EXHIBIT 4.4
FORM OF NEW WARRANT
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR OTHERWISE
DISPOSED OF, UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THE SECURITIES ACT
OR AN OPINION OF COUNSEL IS OBTAINED STATING THAT SUCH DISPOSITION IS IN
COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
AS OF DECEMBER 9, 2002
SYSTEMONE TECHNOLOGIES INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF FLORIDA)
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
NO. WRT-[[WARRANTNO.]]
FOR VALUE RECEIVED, SYSTEMONE TECHNOLOGIES INC., a Florida corporation
(the "Company"), hereby certifies that [[Holder]] or assigns (the "Holder") is
entitled, subject to the provisions of this Warrant, to purchase from the
Company, up to [[Warrants]] fully paid and non-assessable shares of Common Stock
at a price of $.01 per share (the "Exercise Price").
The term "Common Stock" means the Common Stock, par value $.001 per
share, of the Company as constituted on the date of issuance of this Warrant.
The number of shares of Common Stock to be received upon the exercise of this
Warrant may be adjusted from time to time as hereinafter set forth. The shares
of Common Stock deliverable upon such exercise, and as adjusted from time to
time, are hereinafter referred to as "Warrant Stock." The term "Other
Securities" means any other equity or debt securities that may be issued by the
Company in addition thereto or in substitution for the Warrant Stock in
accordance with the terms hereof. The term "Company" means and includes the
corporation named above as well as (i) any immediate or more remote successor
corporation resulting from the merger or consolidation of such corporation (or
any immediate or more remote successor corporation of such corporation) with
another corporation, or (ii) any corporation to which such corporation (or any
immediate or more remote successor corporation of such corporation) has
transferred its property or assets as an entirety or substantially as an
entirety.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and (in the case
of loss, theft or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date. Any such new Warrant
executed and delivered shall constitute an additional contractual obligation on
the part of the Company, whether or not this Warrant so lost, stolen, destroyed
or mutilated shall be at any time enforceable by anyone.
The Holder agrees with the Company that this Warrant is issued, and all
the rights hereunder shall be held subject to, all of the conditions,
limitations and provisions set forth herein.
1. EXERCISE OF WARRANT.
1.1 CASH EXERCISE. This Warrant may be exercised, in
whole or in part, at any time, or from time to time, during the period
commencing on the date hereof and expiring 5:00 p.m. Eastern Standard Time on
December 31, 2005 (the "Expiration Date"), by presentation and surrender of this
Warrant to the Company at its principal office, or at the office of its stock
transfer agent, if any, with the Warrant Exercise Form attached hereto duly
executed and accompanied by payment (either in cash or by certified or official
bank check, payable to the order of the Company) of the Exercise Price for the
number of shares specified in such form and instruments of transfer, if
appropriate, duly executed by the Holder or his or her duly authorized attorney.
If this Warrant should be exercised in part only, the Company shall, upon
surrender of this Warrant for cancellation, execute and deliver a new Warrant
evidencing the rights of the Holder thereof to purchase the balance of the
shares purchasable hereunder. Upon receipt by the Company of this Warrant,
together with the Exercise Price, at its office, or by the stock transfer agent
of the Company at its office, in proper form for exercise, the Holder shall be
deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares of Common
Stock shall not then be actually delivered to the Holder. The Company shall pay
any and all documentary stamp or similar issue or transfer taxes payable in
respect of the issue or delivery of shares of Common Stock on exercise of this
Warrant.
1.2 CASHLESS EXERCISE. This Warrant may be exchanged, in
whole or in part (subject to the limitations on exercise hereinabove set forth
in Section 1.1) (a "Warrant Exchange"), at any time, or from time to time,
during the period commencing on the date hereof and ending on the Expiration
Date, into the number of shares of Common Stock determined in accordance with
this Section 1.2, by presentation and surrender of this Warrant to the Company
at its principal office, or at the office of its stock transfer agent, if any,
accompanied by a notice (a "Notice of Exchange") stating that this Warrant is
being exchanged and the number of shares of Common Stock to be exchanged. In
connection with any Warrant Exchange, this Warrant shall represent the right to
subscribe for and acquire the number of shares of Common Stock (rounded to the
nearest whole number) equal to (i) the number of shares specified by the Holder
in its Notice of Exchange (the "Total Number") less the number of shares equal
to the quotient obtained by dividing (A) the product of the Total Number and the
then applicable Exercise Price by (B) the then fair market value (determined in
accordance with Section 3 below) per share of Common Stock. If this Warrant
should be exchanged in part only, the Company shall, upon surrender of this
Warrant for cancellation, execute and deliver a new Warrant evidencing the
rights of the Holder thereof to purchase the balance of the shares purchasable
hereunder. Upon receipt by the Company of this Warrant, together with a duly
executed Notice of Exchange, at its office, or by the stock transfer agent of
the Company at its office, the Holder shall be deemed to be the holder of record
of the shares of Common Stock issuable upon such exchange, notwithstanding that
the stock transfer books of the Company shall then be closed or that
certificates representing such shares of Common Stock shall not then be actually
delivered to the
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Holder. The Company shall pay any and all documentary stamp or similar issue or
transfer taxes payable in respect of the issue or delivery of shares of Common
Stock on exchange of this Warrant.
2. RESERVATION OF SHARES. The Company will at all times reserve
for issuance and delivery upon exercise of this Warrant all shares of Common
Stock or other shares of capital stock of the Company (and Other Securities)
from time to time receivable upon exercise of this Warrant. All such shares (and
Other Securities) shall be duly authorized and, when issued upon such exercise,
shall be validly issued, fully paid and non-assessable and free of all
preemptive rights.
3. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant, but the
Company shall pay the Holder an amount equal to the fair market value of such
fractional share of Common Stock in lieu of each fraction of a share otherwise
called for upon any exercise of this Warrant. For purposes of this Warrant, the
fair market value of a share of Common Stock shall be determined as follows:
(a) If the Common Stock is listed on a National
Securities Exchange or admitted to unlisted trading privileges on such exchange
or listed for trading on the NASDAQ system or the NASDAQ Over-the-Counter
Bulletin Board, the current market value shall be the last reported sale price
of the Common Stock on such exchange or system on the last business day prior to
the date of exercise of this Warrant or if no such sale is made on such day, the
average of the closing bid and asked prices for such day on such exchange or
system; or
(b) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the current market value shall be the mean of the
last reported bid and asked prices reported by the National Quotation Bureau,
Inc. on the last business day prior to the date of the exercise of this Warrant;
or
(c) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not so reported, the
current market value shall be an amount, not less than book value thereof as of
the end of the most recent fiscal year of the Company ending prior to the date
of the exercise of the Warrant, determined by the Board of Directors of the
Company in good faith.
4. EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This
Warrant is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its stock
transfer agent, if any, for other Warrants of different denominations, entitling
the Holder or Holders thereof to purchase in the aggregate the same number of
shares of Common Stock purchasable hereunder. Upon surrender of this Warrant to
the Company or at the office of its stock transfer agent, if any, with the
Assignment Form annexed hereto duly executed and funds sufficient to pay any
transfer tax, subject to the provisions of Section 7 hereof, the Company shall,
without charge, execute and deliver a new Warrant in the name of the assignee
named in such instrument of assignment and this Warrant shall promptly be
canceled. This Warrant may be divided or combined with other Warrants that carry
the same rights upon presentation hereof at the office of the Company or at the
office of its
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stock transfer agent, if any, together with a written notice specifying the
names and denominations in which new Warrants are to be issued and signed by the
Holder hereof.
5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof,
be entitled to any rights of a shareholder in the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed in this
Warrant.
6. ANTI-DILUTION PROVISIONS.
6.1 ADJUSTMENT FOR RECAPITALIZATION. If the Company shall
at any time subdivide its outstanding shares of Common Stock (or Other
Securities at the time receivable upon the exercise of the Warrant) by
recapitalization, reclassification or split-up thereof, or if the Company shall
declare a stock dividend or distribute shares of Common Stock to its
shareholders, the number of shares of Common Stock subject to this Warrant
immediately prior to such subdivision shall be proportionately increased and the
Exercise Price shall be proportionately decreased, and if the Company shall at
any time combine the outstanding shares of Common Stock by recapitalization,
reclassification or combination thereof, the number of shares of Common Stock or
Other Securities subject to this Warrant immediately prior to such combination
shall be proportionately decreased and the Exercise Price shall be
proportionately increased. Any such adjustments pursuant to this Section 6.1
shall be effective at the close of business on the effective date of such
subdivision or combination or if any adjustment is the result of a stock
dividend or distribution then the effective date for such adjustment based
thereon shall be the record date therefor.
6.2 ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER,
ETC. In case of any reorganization of the Company (or any other entity, the
securities of which are at the time receivable on the exercise of this Warrant)
or in case after such date the Company (or any such other entity) shall
consolidate with or merge into another entity or convey all or substantially all
of its assets to another entity, then, and in each such case, the Holder of this
Warrant upon the exercise thereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the securities and property receivable upon
the exercise of this Warrant prior to such consummation, the securities or
property to which such Holder would have been entitled upon such consummation if
such Holder had exercised this Warrant immediately prior thereto; in each such
case, the terms of this Warrant shall be applicable to the securities or
property receivable upon the exercise of this Warrant after such consummation.
6.3 NO DILUTION.
(a) From the date of issuance of this Warrant
until the date on which the Company first consummates a sale of shares of its
equity securities (within the meaning of Section 3(a)(11) of the Securities
Exchange Act of 1934, as amended) or debt securities convertible into equity
securities for gross cash proceeds to the Company of more than $2.0 million
(such period through such later date, hereinafter referred to as the "Reset
Period") other than Excluded Shares (as hereinafter defined), if the Company
shall issue or enter into any agreement to issue any shares of Common Stock
other than Excluded Shares for consideration per share (the "Issuance Price")
less than the Exercise Price per share in effect immediately prior to such
issuance, the Exercise Price in effect immediately prior
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to such issuance shall be reduced (but shall not be increased) to the Issuance
Price. For purposes hereof, the term "Excluded Shares" shall mean (1) any shares
of Common Stock issued in a transaction described in Sections 6.1 and 6.2 of
this Warrant; (2) issuances of shares of Common Stock from time to time pursuant
to employment agreements, stock option or bonus plans authorized by the Board of
Directors of the Corporation as of the date hereof and from time to time
thereafter, (3) issuances of Common Stock, or options to acquire shares of
Common Stock, or securities convertible into or exchangeable for Common Stock
pursuant to the terms of any acquisition by the Company of all or substantially
all of the operating assets, or more than fifty percent (50%) of the voting
capital stock or other controlling interest of any business entity in a
transaction negotiated on an arms-length basis and expressly approved in advance
by the Board of Directors of the Company; (4) issuances of shares of Common
Stock from time to time upon the exercise, exchange or conversion of warrants,
options, convertible securities, the Company's outstanding 8.25% Subordinated
Convertible Notes Due December 31, 2005, the Company's outstanding Secured Notes
Due December 31, 2005 or other securities outstanding as of the date hereof and
pursuant to the written terms of such securities as they exist as of the date
hereof, and (5) issuances of shares of Common Stock from time to time pursuant
to the anti-dilution provisions of other securities of the Company. For purposes
hereof, "voting capital stock" shall be deemed to be capital stock of any class
or classes, however designated having ordinary voting power for the election of
members of the board of directors or other governing body and "controlling"
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a party, whether through
the ownership of voting capital stock, by contract or otherwise.
(b) If, at any time after the date of issuance
of this Warrant, the Company shall issue or enter into any agreement to issue
any shares of Common Stock other than Excluded Shares for consideration per
share lower than the market price (as defined below) per share, but (solely
during the Reset Period) greater than the Exercise Price per share, in effect
immediately prior to such issuance, the Exercise Price in effect immediately
prior to such issuance shall be reduced (but shall not be increased) to the
price (calculated to the nearest cent) determined by multiplying the Exercise
Price in effect immediately prior to such issuance by the factor determined by
dividing (1) an amount equal to the sum of (A) the number of shares of Common
Stock outstanding on a fully diluted basis immediately prior to such issuance
multiplied by the market price per share in effect immediately prior to such
issuance and (B) the consideration, if any, received by the Company upon such
issuance by (2) the number of shares of Common Stock outstanding on a fully
diluted basis immediately after such issuance multiplied by the market price per
share in effect immediately prior to such issuance; provided, however, no
adjustment shall be made to the Exercise Price if (1) such issuance is in
connection with a firm commitment underwritten public offering or (2) the
consideration per share is equal to or greater than 85% of the market price per
share in effect immediately prior to such issuance. For purposes hereof, the
"market price" as of any measurement date shall be the average of the closing
prices of the Common Stock for each of the 10 consecutive trading days
immediately preceding such measurement date for which trades of the Common Stock
have been reported.
(c) The Company will not, by amendment of its
Articles of Incorporation or through reorganization, consolidation, merger,
dissolution, issue or sale of securities, sale of assets or any other voluntary
action, avoid or seek to avoid the observance or
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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 dilution or other impairment.
(d) For further clarity, any change to the
exercise price or other terms of the 8.25% Subordinated Convertible Notes Due
December 31, 2005 shall not count to determining the Reset Period, but shall be
taken into account in determining whether any adjustment to the Exercise Price
is due under this Section 6.3.
(e) The Exercise Price shall be subject to
adjustment from time to time as previously provided in this section 6.3. Upon
each adjustment of the Exercise Price, the holder of the Warrant evidenced
hereby shall thereafter be entitled to purchase, at the Exercise Price resulting
from such adjustment, the number of shares of Common Stock (calculated to the
nearest whole share pursuant to Section 3) obtained by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of shares
purchasable pursuant hereto immediately prior to such adjustment and dividing
the product by the Exercise Price resulting from such adjustment.
6.4 CERTIFICATE AS TO ADJUSTMENTS. In each case of an
adjustment in the number of shares of Warrant Stock or Other Securities
receivable on the exercise of this Warrant, or the Exercise Price, the Company
at its expense will promptly compute such adjustment in accordance with the
terms of this Warrant and prepare a certificate executed by an executive officer
of the Company setting forth such adjustment and showing in detail the facts
upon which such adjustment is based. The Company will forthwith mail a copy of
each such certificate to the Holder.
6.5 NOTICES OF RECORD DATE, ETC. In case:
(a) the Company shall take a record of the holders of its
Common Stock (or Other Securities at the time receivable upon the exercise of
the Warrant) for the purpose of entitling them to receive any dividend (other
than a cash dividend at the same rate as the rate of the last cash dividend
theretofore paid) or other distribution, or any right to subscribe for, purchase
or otherwise acquire 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 entity, or any conveyance of all or
substantially all of the assets of the Company to another entity; or
(c) of any voluntary or involuntary dissolution,
liquidation, partial liquidation or winding up of the Company, or
(d) any event resulting in the expiration of the Reset
Period, then,
and in each such case, the Company shall mail or cause to be mailed to each
Holder of the Warrant at the time outstanding a notice specifying, as the case
may be, (i) the date on which a
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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 date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up is to take place, and
the time, if any, to be fixed, as to which the holders of record of Common Stock
(or such other securities at the time receivable upon the exercise of the
Warrant) shall be entitled to exchange their shares of Common Stock (or such
other securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding up. Such notice shall be mailed at least 20
days prior to the date therein specified.
7. TRANSFER TO COMPLY WITH THE SECURITIES ACT. Notwithstanding
any other provision contained herein, this Warrant and any Warrant Stock or
Other Securities may not be sold, transferred, pledged, hypothecated or
otherwise disposed of except as follows: (a) to a person who, in the opinion of
counsel reasonably acceptable to the Company, is a person to whom this Warrant
or the Warrant Stock or Other Securities may legally be transferred without
registration and without the delivery of a current prospectus under the
Securities Act of 1933 (the "Securities Act") with respect thereto; or (b) to
any person upon delivery of a prospectus then meeting the requirements of the
Securities Act relating to such securities and the offering thereof for such
sale or disposition, and thereafter to all successive assignees.
8. LEGEND. Unless the shares of Warrant Stock or Other Securities
have been registered under the Securities Act, upon exercise of any of the
Warrants and the issuance of any of the shares of Warrant Stock or Other
Securities, all certificates representing such securities shall bear on the face
thereof substantially the following legend:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be sold, offered for sale, assigned, transferred or
otherwise disposed of, unless registered pursuant to the
provisions of that Act or unless an opinion of counsel is
obtained stating that such disposition is in compliance with
an available exemption from such registration.
9. NOTICES. All notices required hereunder shall be in writing
and shall be deemed given when telegraphed, delivered personally or within two
days after mailing when mailed by certified or registered mail, return receipt
requested, to the Company at its principal office, or to the Holder at the
address set forth on the record books of the Company, or at such other address
of which the Company or the Holder has been advised by notice hereunder.
10. APPLICABLE LAW. The Warrant is issued under and shall for all
purposes be governed by and construed in accordance with the laws of the State
of Florida, without giving effect to the choice of law rules thereof.
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IN WITNESS HEREOF, the Company has caused this Warrant to be signed on
its behalf, in its corporate name, by its duly authorized officer, all as of the
day and year first above written.
SYSTEMONE TECHNOLOGIES INC.
By:___________________________
Name: Paul I. Mansur
Title: Chief Executive Officer
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WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise the within Warrant to the
extent of purchasing ____________ shares of Common Stock of SystemOne
Technologies Inc., a Florida corporation, and hereby makes payment of
$____________ in payment therefor.
________________________________
Signature
________________________________
Signature, if jointly held
________________________________
Date
INSTRUCTIONS FOR ISSUANCE OF STOCK
(if other than to the registered holder of the within Warrant)
Name____________________________________________________________________________
(Please typewrite or print in block letters)
Address_________________________________________________________________________
Social Security or
Taxpayer Identification Number__________________________________________________
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ASSIGNMENT FORM
FOR VALUE RECEIVED,_____________________________________________________________
hereby sells, assigns and transfers unto
Name____________________________________________________________________________
(Please typewrite or print in block letters)
the right to purchase Common Stock of SystemOne Technologies Inc., a Florida
corporation, represented by this Warrant to the extent of shares as to which
such right is exercisable and does hereby irrevocably constitute and appoint
___________________________________________, Attorney, to transfer the same on
the books of the Company with full power of substitution in the premises.
DATED: ____________, 200_.
________________________________
Signature
________________________________
Signature, if jointly held
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