EXHIBIT 99.3
NEITHER THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY OTHER
SECURITIES STATUTE. NO SALE, TRANSFER OR OTHER DISPOSITION HEREOF OR THEREOF,
OR OF ANY INTEREST HEREIN OR THEREIN, MAY BE MADE OR SHALL BE RECOGNIZED UNLESS
IN THE OPINION OF COUNSEL TO OR REASONABLY SATISFACTORY TO THE COMPANY SUCH
TRANSACTION WOULD NOT VIOLATE OR REQUIRE REGISTRATION UNDER SUCH ACT OR OTHER
STATUTE
WARRANT TO PURCHASE COMMON STOCK OF
AMERICAN ECOLOGY CORPORATION
THIS WARRANT CERTIFIES that, for value received, _____________________
(the "Holder") is entitled to purchase from American Ecology Corporation, a
Delaware corporation (the "Company"), at a price of $4.75 per share, subject to
adjustment as provided in Section 4 hereof ("Purchase Price"), at any time after
the date hereof up to and including September _____, 1999, ___________________
fully paid and non-assessable shares of the Company's Common Stock, par value
$.01 per share ("Common Stock"), subject, however, to the provisions and upon
the terms and conditions hereinafter set forth.
1. Exercise of Warrant. The rights represented by this Warrant may
be exercised by the holder hereof, at any time or from time to time, on any day
that is not a Saturday, Sunday or public holiday under the laws of the State of
Texas (such day being hereinafter referred to as a "Business Day"), for all or
part of the number of shares of Common Stock purchasable upon its exchange, by
(i) delivery of a Subscription Notice (in the form attached to this Warrant) of
such holder's election to exercise this Warrant, specifying the number of shares
of Common Stock to be purchased, (ii) payment of the Purchase Price for such
shares by certified check or bank draft payable to the order of the Company and
(iii) surrender of this Warrant (properly endorsed if required) at the Company's
principal office in Houston, Texas, or such other office or agency of the
Company as the Company may designate by notice in writing to the holder hereof.
In the event of any exercise of the rights represented by this
Warrant, certificates for the shares of Common Stock so purchased shall be
delivered to the holder hereof as soon as reasonably practicable, but in any
event within twenty-one (21) days, after the rights represented by this Warrant
shall have been so exercised, and unless this Warrant has expired, a new Warrant
representing the number of shares of Common Stock, if any, with respect to which
this Warrant shall not then have been exercised shall also be issued to the
holder hereof within such time. Each person in whose name any such certificate
for shares of Common Stock is issued shall for all purposes be deemed to have
become the holder of record of the Common
Stock represented hereby on the date on which this Warrant was surrendered and
payment of the Purchase Price was made, irrespective of the date of issue or
delivery of such certificate.
2. Transfer. The Company will maintain books for the registration
and transfer of the Warrants, and any such transfer will be registrable thereon
upon surrender of the transferred Warrant to the Company's office at the address
set forth in Section 11, together with a duly executed assignment thereof and
funds sufficient to pay any required stock transfer taxes. Upon such surrender
and payment, the Company shall, subject to Section 9, execute and deliver a new
Warrant or Warrants in the name of the assignees and in the number of shares of
Common Stock specified in the Assignment set forth on the reverse of the
Subscription Notice, and this Warrant shall promptly be canceled.
3. Certain Covenants of the Company. The Company covenants and
agrees that all shares of Common Stock that may be issued upon the exercise of
the rights represented by this Warrant will, upon issuance, be fully paid and
non-assessable and free from all taxes, liens, charges and security interests
with respect to the issue thereof. The Company further covenants and agrees
that during the period within which the rights represented by the Warrant may be
exercised, the Company will at all times have authorized, and reserved free of
preemptive or other rights for the exclusive purpose of issue upon exercise of
the rights evidenced by this Warrant, a sufficient number of shares of its
Common Stock to provide for the exercise of the rights represented by this
Warrant. The Company shall take all such actions as may be necessary to assure
that all such shares of Common Stock may be issued upon the exercise of the
rights represented by this Warrant without violation of any applicable law or
governmental regulation or any requirements of any domestic securities exchange
upon which shares of Common Stock may be listed (except for official notice of
issuance which shall be immediately delivered by the Company upon each such
issuance.
4. Adjustment of Purchase Price and Number of Shares. The number of
shares of Common Stock with respect to which this Warrant is exercisable (the
"Exercise Rate") shall be subject to adjustment from time to time as follows:
a. In case the Company shall (x) pay a dividend or make a
distribution of Common Stock on outstanding Common Stock, (y) subdivide
outstanding Common Stock into a larger number of shares of Common Stock by
reclassification or otherwise, or (z) combine outstanding Common Stock into
a smaller number of shares of Common Stock by reclassification or
otherwise, the Exercise Rate in effect immediately prior thereto shall be
adjusted proportionately so that the holder of this Warrant thereafter
exercised shall be entitled to receive the number of shares of the Common
Stock that such holder would have owned after the happening of any of the
events described above had such Warrant been exercised immediately prior to
the happening of such event. An adjustment made pursuant to this
subparagraph (a) shall become effective retroactively to immediately after
the record date in the case of a share dividend or distribution and shall
become effective immediately after the effective date in the case of a
subdivision or combination.
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b. In case of any capital reorganization or reclassification of the
shares of Common Stock (except as provided in subparagraph (a) above), or
in case of any consolidation or merger to which the Company is a party
(other than a merger in which the Company is the surviving corporation and
which does not result in any capital reorganization or reclassification of
Common Stock), or in case of any sale or conveyance to another corporation
of all or substantially all of the property and assets of the Company, and
if, in connection with any such consolidation, merger, sale or conveyance,
shares or other securities or property shall be issuable or deliverable in
exchange for shares of Common Stock, provision shall be made as part of the
terms of such capital reorganization or reclassification, consolidation,
merger, sale or conveyance that the holder of this Warrant thereafter
exercised shall have the right upon such exercise to receive the same kind
and amount of stock and other securities and property as would have been
receivable upon such capital reorganization or reclassification,
consolidation, merger, sale or conveyance by a holder of the number of
shares of Common Stock with respect to which such Warrant might have been
exercised immediately prior thereto. In any such case, appropriate
provision (as determined to be equitable in the business judgment of the
Board of Directors) shall be made for the application of Section 4 with
respect to the rights and interests thereafter of the holder of this
Warrant to the end that such Section (including adjustments of the Exercise
Rate) shall be reflected thereafter, as nearly as reasonably practicable,
in all subsequent exercises of this Warrant. The Company shall not effect
any such consolidation, merger or sale, unless prior to the consummation
thereof, the successor corporation (if other than the Company) resulting
from consolidation or merger or the corporation purchasing such assets
assumes by written instrument (in a manner determined to be equitable in
the business judgment of the Board of Directors to the holder of this
Warrant), the obligation to deliver to such holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to acquire.
c. In case the Company shall issue pro rata to the holders of shares
of its Common Stock rights or warrants entitling them, during a period not
exceeding 30 days after the record date mentioned below, to subscribe for
or purchase only shares of its Common Stock at a price per share less than
the average of the Current Market Price (as defined in Section 6) of the
Common Stock for the 30 consecutive trading days commencing 45 days before
such record date (the "Average Market Price"), the number of shares of its
Common Stock with respect to which this Warrant is exercisable thereafter
shall be determined by multiplying the number of shares of Common Stock
with respect to which this Warrant was exercisable theretofore by a
fraction, of which the numerator shall be the number of shares of Common
Stock outstanding immediately prior to such record date plus the number of
additional shares of Common Stock offered for subscription or purchase, and
of which the denominator shall be the number of shares of Common Stock
outstanding immediately prior to such record date, plus the number of
shares of Common Stock which the aggregate offering price of the total
number of shares being offered would purchase at such Average Market Price.
Such adjustment shall be made whenever such rights or warrants are issued
and shall become retroactively
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effective immediately after the record date for the determination of the
stockholders entitled to receive such rights or warrants. To the extent
that shares of Common Stock are not delivered after the expiration of such
rights or warrants, the Exercise Rate shall be readjusted to the Exercise
Rate that would then be in effect had the adjustments made upon the
issuance of such rights or warrants been made upon the basis of delivery of
only the number of shares of Common Stock actually delivered.
d. In case the Company shall issue pro rata to the holders of shares
of its Common Stock rights or warrants to subscribe for or purchase only
(x) shares of its Common Stock except as described in subparagraph (iii)
above, or (y) units consisting of shares of Common Stock and warrants to
purchase shares of Common Stock, the number of shares of its Common Stock
with respect to which this Warrant is exercisable thereafter shall be
determined by multiplying the number of shares of Common Stock with respect
to which this Warrant was exercisable theretofore by a fraction, of which
the numerator shall be the Average Market Price for a share of Common Stock
determined as of the record date mentioned below, and of which the
denominator shall be such Average Market Price less the fair market value
(as determined in the business judgment of the Board of Directors) as of
such record date of the rights or warrants distributed pro rata to one of
the outstanding shares of Common Stock. Such adjustment shall be made
whenever such distribution is made and shall become retroactively effective
immediately after the record date for the determination of stockholders
entitled to receive such rights or warrants.
The foregoing provisions for adjustment of the Exercise Rate shall
apply in each successive instance in which an adjustment is required
thereby. No adjustment in the Exercise Rate resulting from the application
of the foregoing provisions is to be given effect unless, by making such
adjustment, the Exercise Rate in effect immediately prior to such
adjustment would be changed thereby by 1% or more, but any adjustment that
would change the Exercise Rate by less than 1% is to be carried forward and
given effect in making future adjustments; provided, however, that each
adjustment of the Exercise Rate shall in all events be made not later than
three years from the date such adjustment would have been required to be
made except for the provisions of this sentence. All calculations under
this Section 4 shall be made to the nearest one-hundredth (1/100th) of a
share. Shares of Common Stock owned by or held for the account of the
Company shall not be deemed to be outstanding for the purposes of any
computation made under this Section 4.
Whenever the number of shares of Common Stock deliverable upon the
exercise of this Warrant shall be adjusted pursuant to the provisions
hereof, the Company shall forthwith file at its principal office and with
any transfer agent for the Common Stock a statement, signed by the
President or one of the Vice-Presidents of the Company and by its Treasurer
or one of its Assistant Treasurers, stating the adjusted number of shares
of Common Stock deliverable with respect to this Warrant and setting forth
in reasonable detail, the method of calculation and the facts requiring
such adjustment and upon which
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such calculation is based, and shall mail a notice of such adjustment to
the holder of record of this Warrant. Each adjustment shall remain in
effect until a subsequent adjustment hereunder is required.
In the event:
(x) of the occurrence of any of the events referred to in
subparagraphs (a), (b), (c) and (d) above; or
(y) of any liquidation, dissolution or winding up of the
Company (a "Liquidation");
then the Company shall cause to be mailed to the holder of record of this
Warrant at least 20 days prior to the applicable date hereinafter
specified, a notice describing the event and stating the effect, if any,
that such event will have upon the Exercise Rate, and (A) the date on which
a record is to be taken for the purpose of a distribution referred to in
subparagraphs (a), (c) or (d) above, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled
to such distribution are to be determined, or (B) the date on which any
subdivision, combination or other capital reorganization or
reclassification or any consolidation, merger, sale or conveyance referred
to in subparagraphs (a) or (b) above or such Liquidation is expected to
become effective.
The Company will at all times reserve and keep available for issuance
upon exercise of this Warrant the number of shares of Common Stock that is
equal to the Exercise Rate; provided, however, that nothing contained
herein shall be construed to preclude the Company from satisfying its
obligations in respect of the exercise of this Warrant by delivery of
shares of Common Stock that are held in the treasury of the Company. The
Company covenants that all shares of Common Stock that shall be issued upon
exercise of this Warrant will, upon issue, be fully paid and nonassessable
and not subject to any preemptive rights.
The shares of Common Stock issuable upon exercise of this Warrant when
the same shall be issued in accordance with the terms hereof are hereby
declared to be and shall be fully paid nonassessable shares of Common Stock
and not liable to any calls or assessments thereon, and the holders thereof
shall not be liable for any further payments in respect thereof.
"Common Stock" when used in Section 4 with reference to the Common
Stock with respect to which this Warrant is exercisable, shall mean only
Common Stock as authorized by the Restated Certificate of Incorporation of
the Company, as amended to the date hereof, and any shares into which such
Common Stock may thereafter have been changed, and, when otherwise used in
Section 4, shall also include shares of the Company of any other class or
series, whether now or hereafter authorized, that ranks
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or is entitled to participation, as to payment of assets upon Liquidation
and payment of dividends, substantially on a parity with such Common Stock
or other class of shares into which such Common Stock may have been
changed.
The Company will not, by amendment of its Certificate of Incorporation
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to
be observed or performed hereunder by the Company, but will at all times in
good faith assist in the carrying out of all the provisions of this Section
4 and in the taking of all such action as may be necessary or appropriate
in order to protect the conversion privilege of the holder of this Warrant
against dilution or other impairment. Without limiting the generality of
the foregoing, the Company (1) will not increase the par value of any
shares of stock receivable upon exercise of this Warrant above the Purchase
Price then in effect, and (2) will take all such actions as may be
necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable shares of stock upon the exercise in
full of this Warrant from time to time outstanding.
5. Fractional Interests. The Company shall not be required to issue
fractional shares on the exercise of a Warrant. If any fraction of a share
would be issuable on the exercise of a Warrant (or specified portion thereof),
the Company shall pay an amount in cash equal to the current market price per
share of Common Stock (as defined in Section 6) multiplied by such fraction.
6. Definition of Current Market Value. The "Current Market Price"
on any given day shall be: (i) if the Common Stock is listed or admitted to
unlisted trading privileges on any exchange registered with the Securities and
Exchange Commission as a "national securities exchange" under the Securities
Exchange Act of 1934 (a "National Securities Exchange"), the last sales price of
the shares of Common Stock on the National Securities Exchange in or nearest the
City of New York on which the shares of Common Stock shall be listed or admitted
to unlisted trading privileges (or the quoted closing bid if there be no sales
on such National Securities Exchange) on the most recently completed trading day
prior to such day; or (ii) if the Common Stock is not so listed or admitted, the
closing sales price of a share of Common Stock as quoted in The Nasdaq Stock
Market on the most recently completed trading day prior to the day in question;
or (iii) if the Common Stock is not so quoted, the mean between the high and low
bid prices of the shares of Common Stock in the over-the-counter market on the
most recently completed trading day prior to the day in question as reported by
National Quotation Bureau Incorporated or similar organization.
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 Section 4 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,
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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. Restrictions on Transferability. This Warrant was originally
issued in a transaction exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and neither this
Warrant nor any shares of Common Stock issuable upon the exercise hereof were
then registered under the Securities Act. Unless this Warrant or such shares
were subsequently registered under the Securities Act and sold by the holder
thereof in accordance with such registration, this Warrant or such shares, as
the case may be, may not be sold by the holder hereof or of such shares unless
this Warrant or such shares is or are subsequently registered under the
Securities Act or an exemption from such registration is available. The shares
of Common Stock issuable hereunder will be an appropriate restrictive legend as
is required by the Securities Act or any state blue sky laws. The holder of
this Warrant, by acceptance of this Warrant, agrees to be bound by the
provisions of this Section and represents to the Company that it is acquiring
the Warrant and the Common Stock issuable hereunder solely for its own account,
for the purpose of investment and not with a view to distributing or selling it
or any part thereof in violation of the Securities Act, but subject,
nevertheless, to any requirement of law that the disposition of such holder's
property be at all times within its control.
9. Replacement. Upon receipt of evidence reasonably satisfactory to
the Company (an affidavit of the registered holder shall be satisfactory) of the
ownership and the loss, theft, destruction or mutilation of this Warrant, and in
the case of any such loss, theft or destruction, upon receipt of indemnity
reasonably satisfactory to the Company (provided that the holder's own agreement
shall be satisfactory), or, in the case of any such mutilation upon surrender of
this Warrant, the Company shall (at its expense) execute and deliver in lieu of
this Warrant a new warrant of like kind dated the date of such lost, stolen,
destroyed or mutilated Warrant.
10. Notice Generally. Any notice, demand or delivery pursuant to
the provisions hereof shall be sufficiently given or made if sent by first class
mail, postage prepaid, addressed to the holder of this Warrant or of the Common
Stock issued upon the exercise hereof at its last known address appearing on the
books of the Company, or, except as herein otherwise expressly provided, to the
Company at its office, 5333 Westheimer, Suite 1000, Houston, Texas 77056-5407,
Attention of the President, or such other address as shall have been furnished
to the party giving or making such notice, demand or delivery.
11. Voting Rights, Dividends. This Warrant does not grant the holder
hereof any voting rights or other rights as a stockholder of the Company. No
dividends are payable or will accrue on this Warrant or the shares purchasable
hereunder until, and except to the extent that, this Warrant is exercised.
12. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY THE LAW OF THE
STATE OF DELAWARE.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed this ____ day of September, 1995.
AMERICAN ECOLOGY CORPORATION
By: ---------------------------------
Name:
Title:
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SUBSCRIPTION NOTICE
(To be executed only upon exercise of Warrant)
_____________________________, being the undersigned registered owner
of this Warrant irrevocably exercises this Warrant for and purchases __________
shares of the Common Stock, par value $.01 per share (the "Common Stock"), of
American Ecology Corporation, constituting all or part of the shares of Common
Stock purchasable with this Warrant, 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) together with, if such
certificates do not represent all the shares of Common Stock purchasable with
this Warrant, a new Warrant, identical to the canceled Warrant except with
respect to the number of shares of Common Stock evidenced thereby, for the
remaining unsold shares of Common Stock, be issued in the name of and delivered
to the undersigned at the address set forth below.
Dated: ---------------------
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Name of Warrant Holder
By: ---------------------------------
Name:
Title:
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Street Address
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City State Zip Code
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