EXHIBIT 4.9
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF 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 AN OPINION OF COUNSEL TO
THE COMPANY IS OBTAINED STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
WARRANT TO PURCHASE SHARES OF COMMON STOCK OF
ENVIRONMENTAL SAFEGUARDS, INC.
Void after 5:00 p.m. Houston, Texas
local time, on April 30, 2005
NO. W-RR,LLC-001 1,500,000 Warrants
This Warrant Certificate certifies that RINECO RECYCLING, LLC (the
"Holder") is the owner of 1,500,000 Warrants (subject to adjustment as provided
herein), each of which represents the right to subscribe for and purchase from
Environmental Safeguards, Inc., a Nevada corporation (the "Company"), one share
of the common stock, par value $0.001 per share, of the Company (the common
stock, including any stock into which it maybe changed, reclassified or
converted, is herein referred to as the "Common Stock") at the purchase price
(the "Exercise Price") of $0.01 per share (subject to adjustment as provided
herein).
The Warrants represented by this Warrant Certificate are subject to the
following provisions, terms and conditions:
1. Exercise of Warrants
Exercise of Warrants. The Warrants may be exercised by the Holder in
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whole, or in part, by surrender of this Warrant Certificate at the office of the
Company (or such other office or agency of the Company as may be designated by
notice in writing to the Holder at the address of such Holder appearing on the
books of the Company) with the appropriate form attached hereto duly completed,
at any time within the period beginning on the date hereof and expiring at 5:00
p.m. Houston, Texas, local time, on April 30, 2005 (the "Exercise Period") and
by payment to the Company by certified check or bank draft of the Exercise Price
for such shares. The Company agrees that the shares of Common Stock so purchased
shall be and are deemed to be issued to the Holder as the record owner of such
shares of Common Stock as of the close of business on the date on which the
Warrant Certificate shall have been surrendered and payment made for such shares
of
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Common Stock. Certificates representing the shares of Common Stock so purchased
shall be delivered to the Holder promptly, and, unless the Warrants have
expired, a new Warrant Certificate representing the number of Warrants
represented by the surrendered Warrant Certificate, if any, that shall not have
been exercised also shall be delivered to the Holder within such time.
2. ADJUSTMENTS
A. Adjustments. The Exercise Price and the number of shares of Common
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Stock issuable upon exercise of each Warrant shall be subject to adjustment from
time to time as follows:
(1) Stock Dividends; Stock Splits; Reverse Stock Splits;
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Reclassifications. In case the Company shall (i) pay a dividend with respect to
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its Common Stock in shares of capital stock, (ii) subdivide its outstanding
shares of Common Stock, (iii) combine its outstanding shares of Common Stock
into a smaller number of shares of any class of Common Stock or (iv) issue any
shares of its capital stock in a reclassification of the Common Stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), other than elimination of par value,
a change in par value, or a change from par value to no par value (any one of
which actions is herein referred to as an "Adjustment Event"), the number of
shares of Common Stock purchasable upon exercise of each Warrant immediately
prior to the record date for such Adjustment Event shall be adjusted so that the
Holder shall thereafter be entitled to receive the number of shares of Common
Stock or other securities of the Company (such other securities thereafter
enjoying the rights of shares of Common Stock under this Warrant Certificate)
that such Holder would have owned or have been entitled to receive after the
happening of such Adjustment Event, had such Warrant been exercised immediately
prior to the happening of such Adjustment Event or any record date with respect
thereto. An adjustment made pursuant to this Section 2A(1) shall become
effective immediately after the effective date of such Adjustment Event
retroactive to the record date, if any, for such Adjustment Event.
(2) Adjustment of Exercise Price. Whenever the number of shares of
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Common Stock purchasable upon the exercise of each Warrant is adjusted pursuant
to Section 2A(1), the Exercise Price for each share of Common Stock payable upon
exercise of each Warrant shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, the numerator of which shall
be the number of shares of Common Stock purchasable upon the exercise of each
Warrant immediately prior to such adjustment, and the denominator of which shall
be the number of shares of Common Stock so purchasable immediately thereafter.
(3) De Minimis Adjustments. No adjustment in the number of shares of
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Common Stock for which this Warrant is exercisable shall be required unless such
adjustment would require an increase or decrease of at least 1% in the number of
shares of Common Stock for which this Warrant is exercisable; provided, however,
that any adjustments which by reason of this subsection (3) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 2 shall be made to the nearest
one-hundredth of a share.
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B. Notice of Adjustment. Whenever the number of shares of Common
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Stock purchasable upon the exercise of each Warrant or the Exercise Price is
adjusted, as herein provided, the Company shall promptly notify the Holder in
writing (such writing referred to as an "Adjustment Notice") of such adjustment
or adjustments and shall deliver to such Holder a statement setting forth the
number of shares of Common Stock purchasable upon the exercise of each Warrant
and the Exercise Price after such adjustment, setting forth a brief statement of
the facts requiring such adjustment and setting forth the computation by which
such adjustment was made.
C. Statement on Warrant Certificates. The form of this Warrant
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Certificate need not be changed because of any change in the Exercise Price or
in the number or kind of shares purchasable upon the exercise of a Warrant.
However, the Company may at any time in its sole discretion make any change in
the form of the Warrant Certificate that it may deem appropriate and that does
not affect the substance thereof and any Warrant Certificate thereafter issued,
whether in exchange or substitution for any outstanding Warrant Certificate or
otherwise, maybe in the form so changed.
D. Fractional Interest. The Company shall not be required to issue
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fractional shares of Common Stock on the exercise of the Warrants. The number of
full shares of Common Stock which shall be issuable upon such exercise shall be
computed on the basis of the aggregate number of whole shares of Common Stock
purchasable on the exercise of the Warrants so presented. If any fraction of a
share of Common Stock would, except for the provisions of this Section 2D be
issuable on the exercise of the Warrants (or specified proportion thereof), the
Company shall pay an amount in cash calculated by it to be equal to the then
fair value of one share of Common Stock, as determined by the Board of Directors
of the Company in good faith, multiplied by such fraction computed to the
nearest whole cent.
3. RESERVATION AND AUTHORIZATION OF COMMON STOCK
The Company covenants and agrees (a) that all shares of Common Stock
which may be issued upon the exercise of the Warrants represented by this
Warrant Certificate, upon issuance and when fully paid for, will be validly
issued, fully paid and nonassessable and free of all taxes, liens, charges,
encumbrances and security interests other than those attaching by or through the
Holder, (b) that during the Exercise Period, the Company will at all times have
authorized, and reserved for the purpose of issue or transfer upon exercise of
the Warrants evidenced by this Warrant Certificate, sufficient shares of Common
Stock to provide for the exercise of the Warrants represented by this Warrant
Certificate and (c) that the Company will take all such action as may be
necessary to ensure that the shares of Common Stock issuable upon the exercise
of the Warrants may be so issued without violation of any applicable law or
regulation, or any requirement of any securities exchange upon which any capital
stock of the Company may be listed.
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4. NO RIGHTS OF STOCKHOLDER
The Warrant Holder shall not be entitled to vote or to receive dividends or
shall otherwise be deemed to be the holder of shares of Common Stock for any
purpose, nor shall anything contained herein or in any Warrant Certificate be
construed to confer upon the Holder, as such, any of the rights of a stockholder
of the Company or any right to vote upon or give or withhold consent to any
action of the Company (whether upon any reorganization, issuance of securities,
reclassification or conversion of Common Stock, consolidation, merger, sale,
lease, conveyance, or otherwise), receive notice of meetings or other action
affecting stockholders (except for notices expressly provided for herein) or
receive dividends or subscription rights, until the Warrant Certificate shall
have been surrendered for exercise accompanied by full and proper payment of the
Exercise Price as provided herein and shares of Common Stock hereunder shall
have become issuable and until the Holder shall have been deemed to have become
a holder of record of such shares. The Holder shall not, upon the exercise of
Warrants, be entitled to any dividends if the record date with respect to
payment of such dividends shall be a date prior to the date such shares of
Common Stock became issuable upon the exercise of such Warrants.
5. RESTRICTIONS ON TRANSFER
This Warrant Certificate, the Warrants it evidences and the underlying
Common Stock issued on exercise of the Warrants, may not be sold, transferred or
otherwise disposed of without registration under the Securities Act of 1933, as
amended (the "Act"), or any exemption therefrom and for which the Company is
provided with an opinion of counsel to the Holder, reasonably satisfactory to
the Company, to the effect that such transfer is not in violation of any of said
securities laws.
6. CLOSING OF BOOKS
The Company will at no time close its transfer books against the
transfer of any Warrant or of any shares of Common Stock or other securities
issuable upon the exercise of any Warrant in any manner which interferes with
the timely exercise of the Warrants.
7. WARRANTS EXCHANGEABLE; LOSS, THEFT
This Warrant Certificate is exchangeable, upon the surrender hereof by
any Holder at the office or agency of the Company referred to in Section 1, for
new Warrant Certificates of like tenor representing in the aggregate the right
to subscribe for and purchase the number of shares of Common Stock which may be
subscribed for and purchased hereunder, each such new Warrant to represent the
right to subscribe and purchase such number of shares of Common Stock as shall
be designated by said Holder hereof at the time of such surrender. Upon receipt
of evidence satisfactory to the Company of the loss, theft, destruction or
mutilation, or upon surrender or cancellation of this Warrant Certificate, the
Company will issue to the Holder hereof a new Warrant Certificate of like
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tenor, in lieu of this Warrant Certificate, representing the right to subscribe
for and purchase the number of shares of Common Stock which maybe subscribed for
and purchased hereunder.
8. MERGERS, CONSOLIDATIONS
If the Company shall merge or consolidate with another corporation,
the Holder of this Warrant shall thereafter have the right, upon exercise hereof
and payment of the Exercise Price, to receive solely the kind and amount of
shares of stock (including, if applicable, Common Stock), other securities,
property or cash or any combination thereof receivable by a holder of the number
of shares of Common Stock, as adjusted from time to time, for which this Warrant
might have been exercised immediately prior to such merger or consolidation
(assuming, if applicable, that the Holder of such Common Stock failed to
exercise its rights of election, if any, as to the kind or amount of shares of
stock, other securities, property or cash or combination thereof receivable upon
such merger or consolidation).
9. REGISTRATION RIGHTS
The Holder shall have such registration rights with respect to the
shares of Common Stock underlying the Warrants as are granted in that certain
Registration Rights Agreement between the Holder and the Company and dated the
date of this Warrant Certificate.
10. EXPENSES
The Holder shall bear the cost of all underwriting discounts, selling
Commissions and stock transfer taxes applicable to the Warrant and the Common
Stock underlying the Warrants.
Dated this 20th day of March, 2003.
ENVIRONMENTAL SAFEGUARDS, INC.
By: /s/ James S. Percell
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James S. Percell, President
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[FORM OF ELECTION TO PURCHASE]
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _____ shares of Common
Stock and herewith tenders in payment for such shares a certified check or bank
draft payable to the order of Environmental Safeguards, Inc. in the amount of
$_____, all in accordance with the terms hereof. The undersigned requests that a
certificate for such shares be registered in the name of _______________ whose
address is _________________________________ and that such certificate (or any
payment in lieu thereof) be delivered to ___________ whose address is
_________________________.
Dated:_________ _____________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant.)
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