EXHIBIT 2(c)
THIS WARRANT IS NOT TRANSFERABLE AND THE EXERCISE
HEREOF IS LIMITED AS SET FORTH IN SECTIONS 1 AND 2 OF THIS
WARRANT. THE SHARES OF COMMON STOCK ISSUED UPON
EXERCISE OF THIS WARRANT ARE SUBJECT TO THE RESTRICTIONS
ON TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT.
Warrant No. ____ Number of Shares:________
(subject to adjustment)
Date of Issuance: December __, 1995
THERMO REMEDIATION, INC.
Non-Negotiable Common Stock Purchase Warrant
(Void after December __, 2003)
Thermo Remediation Inc., a Delaware Corporation (the
"Company"), for value received, hereby certifies that
__________________________ (the "Registered Holder"), is
entitled, subject to the terms and conditions set forth below, to
purchase from the Company, at any time or from time to time on or
after three years from the date of issuance set forth above (the
"Date of Issuance") and on or before eight years from the Date of
Issuance, at not later than 5:00 p.m. (Boston, Massachusetts
time), ________ shares of Common Stock, $0.01 par value per
share, of the Company, at a purchase price of $14.85 per share.
This warrant is one of a series of warrants comprising a part of
units (the "Units") issued by the Company in consideration for
the acquisition (by merger) of Remediation Technologies, Inc. by
the Company. Each individual Unit is comprised of three shares
of Common Stock and a warrant to purchase one share of Common
Stock on the terms described below. This warrant comprises a
part of a number of Units equal to the number of shares of Common
Stock set forth above. This warrant is hereinafter referred to
as the "Warrant," and the shares purchasable upon exercise of
this Warrant and the purchase price per share, each as adjusted
from time to time pursuant to the provisions of this Warrant, are
hereinafter referred to as the "Warrant Shares" and the "Purchase
Price," respectively.
PAGE
1. Exercise.
(a) Subject to the termination event and restrictions
described herein, this Warrant may be exercised by the Registered
Holder, in whole or in part, by surrendering this Warrant, with
the purchase form appended hereto as Exhibit A duly executed by
such Registered Holder or by such Registered Holder's successor
by will or the laws of descent and distribution, at the principal
office of the Company, or at such other office or agency as the
Company may designate, accompanied by payment in full of the
Purchase Price payable in respect of the number of Warrant Shares
purchased upon such exercise, either in lawful money of the
United States or by delivery to the Company of shares of Common
Stock already owned by the Registered Holder having a fair market
value equal in amount to such purchase price.
(b) The Registered Holder may, at its option, elect to
pay some or all of the Purchase Price payable upon an exercise of
this Warrant by cancelling a portion of this Warrant exercisable
for such number of Warrant Shares as is determined by dividing
(i) the total Purchase Price payable in respect of the number of
Warrant Shares being purchased upon such exercise by (ii) the
excess of the Fair Market Value per share of Common Stock as of
the effective date of exercise, as determined pursuant to
subsection 1(c) below (the "Exercise Date") over the Purchase
Price per share. If the Registered Holder wishes to exercise
this Warrant pursuant to this method of payment with respect to
the maximum number of Warrant Shares purchasable pursuant to this
method, then the number of Warrant Shares so purchasable shall be
equal to the total number of Warrant Shares, minus the product
obtained by multiplying (x) the total number of Warrant Shares by
(y) a fraction, the numerator of which shall be the Purchase
Price per share and the denominator of which shall be the Fair
Market Value per share of Common Stock as of the Exercise Date.
The Fair Market Value per share of Common Stock shall be
determined as follows:
(i) If the Common Stock is listed on a national
securities exchange, the NASDAQ National Market System, the
NASDAQ system or another nationally recognized exchange or
trading system as of the Exercise Date, the Fair Market Value per
share of Common Stock shall be deemed to be the last reported
sale price per share of Common Stock thereon on the Exercise
Date; or, if no such price is reported on such date, such price
on the next preceding business day (provided that if no such
price is reported on the next preceding business day, the Fair
Market Value per share of Common Stock shall be determined
pursuant to clause (ii)).
(ii) If the Common Stock is not listed on a
national securities exchange, the NASDAQ National Market System,
the NASDAQ system or another nationally recognized exchange or
trading system as of the Exercise Date, the Fair Market Value per
share of Common Stock shall be deemed to be the amount most
PAGE
recently determined by the Board of Directors to represent the
fair market value per share of the Common Stock (including
without limitation a determination for purposes of granting
Common Stock options or issuing Common Stock under an employee
benefit plan of the Company); and, upon request of the Registered
Holder, the Board of Directors (or a representative thereof)
shall promptly notify the Registered Holder of the Fair Market
Value per share of Common Stock. Notwithstanding the foregoing,
if the Board of Directors has not made such a determination
within the three-month period prior to the Exercise Date, then
(A) the Fair Market Value per share of Common Stock shall be the
amount next determined by the Board of Directors to represent the
fair market value per share of the Common Stock (including
without limitation a determination for purposes of granting
Common Stock options or issuing Common Stock under an employee
benefit plan of the Company), (B) the Board of Directors shall
make such a determination within 15 days of a request by the
Registered Holder that it do so, and (C) the exercise of this
Warrant pursuant to this subsection 1(b) shall be delayed until
such determination is made.
(c) Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on
the day on which this Warrant shall have been surrendered to the
Company as provided in subsection 1(a) above. At such time, the
person or persons in whose name or names any certificates for
Warrant Shares shall be issuable upon such exercise as provided
in subsection 1(d) below shall be deemed to have become the
holder or holders of record of the Warrant Shares represented by
such certificates.
(d) As soon as practicable after the exercise of this
Warrant in full or in part, and in any event within 10 days
thereafter, the Company, at its expense, will cause to be issued
in the name of, and delivered to, the Registered Holder:
(i) a certificate or certificates for the number
of full Warrant Shares to which such Registered Holder shall be
entitled upon such exercise plus, in lieu of any fractional share
to which such Registered Holder would otherwise be entitled, cash
in an amount determined pursuant to Section 3 hereof; and
(ii) in case such exercise is in part only, a new
warrant or warrants (dated the date hereof) of like tenor,
calling in the aggregate on the face or faces thereof for the
number of Warrant Shares equal (without giving effect to any
adjustment therein) to the number of such shares called for on
the face of this Warrant minus the sum of (a) the number of such
shares purchased by the Registered Holder upon such exercise,
plus (b) the number of Warrant Shares (if any) covered by the
portion of this Warrant cancelled in payment of the Purchase
Price payable upon such exercise pursuant to subsection 1(b)
above, plus (c) the number of Warrant Shares as to which this
PAGE
Warrant has previously been terminated pursuant to Section 2
below.
2. Termination Events. Notwithstanding the rights
described in Section 1, upon any disposition, transfer or
hypothecation by the Registered Holder of any shares of Common
Stock comprising a portion of any Unit of which this Warrant also
comprises a part, prior to three years from the Date of Issuance,
this Warrant shall automatically terminate and be null and void
with respect to that number of shares of Common Stock determined
by dividing (x) the number of such shares of Common Stock so
disposed of, transferred or hypothecated by (y) 3 (the "Factor"),
with any fraction determined thereby rounded up to the next
nearest whole number.
3. Adjustments.
(a) If outstanding shares of the Company's Common
Stock shall be subdivided into a greater number of shares or a
dividend in Common Stock shall be paid in respect of Common
Stock, the Purchase Price and the Factor in effect immediately
prior to such subdivision or at the record date of such dividend
shall simultaneously with the effectiveness of such subdivision
or immediately after the record date of such dividend be
proportionately reduced and increased, respectively. If
outstanding shares of Common Stock shall be combined into a
smaller number of shares, the Purchase Price and the Factor in
effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be
proportionately increased and reduced, respectively. When any
adjustment is required to be made in the Purchase Price, the
number of Warrant Shares purchasable upon the exercise of this
Warrant shall be changed to the number determined by dividing
(i) an amount equal to the number of shares issuable upon the
exercise of this Warrant immediately prior to such adjustment,
multiplied by the Purchase Price in effect immediately prior to
such adjustment, by (ii) the Purchase Price in effect immediately
after such adjustment.
(b) If there shall occur any capital reorganization or
reclassification of the Company's Common Stock (other than a
change in par value or a subdivision or combination as provided
for in subsection 3(a) above), or any consolidation or merger of
the Company with or into another corporation, or a transfer of
all or substantially all of the assets of the Company, then, as
part of any such reorganization, reclassification, consolidation,
merger or sale, as the case may be, the Board of Directors of the
Company shall either provide (i) that lawful provision shall be
made so that the Registered Holder of this Warrant shall have the
right thereafter to receive upon the exercise hereof the kind and
amount of shares of stock or other securities or property which
such Registered Holder would have been entitled to receive if,
immediately prior to any such reorganization, reclassification,
consolidation, merger or sale, as the case may be, such
PAGE
Registered Holder had held the number of shares of Common Stock
which were then purchasable upon the exercise of this Warrant, or
(ii) that this Warrant shall become exercisable in full (to the
extent not previously terminated pursuant to Section 2 above)
immediately prior to and shall terminate in its entirety to the
extent not exercised upon, such reorganization, reclassification,
consolidation, merger or sale (provided that the Registered
Holder shall be given ten (10) days prior notice of any
determination by the Board of Directors under this clause (ii)).
In any such case described in clause (i) above, appropriate
adjustment (as reasonably determined in good faith by the Board
of Directors of the Company) shall be made in the application of
the provisions set forth herein with respect to the rights and
interests thereafter of the Registered Holder of this Warrant,
such that the provisions set forth in this Section 3 (including
provisions with respect to adjustment of the Purchase Price and
the Factor) shall thereafter be applicable, as nearly as is
reasonably practicable, in relation to any shares of stock or
other securities or property thereafter deliverable upon the
exercise of this Warrant.
(c) When any adjustment is required to be made in the
Purchase Price and the Factor, the Company shall promptly mail to
the Registered Holder a certificate setting forth the Purchase
Price and the Factor after such adjustment and setting forth a
brief statement of the facts requiring such adjustment. Such
certificate shall also set forth the kind and amount of stock or
other securities or property into which this Warrant shall be
exercisable following the occurrence of any of the events
specified in subsection 3(a) or (b) above.
4. Fractional Shares. The Company shall not be required
upon the exercise of this Warrant to issue any fractional shares,
but shall make an adjustment therefor in cash on the basis of the
Fair Market Value per share of Common Stock, as determined
pursuant to subsection 1(b) above.
5. Prohibitions on Transfer; Additional Limitations on
Exercise.
(a) This Warrant may not be assigned or transferred,
either voluntarily or by operation of law, except by will or the
laws of descent and distribution, and, may only be exercised by
the Registered Holder during his lifetime and thereafter may only
be exercised by the person to whom it is transferred by will or
the laws of descent and distribution.
(b) This Warrant shall be subject to the requirement
that if, at any time, counsel to the Company shall determine that
the listing, registration or qualification of the Warrant Shares
issuable upon exercise of this Warrant upon any securities
exchange or under any state or federal law, or the consent or
approval of any governmental or regulatory body, or that the
disclosure of non-public information or the satisfaction of any
PAGE
other condition is necessary as a condition of, or in connection
with, the issuance or purchase of Warrant Shares hereunder, this
Warrant may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, or
satisfaction of such condition shall have been effected or
obtained on conditions acceptable to the Board of Directors.
Nothing herein shall be deemed to require the Company to apply
for or to obtain such listing, registration or qualification, or
to satisfy such condition.
(c) Each certificate representing Warrant Shares,
unless registered pursuant to an effective registration statement
filed with the Securities and Exchange Commission, shall bear a
legend substantially in the following form:
"The securities represented by this certificate have not
been registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such securities are registered
under such Act or an opinion of counsel satisfactory to the
Company is obtained to the effect that such registration is not
required."
The foregoing legend shall be removed from the certificates
representing any Warrant Shares, at the request of the holder
thereof, at such time as they become eligible for resale pursuant
to Rule 144(k) under the Act.
6. No Impairment. The Company will not, by amendment of
its charter or through reorganization, consolidation, merger,
dissolution, sale of assets or any other 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 action as may be necessary or appropriate in order to
protect the rights of the holder of this Warrant against
impairment.
7. Notices of Record Date, etc. In case:
(a) the Company shall take a record of the holders of
its Common Stock (or other stock or securities at the time
deliverable upon the exercise of this Warrant) for the purpose of
entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or
purchase any shares of stock of any class or any other
securities, or to receive any other right; or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another
corporation (other than a consolidation or merger in which the
Company is the surviving entity), or any transfer of all or
substantially all of the assets of the Company; or
PAGE
(c) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
then, and in each such case, the Company will mail or cause to be
mailed to the Registered Holder of this Warrant a notice
specifying, as the case may be, (i) the date on which a record is
to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take
place, and the time, if any is to be fixed, as of which the
holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common
Stock (or such other stock or securities) for securities or other
property deliverable upon such reorganization, reclassification,
consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be mailed at least ten (10) days
prior to the record date or effective date for the event
specified in such notice and, in the case of a notice pursuant to
subsection 7(b) above, shall state whether this Warrant is to be
assumed by the successor entity or is to terminate prior thereto
pursuant to subsection 3(b) above.
8. Reservation of Stock. The Company will at all times
reserve and keep available, solely for issuance and delivery upon
the exercise of this Warrant, such number of Warrant Shares and
other stock, securities and property, as from time to time shall
be issuable upon the exercise of this Warrant.
9. Replacement of Warrants. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of
loss, theft or destruction) upon delivery of an indemnity
agreement (with surety if reasonably required) in an amount
reasonably satisfactory to the Company, or (in the case of
mutilation) upon surrender and cancellation of this Warrant, the
Company will issue to and in the name of the Registered Holder,
in lieu thereof, a new Warrant of like tenor.
10. Warrant Register. The Company will maintain a register
containing the names and addresses of the Registered Holders of
this Warrant. Any Registered Holder may change its or his
address as shown on the warrant register by written notice to the
Company requesting such change.
11. Mailing of Notices, etc. All notices and other
communications from the Company to the Registered Holder of this
Warrant shall be in writing and shall be deemed effective (i)
upon delivery by hand, (ii) two business days after deposit with
an express courier service for delivery no later than two
business days after such deposit, addressed to the Registered
PAGE
Holder at the address set forth on the warrant register
maintained by the Company or (iii) upon confirmation of
transmittal by telecopy to the Registered Holder, with a copy
sent in accordance with the preceding clause (ii), to the
telecopy number set forth on the warrant register maintained by
the Company. All notices and other communications from the
Registered Holder of this Warrant to the Company shall be in
writing and shall be deemed effective (i) upon delivery by hand,
(ii) two business days after deposit with an express courier
service for delivery no later than two business days after such
deposit, addressed to the Company at its principal office set
forth below or (iii) upon confirmation of transmittal by
telecopy, with a hard copy sent in accordance with the preceding
clause (ii), to the telecopy number of the Company set forth
below. A copy of any notice or communication delivered to the
Company shall be delivered concurrently to Hale and Dorr, 60
State Street, Boston, Massachusetts 02109, Attention: David E.
Redlick, Esq. (Telecopy No. (617) 526-5000). If the Company
should at any time change the location of its principal office to
a place other than as set forth below or change its telecopy
number to a number other than as set forth below, it shall give
prompt written notice to the Registered Holder of this Warrant in
the manner prescribed herein, and thereafter all references in
this Warrant to the location of its principal office or telecopy
number at the particular time shall be as so specified in such
notice.
12. Change or Waiver. Changes in or additions to this
Warrant may be made or compliance with any term, covenant,
agreement, condition or provision set forth herein may be omitted
or waived (either generally or in a particular instance and
either retroactively or prospectively), upon written consent of
the Company and the Registered Holder or Holders of Warrants then
outstanding representing a majority of the shares of Common Stock
issuable upon exercise of the Warrants; provided, however, that
no change, addition, omission or waiver which causes any change
in or in any way affects or impairs the obligation of the Company
in respect of the number of shares purchasable or the price per
share payable upon exercise of this Warrant, or causes any change
in this Section 12, shall be made without the written consent of
the holder of this Warrant.
13. Headings. The headings in this Warrant are for
purposes of reference only and shall not limit or otherwise
affect the meaning of any provision of this Warrant.
14. Governing Law. This Warrant will be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts.
PAGE
Thermo Remediation Inc.
By:________________________
[Corporate Seal] Title:_________________
ATTEST:
-------------------------
PAGE
EXHIBIT A
PURCHASE FORM
To:_________________ Dated: December __, 199_
The undersigned, pursuant to the provisions set forth in the
attached Warrant (No. ___), hereby irrevocably elects to purchase
_____ shares of the Common Stock covered by such Warrant. The
undersigned herewith makes payment of $____________, representing
the full purchase price for such shares at the price per share
provided for in such Warrant. Such payment takes the form of
(check applicable box or boxes):
$_________ in lawful money of the United States, and/or
$_________ in shares of Common Stock, and/or
the cancellation of such portion of the attached
Warrant as is exercisable for a total of ______ Warrant Shares
(using a Fair Market Value of $_______ per share for purposes of
this calculation).
The undersigned hereby certifies that _____ shares of Common
Stock issued as part of the Units comprised, in part, by this
Warrant were transferred prior to December __, 1998.
Signature:__________________________
Address:____________________________
----------------------------