Exhibit 10.2
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF
(COLLECTIVELY THE "SECURITIES") HAVE BEEN ACQUIRED FOR INVESTMENT ONLY AND HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR
ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO TELETRAK
ENVIRONMENTAL SYSTEMS, INC. THAT AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
TELETRAK ENVIRONMENTAL SYSTEMS, INC.
COMMON STOCK PURCHASE WARRANT CERTIFICATE
TO PURCHASE 0,000
SHARES OF COMMON STOCK
Cert. No. TES-1
This Warrant Certificate certifies that HOLDER ,
with offices at ADDRESS or its
registered assigns is the registered Holder (the "Holder") of ,000 Common
Stock Purchase Warrants (the "Warrants") to purchase shares of the common
stock, $.01 par value (the "Common Stock") of TELETRAK ENVIRONMENTAL SYSTEMS,
INC., a Delaware corporation (the "Company").
1. EXERCISE OF WARRANT.
(A) Each Warrant enables the Holder, subject to the provisions of this
Warrant Certificate to purchase from the Company at any time and from time to
time commencing on the date hereof (the "Initial Exercise Date") one (1) fully
paid and non-assessable share of Common Stock ("Shares") upon due presentation
and surrender of this Warrant Certificate accompanied by payment of the purchase
price of $2.00 per Share (the "Exercise Price"). The Warrants shall expire on
October 31, 2001 (the "Expiration Date"). Payment shall be made in lawful money
of the United States of America by certified check payable to the Company at its
principal office at 2 Sutton Road, Webster, MA 01570. As hereinafter provided,
the Exercise Price and number of Shares purchasable upon the exercise of the
Warrants may be subject to modification or adjustment upon the happening of
certain events.
(B) This Warrant Certificate is exercisable at any time on or after
the Initial Exercise Date in whole or in part by the Holder in person or by
attorney duly authorized in writing at the principal office of the Company.
(C) The Warrants shall be redeemable, at the option of the Company, at
a price of $.05 per Warrant, upon not less than thirty (30) days' written notice
to the Holder at such time as (i) the Common Stock of
the Company trades for at least $3.00 on each of 3 consecutive trading days on
any national securities exchange on which the Common Stock may be listed or in
the over the counter market or OTC Bulletin Board, and (ii) the shares issuable
upon exercise of the Warrants are registered pursuant to an effective
registration statement under the Securities Act of 1933, as amended (hereinafter
the "Act").
2. EXCHANGE, FRACTIONAL SHARES, TRANSFER.
(A) Upon surrender to the Company, this Warrant Certificate may be
exchanged for another Warrant Certificate or Warrant Certificates evidencing a
like aggregate number of Warrants. If this Warrant Certificate shall be
exercised in part, the Holder shall be entitled to receive upon surrender hereof
another Warrant Certificate or Warrant Certificates evidencing the number of
Warrants not exercised;
(B) Anything herein to the contrary notwithstanding, in no event shall
the Company be obligated to issue Warrant Certificates evidencing other than a
whole number of Warrants or issue certificates evidencing other than a whole
number of Shares upon the exercise of this Warrant Certificate; PROVIDED,
HOWEVER, that the Company shall pay with respect to any such fraction of a Share
an amount of cash based upon the current public market value (or book value, if
there shall be no public market value) for Shares purchasable upon exercise
hereof. Market price for the purpose of this Section 2 shall mean the last
reported sale price on the American Stock Exchange or such primary exchange on
which the Common Stock is traded.
(C) The Company may deem and treat the person in whose name this
Warrant Certificate is registered as the absolute true and lawful owner hereof
for all purposes whatsoever; and
(D) This Warrant Certificate may not be transferred except in
compliance with the provisions of the Act or applicable state securities laws
and in accordance with the provisions of Paragraph 8 hereof.
3. RIGHTS OF A HOLDER. No Holder shall be deemed to be the Holder of Common
Stock or any other securities of the Company that may at any time be issuable on
the exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder any of the rights of a shareholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof or to give or withhold consent
to any corporate action (whether upon any reorganization, issuance of stock,
reclassification or conversion of stock, change of par value, consolidation,
merger, conveyance, or otherwise) or to receive notice of meetings or to receive
dividends or subscription rights or otherwise until a Warrant shall have been
exercised and the Common Stock purchasable upon the exercise thereof shall have
become issuable.
4. REGISTRATION OF TRANSFER. The Company shall maintain books for the
transfer and registration of Warrants. Upon the transfer of any Warrants in
accordance with the provisions of Section 2(D) hereof, (a "Permitted Transfer"),
the Company shall issue and register the Warrants in the names of the new
Holders. The Warrants shall be signed manually by the Chairman, Chief Executive
Officer, President or any Vice President and the Secretary or Assistant
Secretary of the Company. The Company shall transfer, from time to time, any
outstanding Warrants upon the books to be maintained by the Company for such
purpose upon surrender thereof for transfer properly endorsed or accompanied by
appropriate instructions for transfer. Upon any Permitted Transfer, a new
Warrant Certificate shall be issued to the transferee and the surrendered
Warrants shall be cancelled by the Company. Warrants may be exchanged at the
option of the Holder, when surrendered at the office of the Company, for another
Warrant, or other Warrants of different denominations, of like tenor and
representing in the aggregate the right to purchase a like number of Shares.
Subject to the terms of this Warrant Certificate, upon such surrender and
payment of the purchase price at any time after the Initial Exercise Date, the
Company shall issue and deliver with all reasonable dispatch to or upon the
written order of the Holder of such Warrants and in such name or names as such
Holder may designate, a certificate or certificates for the number of full
Shares so purchased upon the exercise of such Warrants. Such certificate or
certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become the Holder of record of such
Shares as of the date of the surrender of such Warrants and payment of the
purchase price; PROVIDED, HOWEVER, that if, at the date of surrender and
payment, the transfer books of the Shares shall be closed, the certificates for
the Shares shall be issuable as of the date on which such books shall be opened
and until such date the Company shall be under no duty to deliver any
certificate for such Shares; PROVIDED, FURTHER, HOWEVER, that such transfer
books, unless otherwise required by law or by applicable rule of any national
securities exchange, shall not be closed at any one time for a period longer
than 20 days. The rights of purchase represented by the Warrants shall be
exercisable, at the election of the Holders, either as an entirety or from time
to time for only part of the Shares at any time on or after the Initial Exercise
Date.
5. STAMP TAX. The Company will pay any documentary stamp taxes attributable
to the initial issuance of the Shares issuable upon the exercise of the
Warrants; PROVIDED, HOWEVER, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of any transfer involved in the
issuance or delivery of any certificates for Shares in a name other than that of
the Holder in respect of which such Shares are issued, and in such case the
Company shall not be required to issue or deliver any certificate for Shares or
any Warrant until the person requesting the same has paid to the Company the
amount of such tax or has established to the Company's satisfaction that such
tax has been paid.
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6. LOST, STOLEN OR MUTILATED CERTIFICATES. In case this Warrant Certificate
shall be mutilated, lost, stolen or destroyed, the Company may, in its
discretion, issue and deliver in exchange and substitution for and upon
cancellation of the mutilated Warrant Certificate, or in lieu of and
substitution for the lost, stolen or destroyed Warrant Certificate, a new
Warrant Certificate of like tenor representing an equivalent right or interest,
but only upon receipt of evidence satisfactory to the Company of such loss,
theft or destruction and an indemnity, if requested, also satisfactory to it.
7. RESERVED SHARES. The Company warrants that there have been reserved, and
covenants that at all times in the future it shall keep reserved, out of the
authorized and unissued Common Stock, a number of Shares sufficient to provide
for the exercise of the rights of purchase represented by this Warrant
Certificate. The Company agrees that all Shares issuable upon exercise of the
Warrants shall be, at the time of delivery of the certificates for such Shares,
validly issued and outstanding, fully paid and non-assessable and that the
issuance of such Shares will not give rise to preemptive rights in favor of
existing stockholders.
8. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933.
(A) The Holder of this Warrant Certificate, each transferee hereof and
any Holder and transferee of any Shares, by his acceptance thereof, agrees that
(a) no public distribution of Warrants or Shares will be made in violation of
the Act, and (b) during such period as the delivery of a prospectus with respect
to Warrants or Shares may be required by the Act, no public distribution of
Warrants or Shares will be made in a manner or on terms different from those set
forth in, or without delivery of, a prospectus then meeting the requirements of
Section 10 of the Act and in compliance with applicable state securities laws.
The Holder of this Warrant Certificate and each transferee hereof further agrees
that if any distribution of any of the Warrants or Shares is proposed to be made
by them otherwise than by delivery of a prospectus meeting the requirements of
Section 10 of the Act, such action shall be taken only after submission to the
Company of an opinion of counsel, reasonably satisfactory in form and substance
to the Company's counsel, to the effect that the proposed distribution will not
be in violation of the Act or of applicable state law. Furthermore, it shall be
a condition to the transfer of the Warrants that any transferee thereof deliver
to the Company his written agreement to accept and be bound by all of the terms
and conditions contained in this Warrant Certificate.
(B) This Warrant or the Shares or any other security issued or
issuable upon exercise of this Warrant may not be sold or otherwise disposed of
except as follows:
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(1) To a person who, in the opinion of counsel for the Holder
reasonably acceptable to the Company, is a person to whom this Warrant or Shares
may legally be transferred without registration and without the delivery of a
current prospectus under the Act with respect thereto and then only against
receipt of an agreement of such person to comply with the provisions of this
Section (1) with respect to any resale or other disposition of such securities
which agreement shall be satisfactory in form and substance to the Company and
its counsel; provided that the foregoing shall not apply to any such Warrant,
Shares or other security as to which such Holder shall have received an opinion
letter from counsel to the Company as to the exemption thereof from the
registration under the Act pursuant to Rule 144(k) under the Act; or
(2) To any person upon delivery of a prospectus then meeting the
requirements of the Act relating to such securities and the offering thereof for
such sale or disposition.
(C) Each certificate for Shares issued upon exercise of this Warrant
shall bear a legend relating to the non-registered status of such Shares under
the Act, unless at the time of exercise of this Warrant such Shares are subject
to a currently effective registration statement under the Act.
9. ADJUSTMENTS.
(A) In the event of a reorganization, recapitalization,
reclassification, stock split or exchange, stock dividend, combination of
shares, merger or consolidation in which the Company is the continuing
corporation or any other similar change in Common Stock of the Company, the
Board of Directors may, in its sole discretion, make such equitable,
proportionate adjustment, if any, as it deems appropriate in the number of
Shares covered by this Warrant Certificate and in the exercise price hereunder,
in order to preserve the Holder's proportionate interest in the Company and to
maintain the aggregate exercise price.
(B) In the event that the Company shall, at any time prior to the
exercise of this Warrant, (a) declare or pay to holders of Common Stock a
dividend payable in any security of the Company other than Common Stock or
securities convertible into common stock; (b) transfer its property as an
entirety or substantially as an entirety to any other company; (c) make any
distribution of its assets to holders of its Common Stock as a liquidation or
partial liquidation dividend or by way of return of capital; or (d) undergo a
merger or consolidation in which the Company is not the continuing corporation;
then, upon the subsequent exercise of this Warrant, the Holder shall receive, in
addition to or in substitution for the shares of Common Stock to which it would
otherwise be entitled upon such exercise, such additional securities of the
Company, or such shares of the securities or property of the Company resulting
from such transfer, or such assets of the Company, or such shares of the
securities or property of the continuing corporation in the
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event of such merger or consolidation, which it would have been entitled to
receive had it exercised this Warrant prior to the happening of any of the
foregoing events.
10. MISCELLANEOUS.
(A) LAW TO GOVERN. This Warrant shall be governed by and construed in
accordance with the substantive laws of the State of Massachusetts, without
giving effect to conflict of laws principles.
(B) ENTIRE AGREEMENT. This Warrant Certificate constitutes and
expresses the entire understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements and understandings, inducements or conditions whether express or
implied, oral or written. Neither this Warrant Certificate nor any portion or
provision hereof may be changed, waived or amended orally or in any manner other
than by an agreement in writing signed by the Holder and the Company.
(C) NOTICES. Except as otherwise provided in this Warrant Certificate,
all notices, requests, demands and other communications required or permitted
under this Warrant Certificate or by law shall be in writing and shall be deemed
to have been duly given, made and received only when delivered against receipt
or when deposited in the United States mails, certified or registered mail,
return receipt requested, postage prepaid, addressed as follows:
Company: Teletrak Environmental Systems, Inc.
2 Sutton Avenue
Webster, MA 01570
Attn: President
Holder: At the address shown for the Holder in the
registration book maintained by the Company.
(D) SEVERABILITY. If any provision of this Warrant Certificate is
prohibited by or is unlawful or unenforceable under any applicable law of any
jurisdiction, such provision shall, as to such jurisdiction be in effect to the
extent of such prohibition without invalidating the remaining provisions hereof;
provided, however, that any such prohibition in any jurisdiction shall not
invalidate such provision in any other jurisdiction; and provided, further that
where the provisions of any such applicable law may be waived, that they hereby
are waived by the Company and the Holder to the full extent permitted by law and
to the end that this Warrant instrument shall be deemed to be a valid and
binding agreement in accordance with its terms.
IN WITNESS WHEREOF, Teletrak Environmental Systems, Inc. has caused this
Warrant Certificate to be signed by its duly authorized officers as of the
th day of , 1998.
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TELETRAK ENVIRONMENTAL SYSTEMS, INC.
By:
------------------
Name: Gerd E. Reinig
Title: President
Attest:
Secretary
PURCHASE FORM
To: Teletak Environmental Systems, Inc.
,
The undersigned hereby irrevocably elects to exercise the attached
Warrant Certificate, Certificate No. TES- , to the extent of Shares
of Common Stock, $.0l par value per share of Teletrak Environmental Systems,
INC., and hereby makes payment of $ in payment of the aggregate
exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name:
(Please typewrite or print in block letters)
Address:
By:
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