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EXHIBIT 1.4
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY
STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF ANY EFFECTIVE REGISTRATION STATEMENT AS TO SUCH
SECURITIES FILED UNDER THE ACT, OR AN EXEMPTION FROM REGISTRATION, AND
COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS. THE ISSUER MAY REQUIRE AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER HEREOF THAT SUCH REGISTRATION IS
NOT REQUIRED AND THAT SUCH LAWS ARE COMPLIED WITH.
VOID AFTER 3:30 P.M., EASTERN TIME, ON 2002
REPRESENTATIVE'S
WARRANT TO PURCHASE
COMMON STOCK AND REDEEMABLE WARRANTS
WESTSTAR ENVIRONMENTAL INC.
This is to Certify That, FOR VALUE RECEIVED, Westport Resources Investment
Services, Inc. (the "Holder") is entitled to purchase, subject to the provisions
of this Warrant, from Weststar Environmental Inc. ("Company"), a Florida
corporation, at any time on or after 1998, and not later than 3:30 p.m., Eastern
Time, on , 2002 ,100,000 shares of Common Stock and 100,000 Redeemable Warrants
of the Company ("Securities") exercisable at a purchase price for the Securities
which is 145% of the public offering price. The number of Securities to be
received upon the exercise of this Warrant and the price to be paid for the
Securities may be adjusted from time to time as hereinafter set forth. The
purchase price of a Security in effect at any time and as adjusted from time to
time is hereinafter sometimes referred to as the "Exercise Price." This Warrant
is or may be one of a series of Warrants identical in form issued by the Company
to purchase an aggregate of 100,000 shares of Common Stock and 100,000
Redeemable Warrants. The Securities, as adjusted from time to time, underlying
the Warrants are hereinafter sometimes referred to as "Warrant Securities". The
Securities issuable upon the exercise hereof are in all respects identical to
the securities being purchased by the Underwriter for resale to the public
pursuant to the terms and conditions of the Underwriting Agreement entered into
on this date between the Company and Holder.
(a) Exercise of Warrant. Subject to the provisions of Section (g) hereof, this
Warrant may be exercised in whole or in part at anytime or from time to time on
or after , 1998, but not later than 3:30 p.m., Eastern Time on , 2002, or if ,
2002 is a day on which banking institutions are authorized by law to close, then
on the next succeeding day which shall not be such a day, by presentation and
surrender hereof to the Company or at the office of its stock transfer agent, if
any, with the Purchase Form annexed hereto duly executed and accompanied by
payment of the Exercise Price for the number of shares of Common Stock or
Redeemable Warrants as specified in such Form, together with all federal and
state taxes applicable upon such exercise. The Company agrees to provide notice
to the Holder that any tender offer is being made for the Securities no later
than the day the Company becomes aware that any tender offer is being made for
the Securities. 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 right of the Holder to purchase the balance of the
securities purchasable hereunder along with any additional Redeemable Warrants
not exercised. Upon receipt by the Company of this Warrant at the office of the
Company or at the office of the Company's stock transfer agent, in proper form
for exercise and accompanied by the total Exercise Price, the Holder shall be
deemed to be the holder of record of the Securities issuable upon such exercise,
notwithstanding that the
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stock transfer books of the Company shall then be closed or that certificates
representing such Securities shall not then be actually delivered to the Holder.
(b) Reservation of Securities. The Company hereby agrees that at all
times there shall be reserved for issuance and/or delivery upon exercise of this
Warrant such number of Securities as shall be required for issuance or delivery
upon exercise of this Warrant. The Company covenants and agrees that, upon
exercise of the Warrants and payment of the Exercise Price therefor, all
Securities upon such exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any stockholder. As
long as the Warrants shall be outstanding, the Company shall use its best
efforts to cause all Securities issuable upon the exercise of the Warrants to be
listed (subject to official notice of issuance) on all securities exchanges on
which the common stock issued to the public in connection herewith may then be
listed and/or quoted on he American Stock Exchange or on NASDAQ Small Cap
Marketplace or any other exchange.
(c) Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the current market value of such fractional share, determined as
follows:
(1) If the Securities are listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange, the current value
shall be the last reported sale price of the common stock on such exchange 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
(2) If the Securities are not so listed or admitted to unlisted trading
privileges, the current value shall be the mean of the last reported bid and
asked prices reported by the National Association of Securities Dealers
Automated Quotation System (or, if not so quoted on NASDAQ or by the National
Quotation Bureau, Inc.) on the last business day prior to the date of the
exercise of this Warrant; or
(3) If the Securities are not so listed or admitted to unlisted trading
privileges and bid and asked prices are not so reported, the current value shall
be an amount, not less than book value, determined in such reasonable manner as
may be prescribed by the Board of Directors of the Company, such determination
to be final and binding on the Holder.
(d) Exchange, 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 thereof to purchase (under the same terms and conditions as provided by
this Warrant) in the aggregate the same number of Securities purchasable
hereunder. This Warrant may not be sold, transferred, assigned, or hypothecated
until after one year from the effective date of the registration statement
except that it may be (i) assigned in whole or in part to the officers of the
"Underwriter(s)", and (ii)transferred to any successor to the business of the
"Underwriter(s)." Any such assignment shall be made by 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 with funds sufficient to pay
any transfer tax; whereupon 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 which carry the same rights upon
presentation hereof at the office of the Company or at the office of its 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. The term "Warrant" as used herein includes any Warrants issued in
substitution for or replacement of this Warrant, or into which this Warrant may
be divided or exchanged. Upon receipt by the Company of evidence 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
will 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
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Company, whether or not the Warrant so lost, stolen, destroyed, or mutilated
shall be at any time enforceable by anyone.
(e) Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in the Warrant and
are not enforceable against the Company except to the extent set forth herein.
(f) Notices to Warrant Holders. So long as this Warrant shall be
outstanding and unexercised (i) if the Company shall pay any dividend exclusive
of a cash dividend, or make any distribution upon the common stock or (ii) if
the Company shall offer to the holders of common stock for subscription or
purchase by them any shares of stock of any class or any other rights, or (iii)
if any capital reorganization of the Company, reclassification of the capital
stock of the Company, consolidation or merger of the Company with or into
another corporation, sale, lease or transfer of all or substantially all of the
property and assets of the Company to another corporation, or voluntary or
involuntary dissolution, liquidation or winding up of the Company shall be
effected, then, in any such case, the Company shall cause to be delivered to the
Holder, at least ten (10) days prior to the date specified in (x) or (y) below,
as the case may be, a notice containing a brief description of the proposed
action and stating the date on which (x) a record is to be taken for the purpose
of such dividend, distribution or rights, or (y) such reclassification,
reorganization, consolidation, merger, conveyance, lease, dissolution,
liquidation or winding up is to take place and the date, if any, is to be fixed,
as of which the holders of common stock of record shall be entitled to exchange
their common stock for equivalent securities or other property deliverable upon
such reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up.
(g) Adjustment of Exercise Price and Number of Shares Deliverable.
(A)(i) Except as hereinafter provided, in the event the Company shall,
at any time or from time to time after the date hereof, issue any common stock
as a stock dividend to the holders of common stock, or subdivide or combine the
outstanding common stock into a greater or lesser number of shares (any such
issuance, subdivision or combination being herein call a "Change of Shares"),
then, and thereafter upon each further Change of Shares, the Exercise Price of
the common stock issuable upon the exercise of the Warrant and the Redeemable
Warrant in effect immediately prior to such Change of Shares shall be changed to
a price (including any applicable fraction of a cent to the nearest cent)
determined by dividing (i) the sum of (a) the total number of shares of Common
Stock outstanding immediately prior to such Change of Shares, multiplied by the
Exercise Price in effect immediately prior to such Change of Shares, and (b) the
consideration, if any, received by the Company upon such issuance, subdivision
or combination by (ii) the total number of shares of common stock outstanding
immediately after such Change of Shares; provided, however, that in no event
shall the Exercise Price be adjusted pursuant to this computation to an amount
in excess of the Exercise Price in effect immediately prior to such computation,
except in the case of a combination of outstanding common stock.
For the purposes of any adjustment to be made in accordance with this
Section (g) the following provisions shall be applicable:
(I) Common stock issuable by way of dividend or other distribution on
any capital stock of the Company shall be deemed to have been issued immediately
after the opening of business on the day following the record date for the
determination of shareholders entitled to receive such dividend or other
distribution and shall be deemed to have been issued without consideration.
(II) The number of shares of common stock at any one time outstanding
shall not be deemed to include the number of shares issuable (subject to
readjustment upon the actual issuance thereof) upon the exercise of options,
rights or warrants and upon the conversion or exchange of convertible or
exchangeable securities.
(ii) Upon each adjustment of the Exercise Price pursuant to this
Section (g), the number of shares of common stock purchasable upon the exercise
of each Warrant shall be the number derived by multiplying the number of shares
of common stock purchasable immediately prior to such adjustment by the Exercise
Price in effect prior to such adjustment and dividing the product so obtained by
the applicable adjusted Exercise Price.
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(B) In case of any reclassification or change of outstanding Securities
issuable upon exercise of the Warrants (other than a change in par value, or
from par value to no par value, or from no par value to par value or as a result
of a subdivision or combination), or in case of any consolidation or merger of
the Company with or into another corporation other than a merger with a
"Subsidiary" (which shall mean any corporation or corporations, as the case may
be, of which capital stock having ordinary power to elect a majority of the
Board of Directors of such corporation (regardless of whether or not at the time
capital stock of any other class or classes of such corporation shall have or
may have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned by the Company or by one or more Subsidiaries)
or by the Company and one or more Subsidiaries in which merger the Company is
the continuing corporation and which does not result in any reclassification or
change of the then outstanding shares of Common Stock or other capital stock
issuable upon exercise of the Warrants (other than a change in par value, or
from par value to no par value, or from no par value to par value or as a result
of subdivision or combination) or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, then, as a condition of such reclassification, change, consolidation,
merger, sale or conveyance, the Company, or such successor or purchasing
corporation, as the case may be, shall make lawful and adequate provision
whereby the Holder of each Warrant then outstanding shall have the right
thereafter to receive on exercise of such Warrant the kind and amount of
securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of
securities issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance and shall
forthwith file at the principal office of the Company a statement signed by its
President or a Vice President and by its Treasurer or an Assistant Treasurer or
its Secretary or an Assistant Secretary evidencing such provision. Such
provisions shall include provision for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in Section
(g)(A). The above provisions of this Section (g)(B) shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales or conveyances.
(C) Irrespective of any adjustments or changes in the Exercise Price or
the number of Securities purchasable upon exercise of the Warrants, the Warrant
Certificates theretofore and thereafter issued shall, unless the Company shall
exercise its option to issue new Warrant Certificates pursuant hereto, continue
to express the Exercise Price per share and the number of shares purchasable
thereunder as the Exercise Price per share and the number of shares purchasable
thereunder as expressed in the Warrant Certificates when the same were
originally issued.
(D) After each adjustment of the Exercise Price pursuant to this
Section (g), the Company will promptly prepare a certificate signed by the
Chairman or President, and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, of the Company setting forth: (i) the
Exercise Price as so adjusted, (ii) the number of Securities purchasable upon
exercise of each Warrant, after such adjustment, and (iii) a brief statement of
the facts accounting for such adjustment. The Company will promptly file such
certificate in the Company's minute books and cause a brief summary thereof to
be sent by ordinary first class mail to each Holder at his last address as it
shall appear on the registry books of the Company. No failure to mail such
notice nor any defect therein or in the mailing thereof shall affect the
validity thereof except as to the holder to whom the Company failed to mail such
notice, or except as to the holder whose notice was defective. The affidavit of
an officer or the Secretary or an Assistant Secretary of the Company that such
notice has been mailed shall, in the absence of fraud, be prima facie evidence
of the facts stated therein. The provisions of this subsection may be waived by
the parties.
(E) No adjustment of the Exercise Price shall be made as a result of or
in connection with the issuance of a stock dividend or the combination or
subdivision of the common stock if the amount of said adjustment shall be less
than $.10, provided, however, that in such case, any adjustment that would
otherwise be required then to be made shall be carried forward and shall be made
at the time of and together with the next subsequent adjustment that shall
amount, together with any adjustment so carried forward, to at least $.10. In
addition, Holders shall not be entitled to cash dividends paid by the Company
prior to the exercise of any Warrant or Warrants held by them.
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(F) In the event that the Company shall at any time prior to the
exercise of all Warrants declare a dividend consisting solely of shares of
Common Stock or otherwise distribute to its stockholders any assets, property,
rights, evidences of indebtedness, the Holders of the unexercised Warrants shall
thereafter be entitled, in addition to the Securities or other securities and
property receivable upon the exercise thereof, to receive, upon the exercise of
such Warrants, the same property, assets, rights, evidences of indebtedness,
that they would have been entitled to receive at the time of such dividend or
distribution as if the Warrants had been exercised immediately prior to such
dividend or distribution. At the time of any such dividend or distribution, the
Company shall make appropriate reserves to ensure the timely performance of the
provisions of this Section (g).
(G) Notwithstanding any other provision in this Agreement the Company
shall include such Underwriter's Warrants in the Registration Statement relating
to this offering and shall keep such Registration Statement current at least
until the expiration of the Underwriter's warrants or shall bear all of the
costs of a new registration statement in the event the Underwriter's Warrants
are to be exercised.
(h) Continuing Effect of Agreement. The Company's agreements with
respect to the Warrant Securities in this Warrant will continue in effect
regardless of the exercise or surrender of this Warrant.
(i) Notices. Any notices or certificates by the Company to the Holder
and by the Holder to the Company shall be deemed delivered if in writing and
delivered personally or sent by certified mail, to the Holder, addressed to him
or sent to, Westport Resources Investment Services, Inc., or, if the Holder has
designated, by notice in writing to the Company, any other address, to such
other address, and, if to the Company, addressed to Weststar Environmental Inc.,
0000 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000. The Company may
change its address by written notice to Westport Resources Investment Services,
Inc.
(j) Limited Transferability. This Warrant Certificate and the Warrant
may not be sold, transferred, assigned or hypothecated for a one-year period
after the effective date of the Registration Statement except to underwriters of
the Offering referred to in the Underwriting Agreement or to individuals who are
either partners or officers of such an underwriter or by will or by operation of
law. The Warrant may be divided or combined, upon request to the Company by the
Warrant holder, into a certificate or certificates evidencing the same aggregate
number of Warrants. The Warrant may not be offered, sold, transferred, pledged
or hypothecated in the absence of any effective registration statement as to
such Warrant filed under the Act, or an exemption from the requirement of such
registration, and compliance with the applicable federal and state securities
laws. The Company may require an opinion of counsel satisfactory to the Company
that such registration is not required and that such laws are complied with. The
Company may treat the registered holder of this Warrant as he or it appears on
the Company's book at any time as the Holder for all purposes. The Company shall
permit the Holder or his duly authorized attorney, upon written request during
ordinary business hours, to inspect and copy or make extracts from its books
showing the registered holders of Warrants.
(k) Transfer to Comply With the Securities Act of 1933. The Company may
cause the following legend, or one similar thereto, to be set forth on the
Warrants and on each certificate representing Warrant Securities, or any other
security issued or issuable upon exercise of this Warrant not theretofore
distributed to the public or sold to underwriters for distribution to the public
pursuant to Sections (h) or (i) hereof; unless counsel satisfactory to the
Company is of the opinion as to any such certificate that such legend, or one
similar thereto, is unnecessary:
"The warrants represented by this certificate are restricted securities
and may not be offered for sale, sold OR otherwise transferred unless an opinion
of counsel satisfactory to the Company is obtained stating that such offer,
sale or transfer is in compliance wrath state and federal securities law.
(l) Applicable Law. This Warrant shall be governed by, and construed in
accordance with, the laws of the State of Connecticut, without giving effect to
conflict of law principles.
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(m) Assignability. This Warrant may not be amended except in a writing signed by
each Holder and the Company.
(n) Survival of Indemnification Provisions. The indemnification provisions of
this Warrant shall survive until ____________, 2005
Weststar Environmental Inc.
By ________________________________
Xxxxxxx Xxxxx, President
Date: ________________________
Attest:
_______________________________
, Secretary
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PURCHASE FORM
Dated 19
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The undersigned hereby irrevocably elects to exercise the Warrant to the
extent of purchasing ______ Shares of Common Stock and/or ________ Redeemable
Warrants and hereby makes payment of $ in payment of the actual exercise
price thereof.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name
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(please typewrite or print in block letters)
Address
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Signature
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ASSIGNMENT FORM
FOR VALUE RECEIVED,
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hereby sells, assigns and transfers unto
Name
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(please typewrite or print in block letters)
Address
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the right to purchase common stock as represented by this Warrant to the extent
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.
Signature
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Dated: 19
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