceedings (whether or not such indemnified party is a party thereto) imposed
on, incurred by, or asserted against such indemnified party (whether direct,
indirect or consequential) incurred in connection with or arising from a Company
Default.
14.4 LIMITATION OF LIABILITY. No provision hereof, in the
absence of affirmative action by the Holder to purchase shares of Common Stock,
and no enumeration herein of the rights or privileges of the Holder hereof,
shall give rise to any liability of such Holder for the purchase price of any
Common Stock or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
14.5 REMEDIES. Each holder of Warrants and/or Warrant Stock,
in addition to being entitled to exercise its rights granted by law, including
recovery of damages, shall be entitled to specific performance of its rights
provided under this Warrant. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Warrant and hereby agrees, in an action for specific
performance, to waive the defense that a remedy at law would be adequate.
14.6 SUCCESSORS AND ASSIGNS. This Warrant and the rights
evidenced hereby shall inure to the benefit of and be binding upon the Company
and the Holder and their respective successors and assigns. The provisions of
this Warrant are intended to be for the benefit of all Holders from time to time
of this Warrant and to the extent applicable, all holders of shares of Warrant
Stock issued upon the exercise hereof (including transferees), and shall be
enforceable by any such holder. The Company shall not have the right to assign
any of its rights and obligations under this Warrant without the prior written
consent of the Warrant Holders.
14.7 AMENDMENT. This Warrant and all other Warrants may be
modified or amended or the provisions hereof waived with the written consent of
the Company and the Majority Warrant Holders, provided that no such Warrant may
be modified or amended if the effect thereof is to (i) reduce the number of
shares of Common Stock for which such Warrant is exercisable, (ii) increase the
price at which such shares may be purchased upon exercise of such Warrant
(before giving effect to any adjustment as provided therein) or (iii) have a
material adverse affect on the rights
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the Holders without the written consent of the holder thereof.
14.8 SEVERABILITY. In case any provision in or obligation
under this Warrant shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
14.9 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.
14.10 GOVERNING LAW. This Warrant shall be governed by, and
construed in accordance with, the laws of the State of Ohio.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed and its corporate seal to be impressed hereon and attested by its
Secretary or an Assistant Secretary.
Dated:
WASTE-QUIP, INC
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CFO
[SEAL]
WITNESS: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxxx
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ANNEX A
-------
SUBSCRIPTION FORM
-----------------
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably exercises
this Warrant for the purchase of ______ Shares of Common Stock of Waste-Quip,
Inc. and herewith makes payment therefor, all at the price and on the terms and
conditions specified in this Warrant and requests that certificates for the
shares of Common Stock hereby purchased (and any securities or other property
issuable upon such exercise) be issued in the name of and delivered to
___________________________ whose address is ________________ __________________
and, if such shares of Common Stock shall not include all of the shares of
Common Stock issuable as provided in this Warrant, that a new Warrant of like
tenor and date for the balance of the shares of Common Stock issuable hereunder
be delivered to the undersigned.
-----------------------------------
(Name of Registered Owner)
-----------------------------------
(Signature of Registered Owner)
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the
name as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
36
ANNEX B
-------
ASSIGNMENT FORM
---------------
FOR VALUE RECEIVED the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the Assignee named below all of
the rights of the undersigned under this Warrant, with respect to the number of
shares of Common Stock set forth below:
No. of Shares of
Name and Address of Assignee Common Stock
---------------------------- ------------
and does hereby irrevocably constitute and appoint _______________
_______________________ attorney-in-fact to register such transfer onto the
books of Waste-Quip, Inc. maintained for the purpose, with full power of
substitution in the premises.
Dated:___________________ Print Name:________________________
Signature:_________________________
Witness:___________________________
NOTICE: The signature on this assignment must correspond with the name
as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
