EXHIBIT 4.8
WARRANT TO PURCHASE SHARES OF COMMON STOCK OF ENVIRONMENTAL
REMEDIATION HOLDING CORPORATION
________________ Shares As of June 24, 1998 New York, New York
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") AND SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
VOID AFTER 5:00 P.M., NEW YORK TIME
ON June 23, 2003
THIS CERTIFIES THAT for value received, _______________________, or their
registered permitted assigns (sometimes hereinafter referred to as the
"Holder"), may subscribe for and purchase, subject to the terms and conditions
hereof, from ENVIRONMENTAL REMEDIATION HOLDING CORPORATION, a Colorado
corporation (the ("Company"), an amount of shares of common stock of the
Company, par value $0.0001 per share (the "Common Stock") equal to 12.4% of the
amount of the Note, as set forth and defined in Section 1(e) hereto, at any time
during the period (the "Exercise Period") from 9:00 am. New York Time on the
Effective Date (as such term is hereinafter defined) and ending at 5:00 p.m. New
York Time, on June 23, 2003 (the "Expiration Date"), at an exercise price equal
to an amount per share to be determined by formula (the "Exercise Price"); such
Exercise Price being 120% of the average of the Closing Bid Price of the
Company's Common Stock for each of the five (5) consecutive trading days ending
on the day prior to the issuance date set forth above. The number of shares of
Common Stock purchasable upon exercise of this Warrant (the "Warrant"), the
Exercise Price, and the kind of securities purchasable upon exercise of this
Warrant, shall be subject to adjustment from time to time upon the occurrence of
certain events as set forth below. The shares of Common Stock receivable upon
exercise of this Warrant, as adjusted from time to time, are sometimes referred
to hereinafter as "Exercise Shares."
1. Exercise Price and Expiration.
(a) This Warrant may be exercised in whole or in part on any Business Day (as
such term is hereinafter defined) at any time during the Exercise Period upon
surrender to the Company, at its address for notices set forth in Section 9 of
this Warrant (or at such other office of the Company, if any, or such other
office of the Company's duly authorized agent for such purpose, as may be
maintained by the Company for such purpose and so designated by the Company by
written notice to the Holders prior to such exercise), together with the
following: (i) a duly completed and executed Notice of Warrant Exercise in the
form annexed hereto, and (ii) payment of the full Exercise Price for this
Warrant or the portion thereof then being exercised. This Warrant and all rights
and options hereunder shall expire on, and shall be immediately wholly null and
void to the extent the Warrant is not properly exercised prior to the
Expiration. As used in this Warrant the term "Business Day" shall mean the time
period between 9:00 a.m. New York, New York Time and 5:00 p.m. New York, New
York Time on any day other than any Saturday, Sunday, or other day on which
commercial banks in New York, New York are required or are authorized by law to
close.
(b) Such Exercise Price shall be paid in lawful money of the United States of
America by bank cashier's check or by wire transfer of immediately available
funds to such account as shall have been designated in writing by the Company to
the Holders from time to time.
(c) The Company shall, immediately upon receipt of a notice of exercise, issue
and deliver to or upon the order of such Holder, against delivery of the Warrant
and payment of the Exercise Price, a certificate or certificates for the number
of shares of Common Stock to which such Holder shall be entitled and such
certificate or certificates shall not bear any restrictive legend; provided, (i)
the Common Stock evidenced thereby are sold pursuant to an effective
registration statement under the Securities Act, (ii) the Holder provides the
Company with an opinion of counsel reasonably acceptable to the Company to the
effect that a public sale of such shares may be made without registration under
the Securities Act, or (iii) such holder provides the Company with reasonable
assurance that such shares can be sold free of any limitations imposed by Rule
144, promulgated under the Securities Act. The Company shall cause such issuance
and delivery to be effected within three (3) business days and shall transmit
the certificates by messenger or overnight delivery service, or via the DWAC
system, to reach the address designated by such Holder within three (3) business
days after the receipt of such notice. The Holders shall be deemed to be the
Holders 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 Holders. If, at the time this Warrant is
exercised, a registration statement under the Securities Act is not then in
effect to register the Exercise Shares under said Securities Act the Exercise
Shares issuable upon exercise of this Warrant (together with any applicable
state securities law registrations), the Company may require the Holders to make
such representations, and may place such legends on certificates representing
the Exercise Shares, as may be reasonably required in the opinion of counsel to
the Company to permit the Exercise Shares to be issued without such
registration, unless the Company receives an opinion of counsel reasonably
satisfactory to counsel to the Company to the effect that said securities may be
freely traded without registration under the Securities Act.
(d) If the Holders shall exercise this Warrant with respect to less than all of
the Exercise Shares that may then be purchased under this Warrant, having taken
into account any prior exercise of the Warrant, the Company shall promptly
execute and deliver to the Holders a new warrant in the form of this Warrant for
the balance of such Exercise Shares.
(e) For purposes of the Warrant, the term "Effective Date" shall mean the date
that the holder of this Warrant shall have purchased from the Company $
____________ principal amount of the Company's 5.5% convertible note due June
23, 2000 (the "Note") pursuant to the Securities Purchase Agreement, dated as of
June 24, 1998 (the "Securities Purchase Agreement"). Unless otherwise defined
herein, all capitalized terms used in this Warrant shall have the same meaning
as is defined in the Securities Purchase Agreement or in the Note.
2. Anti-dilution.
If the Company shall
(a) pay a dividend or make a distribution to holders of shares of Company Common
Stock in the form of additional shares of Common Stock,
(b) subdivide or split or reverse split or consolidate the outstanding shares of
Common Stock into a larger or smaller number of shares, or
(c) effect a recapitalization which shall reclassify the outstanding shares of
Common Stock into one or more classes of common stock,
the number of shares of Common Stock issuable upon exercise of this Warrant and
the Exercise Price shall be equitably and proportionately adjusted immediately
following the occurrence of any such event, and the Holder of record of this
Warrant shall be given notice of the same at such Holder's address in the
Company's books and records. An adjustment made pursuant to this Section shall
become effective immediately after the record date in the case of a dividend or
distribution and immediately after the effective date in the case of a
subdivision, split, combination or reclassification; provided, if such record
date shall have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the exercise price
shall be recomputed accordingly as of the close of business on such record date
and thereafter such exercise price in effect shall be as adjusted pursuant to
this Section as of the time of actual payment of such dividend or distribution.
3. Reorganization and Asset Sales.
If any capital reorganization or reclassification of the capital stock of the
Company, or any consolidation or merger of the Company with another corporation,
or the sale of all or substantially all of the assets or properties of the
Company to another corporation, shall be effected in such a manner so that
holders of Company Common Stock shall be entitled to receive stock, securities
or assets with respect to or in exchange for Company Common Stock, then, and in
such event, the following provisions shall apply:
(a) Not more than 90 or less than 30 days prior to the consummation of any such
reorganization, reclassification, consolidation, merger or sale (collectively,
"Reorganization Transactions"), the Company shall notify the Holders of the
Reorganization Transaction (at the same time notice of same shall be made
generally available to other holders of Company Common Stock), describing in
such notice in reasonable detail the terms of the Reorganization Transaction and
the stock, securities or assets to be received with respect to or in exchange
for Common Stock of the Company. In the event the Holders exercise the Warrant
prior to or simultaneous with the consummation of the Reorganization
Transaction, the Holders shall be entitled to receive stock, securities or
assets with respect to or in exchange for Common Stock on the same basis as the
other holders of Company Common Stock participating in the Reorganization
Transaction.
(b) The Company shall not effect any such Reorganization Transaction unless
prior to or simultaneous with the consummation thereof, the successor
corporation (if other than the Company) resulting therefrom shall assume by
written instrument executed and made available to the Holders at the last
address of the Holders appearing on the books of the Company, the obligation to
deliver to the Holders such shares of stock, securities or assets, as, in
accordance with the foregoing provisions, the Holders may be entitled to
receive, and all other liabilities and obligations of the Company hereunder. In
the event the Holders of this Warrant shall not exercise the Warrant prior to or
simultaneous with consummation of the Reorganization Transaction, such Holders
shall be entitled to receive a warrant to purchase common stock in the successor
corporation (if other than the Company) which shall be appropriately adjusted as
to exercise price, number of shares which may be purchased thereunder and other
terms, so as to equitably reflect the Reorganization Transaction and entitle the
Holder to purchase that number of shares of common stock of the successor
corporation equivalent in value to the consideration that such Holder would have
received had Holder exercised this Warrant immediately prior to or
simultaneously with such Reorganization Transaction.
(c) If a purchase, tender or exchange offer is made to and accepted by the
holders of more than 50 percent of the outstanding shares of Common Stock of the
Company, the Company shall, prior to the consummation of any consolidation,
merger or sale to or with the person, firm or corporation having made such offer
or any affiliate of such person, firm or corporation, give the Holders a
reasonable opportunity of not less than 10 days to elect to receive upon the
exercise of this Warrant, either the stock, securities or assets then issuable
with respect to the Common Stock of the Company or the stock, securities or
assets, or the equivalent, issued to previous holders of the Common Stock in
accordance with such purchase tender or exchange offer.
4. Notice of Adjustment.
Whenever the Exercise and the number of Exercise Shares issuable upon the
exercise of this Warrant shall be adjusted as herein provided, or the rights of
the Holders shall change by reason of other events specified herein, the Company
shall compute the adjusted Exercise Price and the number of adjusted Exercise
Shares in accordance with the provisions hereof and shall prepare a certificate
signed by its Chief Executive Officer, or its President, or its Chief Financial
Officer, setting forth the adjusted Exercise Price and the adjusted number of
Exercise Shares issuable upon the exercise of this Warrant or specifying the
other shares of stock, securities, or assets receivable as a result of such
changes in rights, and showing in reasonable detail the facts and calculations
upon which such adjustments or other changes are based. The Company shall caused
to be mailed to the Holders copies of such officer's certificate together with a
notice stating that the Exercise Price and the number of Exercise Shares
purchasable upon exercise of this Warrant have been adjusted and setting, forth
the adjusted Exercise Price and the adjusted number of Exercise Shares
purchasable upon the exercise of this Warrant.
5. Piggyback Registration Rights.
(a) At any time that the Company proposes to file a Company registration
statement on Form S-1 or any other appropriate registration form under the
Securities Act of 1933, as amended (the "Registrations Statement"), either for
its own account or for the account of a stockholder or stockholders, the Company
shall give the Holder written notice of its intention to do so and of the
intended method of sale (the "Registration Notice") within a reasonable time
prior to the anticipated filing date of the Company's Registration Statement
effecting such Company registration. Holder may request inclusion of any which
are issued as with restrictions on transferability ("Restricted Securities") in
such Registration
Statement by delivering to the Company, within ten (10) Business Days after
receipt of the Registration Notice, a written notice (the "Piggyback Notice")
stating the number of Restricted Securities proposed to be included and that
such shares are to be included in any underwriting only on the same terms and
conditions as the shares of Common Stock otherwise being sold through
underwriters under such Company Registration Statement. The Company shall use
its best efforts to cause all Restricted Securities specified in the Piggyback
Notice to be included in the Company Registration Statement and any related
offering, all to the extent requisite to permit the sale by the Holder of its
Restricted Securities in accordance with the method of sale applicable to the
other shares of Common Stock included in such Company Registration Statement;
provided, however, that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
Company Registration Statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay registration
of Holder's Restricted Securities, the Company may, at its election, give
written notice of such determination to Holder and, thereupon:
(i) in the ease of a determination not to register, shall be relieved
of its obligation to register Holder's Restricted Securities in connection with
such registration, and
(ii) in the case of a delay in registering, shall be permitted to delay
registering Holder's Restricted Securities for the same period as the delay in
registering such other securities.
(b) The Company's obligation to include Restricted Securities in a Company's
Registration Statement pursuant to Section 7(a) shall be subject to the
following limitations:
(i) The Company shall not be obligated to include any Restricted
Securities in a registration statement filed on Form S-4, Form S-8 or such other
similar successor forms then in effect under the Securities Act.
(ii) If a Company Registration Statement involves an underwritten
offering and the managing underwriter advises the Company in writing that in its
opinion, the number of securities requested to be included in such Company
Registration Statement exceeds the number which can be sold in such offering
without adversely affecting the offering, the Company shall include in such
Company Registration Statement the number of such securities which the Company
is so advised can be sold in such offering without adversely affecting the
offering, determined as follows:
(A) first, the securities proposed by the Company to be sold
for it own account, and
(B) second, any Restricted Securities requested to be included
in such registration and any other securities of the Company in accordance with
the priorities, if and then existing among the holders of such securities pro
rata among the holders thereof requesting such registration on the basis of the
number of shares of such securities requested to be included by such holders.
(iii) The Company shall not be obligated to include Restricted
Securities in more than one (1) Company Registration Statement.
(c) To the extent Holder's Restricted Securities are intended to be included in
a Company Registration Statement, Holder may include any of its Restricted
Securities in such Company Registration Statement pursuant to this Agreement
only if Holder furnishes to the Company in writing, within ten (10) business
days after receipt of a written request therefor, such information specified in
Item 507 of Regulation S-K under the Act or such other information as the
Company may reasonably request for use in connection with the Company
Registration Statement or Prospectus or preliminary Prospectus included therein
and in any application to the NASD. Holder as to which the Company Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make all information previously
furnished to the Company by Holder not materially misleading.
6. Certain Representations of the Company.
Throughout the Exercise Period, the Company has
(a) all requisite power and authority to issue this Warrant and the
Exercised Shares, and
(b) sufficient authorized and unissued securities of Common Stock to
permit exercise of this Warrant.
7. Certain Covenants of the Company.
(a) The Company shall take such steps as are necessary to cause the Company to
continue to have sufficient authorized and unissued shares of Common Stock
reserved in order to permit the exercise of the unexercised and unexpired
portion of this Warrant, if any.
(b) The Company covenants and agrees that all Exercise Shares issued upon the
due exercise of this Warrant will, upon issuance in accordance with the terms
hereof, be duly authorized, validly issued, fully paid and non-assessable and
free and clear of all taxes, liens, charges, and security interests created by
the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any, attributable to
the initial issuance of Exercise Shares upon the exercise of this Warrant;
provided, that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issue of this Warrant or of
any certificates for Exercise Shares in a name other than that of the Holders
upon the exercise of this Warrant, and the Company shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax, or shall have established to the satisfaction of the Company that such
tax has been paid.
(d) This Warrant and, when issued, the shares of Common Stock which may be
issued upon exercise of the Warrants, when so issued, will have been issued,
pursuant to an available exemption from registration under the Securities Act,
and the securities laws of the state of residency of the Holder.
(e) The Company covenants and agrees that if it fails (i) to register the
Exercise Shares as provided in a Registration Rights Agreement between the
Holders and the Company, dated of even date herewith, or (ii) issue the shares
of Common Stock upon the proper exercise of the Warrant, then, in additional to
all rights to liquidated damages set forth in the Registration Rights Agreement,
the Holders may immediately commence an action for specific performance and/or
damages. The Company agrees that any judgment entered therein shall include all
reasonable attorney's fees and costs of any kind or nature, whatsoever,
including but not limited to expert witness fees, service fees and filing fees
incurred by the Holders, in conjunction with said action, and if damages are
sought, the Holders shall be entitled to interest at the rate of 12% per annum
on any damage award from the date of exercise.
8. No Shareholder Rights.
No Holders of this Warrant shall, as such, be entitled to vote or be deemed the
holder of Common Stock or any other kind of securities of the Company, nor shall
anything contained herein be construed to confer upon the Holders the rights of
a shareholder of the Company or the right to vote for the election of directors
or upon any matter submitted to shareholders at any meeting thereof, or give or
withhold consent to any corporate action or to receive notice of meetings or
other actions affecting shareholders (except as otherwise expressly provided
herein), or to receive dividends or subscription rights or otherwise, until the
date of Holders proper exercise of this Warrant as described herein.
9. Notices.
Any notice, demand, request, waiver or other communication under this Agreement
must be in writing and will be deemed to have been duly given (i) on the date of
delivery if delivered by hand to the address of the party specified below
(including delivery by courier), or (ii) on the fifth day after deposit in the
U.S. Mail if mailed to the party to whom notice is to be given to the address
specified below, by first class mail, certified or registered, return receipt
requested, First Class postage prepaid, to the Company and to the Holder at the
addresses specified in the Securities Purchase Agreement.
With a copy sent concurrently to:
Greenberg Traurig Hoffman
Lipoff Rosen & Quentel
Met Life Building
200 Park Avenue
New York, New York 10166
Attention: Stephen A. Weiss, Esq.
Tel: (212) 801-9200
Fax: (212) 801-6400
-and-
Mintmire & Associates
265 Sunrise Avenue, Suite 204
Palm Beach, Florida 33480
Attention: Donald F. Mintmire, Esq.
Tel: (561) 832-5696
Fax: (561) 659-5371
Any party may from time to time change its address for the purpose of notices to
that party by a similar notice specifying a new address, but no such change will
be deemed to have been given until it is actually received by the party sought
to be charged with its contents.
10. General.
(a) This Warrant shall be governed by and construed in accordance with the laws
of the State of New York without regard to its conflict of law provisions.
(b) Any dispute regarding the interpretation or application of this Warrant
which cannot be settled among the parties shall be resolved in Austin, Texas
final and binding arbitration in accordance with the then obtaining rules of the
American Arbitration Association. There shall be appointed three arbitrators,
one of whom shall be selected by the Company, the second by the Holder and the
third by mutual agreement of the parties or by the American Arbitration
Association. The decision of the arbitrators shall be final and upon the Holder
and the Company and may be enforced by the prevailing party or parties in any
court of competent jurisdiction. Each party shall bear their own costs of the
arbitration and shall share equally the costs of the arbitrators.
(c) Section and subsection headings used herein are included herein for
convenience of reference only and shall not affect the construction of this
Warrant or constitute a part of this Warrant for any other purpose.
(D) This Warrant may be executed simultaneously in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the Same instrument when instruments originally executed by
each party shall have been received by the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement on and as of the
date first set forth above.
ENVIRONMENTAL REMEDIATION HOLDING
CORPORATION
By: ___________________________________________
James A. Griffin, Secretary
HOLDER:
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NOTICE OF WARRANT EXERCISE
TO: ENVIRONMENTAL REMEDIATION HOLDING CORPORATION:
The undersigned hereby irrevocably elects to exercise the Warrant and
to purchase thereunder _______ full shares of Common Stock issuable upon the
exercise of such Warrant. The Exercise Price for this warrant shall be paid by
delivery of $ _____________ In cash as provided for in the Warrant.
The undersigned requests that certificates for such Exercise Shares be
issued in the name of:
Name: _______________________________________________________
Address: _____________________________________________________
Employer I.D. or S. S. #
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If such number of Warrants shall not be all the Warrants evidenced by the
Warrant document, the undersigned requests that a new document evidencing the
Warrants not so exercised issued and registered in the name of and delivered to:
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Name
------------------------------------------
Address
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Employer I.D. or Social Security Number
Date: _________________ __________________________________________
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Warrant Certificate.)