EXHIBIT 4.8
THE HOLDER OF THIS WARRANT, BY ITS ACCEPTANCE HEREOF,
AGREES NOT TO SELL, TRANSFER OR ASSIGN
THIS WARRANT EXCEPT AS XXXXXX PROVIDED.
VOID AFTER 5:00 P.M. EASTERN TIME, NOVEMBER __, 2007
WARRANT
FOR THE PURCHASE OF
__________ SHARES OF COMMON STOCK
OF
METALICO, INC.
1. WARRANT.
THIS CERTIFIES THAT, in consideration of $10.00 and other good and
valuable consideration, duly paid by or on behalf of ________________________
("Holder"), as owner of this Warrant, to Metalico, Inc. (the "Company"), Holder
is entitled, at or before 5:00 p.m., Eastern Time November__, 2007 (the
"Expiration Date"), but not thereafter, to subscribe for, purchase and receive,
in whole or in part, up to _____________________ (_________) shares of Common
Stock of the Company ("Common Stock"). If the Expiration Date is a day on which
banking institutions are authorized by law to close, then this Warrant may be
exercised at or before 5:00 p.m. Eastern Time on the next succeeding day which
is not such a day in accordance with the terms herein. During the period ending
on the Expiration Date, the Company agrees not to take any action that would
terminate the Warrant. This Warrant is initially exercisable at $4.00 per share
of Common Stock purchased; provided, however, that upon the occurrence of any of
the events specified in Section 6 hereof, the rights granted by this Warrant,
including the exercise price and the number of shares of Common Stock to be
received upon such exercise, shall be adjusted as therein specified. The term
"Exercise Price" shall mean the initial exercise price or the adjusted exercise
price, depending on the context, of a share of Common Stock. The term
"Securities" shall mean the shares of Common Stock issuable upon exercise of
this Warrant.
2. EXERCISE.
2.1 Exercise Form. In order to exercise this Warrant, the exercise
form attached hereto must be duly executed and completed and delivered to the
Company, together with this Warrant and payment of the Exercise Price for the
Securities being purchased. If the subscription rights represented hereby shall
not be exercised at or before 5:00 p.m., Eastern Time, on the Expiration Date,
this Warrant shall become and be void without further force or effect, and all
rights represented hereby shall cease and expire.
2.2 Legend. Each certificate for Securities purchased under this
Warrant shall bear a legend as follows, unless such Securities have been
registered under the Securities Act of 1933, as amended (the "Act"):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR
APPLICABLE STATE LAW. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD
OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE ACT AND APPLICABLE STATE LAW."
2.3 Conversion Right.
2.3.1 Determination of Amount. In lieu of the payment of
the Exercise Price in cash, the Holder shall have the right (but not the
obligation) to convert this Warrant, in whole or in part, into Common Stock (the
"Conversion Right"), as follows: upon exercise of the Conversion Right, the
Company shall deliver to the Holder (without payment by the Holder of any of the
Exercise Price) that number of shares of Common Stock equal to the quotient
obtained by dividing (x) the "Value" (as defined below) of the portion of the
Warrant being converted at the time the Conversion Right is exercised by (y) the
Market Price. The "Value" of the portion of the Warrant being converted shall
equal the remainder derived from subtracting (a) the Exercise Price multiplied
by the number of shares of Common Stock being converted from (b) the Market
Price of the Common Stock multiplied by the number of shares of Common Stock
being converted. As used herein, the term "Market Price" at any date shall be
deemed to be the last reported sale price of the Common Stock on such date, or,
in case no such reported sale takes place on such day, the average of the last
reported sale prices for the immediately preceding three trading days, in either
case as officially reported by the principal securities exchange on which the
Common Stock is listed or admitted to trading, or, if the Common Stock is not
listed or admitted to trading on any national securities exchange or if any such
exchange on which the Common Stock is listed is not its principal trading
market, the last reported sale price as furnished by the National Association of
Securities Dealers, Inc. ("NASD") through the Nasdaq National Market or SmallCap
Market, or, if applicable, the OTC Bulletin Board, or if the Common Stock is not
listed or admitted to trading on any of the foregoing markets, or similar
organization, as determined in good faith by resolution of the Board of
Directors of the Company, based on the best information available to it.
2.3.2 Exercise of Conversion Right. The Conversion Right
may be exercised by the Holder on any business day on or after the Warrant is
exercisable and not later than the Expiration Date by delivering the Warrant
with a duly executed exercise form attached hereto with the conversion section
completed to the Company, exercising the Conversion Right and specifying the
total number of shares of Common Stock the Holder will purchase pursuant to such
conversion.
3. TRANSFER.
3.1 General Restrictions. The Holder of this Warrant, by its
acceptance hereof, agrees that it will not sell, transfer or assign or
hypothecate this Warrant to anyone except upon
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compliance with, or pursuant to exemptions from, applicable securities laws. In
order to make any permitted assignment, the Holder must deliver to the Company
the assignment form attached hereto duly executed and completed, together with
this Warrant and payment of all transfer taxes, if any, payable in connection
therewith. Upon receipt of the foregoing and satisfaction of the requirements
set forth in Section 3.2, the Company shall immediately transfer this Warrant on
the books of the Company and shall execute and deliver a new Warrant or Warrants
of like tenor to the appropriate assignee(s) expressly evidencing the right to
purchase the aggregate number of shares of Common Stock purchasable hereunder or
such portion of such number as shall be contemplated by such assignment.
3.2 Restrictions Imposed by the Securities Act. This Warrant and
the Securities underlying this Warrant shall not be transferred unless and until
(i) the Company has received the opinion of counsel for the Holder that such
securities may be sold pursuant to an exemption from registration under the Act,
and applicable state law, the availability of which is established to the
reasonable satisfaction of the Company, or (ii) a registration statement
relating to such Securities has been filed by the Company and declared effective
by the Securities and Exchange Commission (the "Commission") and is in
compliance with applicable state law.
4. NEW WARRANTS TO BE ISSUED.
4.1 Partial Exercise or Transfer. Subject to the restrictions in
Section 3 hereof, this Warrant may be exercised or assigned in whole or in part.
In the event of the exercise or assignment hereof in part only, upon surrender
of this Warrant for cancellation, together with the duly executed exercise or
assignment form and funds (or conversion equivalent) sufficient to pay any
Exercise Price and/or transfer tax, the Company shall, subject to the
restrictions in Section 3 hereof, cause to be delivered to the Holder without
charge a new Warrant of like tenor to this Warrant in the name of the Holder
evidencing the right of the Holder to purchase the aggregate number of shares of
Common Stock and Warrants purchasable hereunder as to which this Warrant has not
been exercised or assigned.
4.2 Lost Certificate. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
and of reasonably satisfactory indemnification, the Company shall execute and
deliver a new Warrant of like tenor and date. Any such new Warrant executed and
delivered as a result of such loss, theft, mutilation or destruction shall
constitute a substitute contractual obligation on the part of the Company.
5. REGISTRATION RIGHTS.
5.1 "Piggy-Back" Registration.
5.1.1 Grant of Right. The Holders of this Warrant shall
have the right on or before the Expiration Date to include all or any part of
the shares of Common Stock underlying this Warrant (the "Registrable
Securities") as part of any registration of securities filed by the Company
(other than in connection with a transaction contemplated by Rule 145(a)
promulgated under the Act or pursuant to Form S-8 or any equivalent form);
provided, however, that if, in the written opinion of the Company's managing
underwriter or underwriters, if any, for such
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offering (the "Underwriter"), the inclusion of the Registrable Securities, when
added to the securities being registered by the Company or the selling
stockholder(s), will exceed the maximum amount of the Company's securities which
can be marketed (i) at a price reasonably related to their then current market
value, or (ii) without materially and adversely affecting the entire offering,
the Holder shall agree to the following if and as requested by such managing
underwriter or underwriters; (a) to withdraw the Registrable Securities from
inclusion on the registration; (b) to include the Registrable Securities on the
registration, but not to sell any Registrable Securities, without the consent of
the managing underwriter, for a period of 180 days from the effective date of
the registration or (c) to reduce the amount of Registrable Securities to be
included in such offering to the amount recommended by such managing underwriter
or underwriters; provided that if securities are being offered for the account
of other persons or entities as well as Company (and the underwriters), such
reduction shall not represent a greater fraction of the number of Registrable
Securities requested to be registered by Holder than the fraction of similar
reductions imposed on such other persons or entities over the amount of
securities requested to be registered by such holders; and provided further that
Company may withdraw a registration statement at any time before it is declared
effective by the Commission. Notwithstanding the foregoing, if the shares of
Common Stock underlying this Warrant are freely saleable, without restriction,
under an exemption from the registration requirements of the Act at the time of
filing of the registration statement, the Company shall have no obligation under
this Section 5 to register such shares under such registration statement.
5.1.2 Terms. The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, including any filing fees
payable to the NASD or any exchange, but the Holders shall pay any and all
underwriting commissions and the expenses of any legal counsel selected by the
Holders to represent them in connection with the sale of the Registrable
Securities. In the event of such a proposed registration, the Company shall
furnish the then Holders of outstanding Registrable Securities with not less
than thirty days written notice prior to the proposed date of filing of such
registration statement. Such notice to the Holders shall continue to be given
for each registration statement filed by the Company until such time as all of
the Registrable Securities have been sold by the Holder. The holders of
Registrable Securities shall exercise the "piggy-back" rights provided for
herein by giving written notice, within twenty days of the receipt of the
Company's notice of its intention to file a registration statement. The Company
shall cause any registration statement filed pursuant to the above "piggy-back"
rights to remain effective until all Registrable Securities thereunder have been
sold, or are freely saleable, without restriction, under an exemption from the
registration requirements.
5.2 General Terms.
5.2.1 Indemnification.
(a) Subject to clauses (b)-(d) of this Section
5.2.1, the Company shall indemnify the Holder(s) of the Registrable Securities
to be sold pursuant to any registration statement hereunder and any underwriter
or person deemed to be an underwriter under the Act and each person, if any, who
controls such Holders or underwriters or persons deemed to be underwriters
within the meaning of Section 15 of the Act or Section 20(a) of the Securities
Page 4
Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim,
damage, expense or liability (including all reasonable attorneys' fees and other
expenses reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which any of them may become subject under the Act, the
Exchange Act or otherwise, arising from such registration statement, other than
arising from the willful misconduct, bad faith or gross negligence of the party
seeking indemnification. Subject to clauses (b)-(d) of this Section 5.2.1, the
Holder(s) of the Registrable Securities to be sold pursuant to such registration
statement, and their successors and assigns, shall severally, and not jointly,
indemnify the Company, against all loss, claim, damage, expense or liability
(including all reasonable attorneys' fees and other expenses reasonably incurred
in investigating, preparing or defending against any claim whatsoever) to which
the Company may become subject under the Act, the Exchange Act or otherwise,
arising from information furnished by or on behalf of such Holders, in writing,
for specific inclusion in such registration statement.
(b) If any action is brought against a party
hereto (an "Indemnified Party") in respect of which indemnity may be sought
against the other party (an "Indemnifying Party"), such Indemnified Party shall
promptly notify the Indemnifying Party in writing of the institution of such
action and the Indemnifying Party shall assume the defense of such action,
including the employment and fees of counsel reasonably satisfactory to the
Indemnified Party. Such Indemnified Party shall have the right to employ its or
their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the employment of
such counsel shall have been authorized in writing by the Indemnifying Party in
connection with the defense of such action, or (ii) the Indemnifying Party shall
not have employed counsel to defend such action, or (iii) such Indemnified Party
shall have been advised by counsel that there may be one or more legal defenses
available to it which may result in a conflict between the Indemnified Party and
the Indemnifying Party (in which case the Indemnifying Party shall not have the
right to direct the defense of such action on behalf of the Indemnified Party),
in any of which events, the reasonable fees and expenses of not more than one
additional firm of attorneys designated in writing by the Indemnified Party
shall be borne by the Indemnifying Party. Notwithstanding anything to the
contrary contained herein, if the Indemnified Party shall assume the defense of
such action as provided above, the Indemnifying Party shall not be liable for
any settlement of any such action effected without its written consent.
(c) If the indemnification or reimbursement
provided for hereunder is finally judicially determined by a court of competent
jurisdiction to be unavailable to an Indemnified Party (other than as a
consequence of a final judicial determination of willful misconduct, bad faith
or gross negligence of such Indemnified Party), then the Indemnifying Party
agrees, in lieu of indemnifying such Indemnified Party, to contribute to the
amount paid or payable by such Indemnified Party (i) in such proportion as is
appropriate to reflect the relative benefits received, or sought to be received,
by the Indemnifying Party on the one hand and by such Indemnified Party on the
other or (ii) if (but only if) the allocation provided in clause (i) of this
sentence is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in such clause
(i) but also the relative fault of the Indemnifying Party and of such
Indemnified Party; provided, however, that in no event shall the aggregate
amount contributed by a Holder exceed the cumulative profit, if any, earned by
such
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Holder as a result of each sale by it of the Warrants or as a result of each
exercise by it of the Warrants and the sale by it of the underlying shares of
Common Stock.
(d) The rights accorded to Indemnified Parties
hereunder shall be in addition to any rights that any Indemnified Party may have
at common law, by separate agreement or otherwise.
5.2.2 Exercise of Warrants. Nothing contained in this
Warrant shall be construed as requiring the Holder(s) to exercise their Warrants
prior to or after the initial filing of any registration statement or the
effectiveness thereof.
5.2.3 Documents Delivered to Holders. If, and only if, the
offering, with respect to which the registration statement referred to in
Section 5.1.1 is being filed, is underwritten, the Company shall furnish to each
Holder participating in any of the foregoing offerings and to each underwriter
of any such offering, a signed counterpart, addressed to such Holder or
Underwriter, of (i) an opinion of counsel to the Company, dated the effective
date of such registration statement and an opinion dated the date of the closing
under the underwriting agreement related hereto, and (ii) a "cold comfort"
letter dated the effective date of such registration statement, and (iii) a
letter dated the date of the closing under the underwriting agreement signed by
the independent public accountants who have issued a report on the Company's
financial statements included in such registration statement, in each case
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten public
offerings of securities. The Company shall also deliver promptly to each Holder
participating in the offering requesting the correspondence and memoranda
described below and to the managing underwriter copies of all correspondence
between the Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its staff with respect
to the registration statement and permit each Holder and underwriter to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the NASD. Such
investigation shall include access to books, records and properties and
opportunities to discuss the business of the Company with its officers and
independent auditors, all to such reasonable extent and at such reasonable times
and as often as any such Holder shall reasonably request. Notwithstanding
anything in the foregoing to the contrary, the Company shall not be required to
deliver, make available for inspection, or answer any questions concerning,
matters that are protected from disclosure by the attorney-client or other
judicially-recognized privilege.
5.2.4 Documents Delivered by Xxxxxx. The Company may
furnish each of the Holders participating in any of the foregoing offerings with
a questionnaire requesting information customarily sought of selling security
holders, and each Holder shall promptly furnish such questionnaire, accurately
completed and executed, to the Company.
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6. ADJUSTMENTS.
6.1 Adjustments to Exercise Price and Number of Securities. The
Exercise Price and the number of shares of Common Stock underlying this Warrant
shall be subject to adjustment from time to time as hereinafter set forth:
6.1.1 Stock Dividends - Recapitalization, Reclassification,
Split-Ups. If, after the date hereof, and subject to the provisions of Section
6.2 below, the number of outstanding shares of Common Stock is increased by a
stock dividend on the Common Stock payable in shares of Common Stock or by a
split-up, recapitalization or reclassification of shares of Common Stock or
other similar event, then, on the effective date thereof, the number of shares
of Common Stock issuable on exercise of this Warrant shall be increased in
proportion to such increase in outstanding shares.
6.1.2 Aggregation of Shares. If after the date hereof, and
subject to the provisions of Section 6.2, the number of outstanding shares of
Common Stock is decreased by a consolidation, combination or reclassification of
shares of Common Stock or other similar event, then, upon the effective date
thereof, the number of shares of Common Stock issuable on exercise of this
Warrant shall be decreased in proportion to such decrease in outstanding shares.
6.1.3 Adjustments in Exercise Price. Whenever the number of
shares of Common Stock purchasable upon the exercise of this Warrant is
adjusted, as provided in this Section 6.1, the Exercise Price shall be adjusted
(to the nearest cent) by multiplying such Exercise Price immediately prior to
such adjustment by a fraction (x) the numerator of which shall be the number of
shares of Common Stock purchasable upon the exercise of this Warrant immediately
prior to such adjustment, and (y) the denominator of which shall be the number
of shares of Common Stock so purchasable immediately thereafter.
6.1.4 Replacement of Securities Upon Reorganization, etc.
In case of any reclassification or reorganization of the outstanding shares of
Common Stock other than a change covered by Section 6.1.1 hereof or which solely
affects the par value of such shares of Common Stock, or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the property of the Company as an
entirety or substantially as an entirety in connection with which the Company is
dissolved, the Holder of this Warrant shall have the right thereafter (until the
expiration of the right of exercise of this Warrant) to receive upon the
exercise hereof, for the same aggregate Exercise Price payable hereunder
immediately prior to such event, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or other transfer, by a Holder of the number of shares of Common Stock
of the Company obtainable upon exercise of this Warrant immediately prior to
such event; and if any reclassification also results in a change in shares of
Common Stock covered by Sections 6.1.1 or 6.1.2, then such adjustment shall be
made pursuant to Sections 6.1.1, 6.1.2, 6.1.3 and this Section 6.1.4. The
provisions of this Section 6.1.4 shall similarly apply to successive
reclassifications reorganizations, mergers or consolidations, sales or other
transfers.
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6.1.5 Changes in Form of Warrant. This form of Warrant need
not be changed because of any change pursuant to this Section, and Warrants
issued after such change may state the same Exercise Price and the same number
of shares of Common Stock and Warrants as are stated in the Warrants initially
issued pursuant to this Agreement. The acceptance by any Holder of the issuance
of new Warrants reflecting a required or permissive change shall not be deemed
to waive any rights to a prior adjustment or the computation thereof.
6.2 Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of this Warrant, nor shall it be required to issue scrip or
pay cash in lieu of any fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up to
the nearest whole number of shares of Common Stock or other securities,
properties or rights.
7. RESERVATION AND LISTING. The Company shall at all times reserve and
keep available out of its authorized shares of Common Stock, solely for the
purchase of issuance upon exercise of this Warrant, such number of shares of
Common Stock or other securities, properties or rights as shall be issuable upon
the exercise thereof. The Company covenants and agrees that, upon exercise of
the Warrants and payment of the Exercise Price therefor, all shares of Common
Stock and other securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive rights of
any stockholder. As long as the Warrants shall be outstanding, the Company shall
use its best efforts to cause all shares of Common Stock issuable upon exercise
of the Warrants to be listed (subject to official notice of issuance) on all
securities exchanges (or, if applicable on NASDAQ) on which the Common Stock is
then listed and/or quoted.
8. CERTAIN NOTICE REQUIREMENTS.
8.1 Holder's Right to Receive Notice. Nothing herein shall be
construed as conferring upon the Holders the right to vote or consent or to
receive notice as a stockholder for the election of directors or any other
matter, or as having any rights whatsoever as a stockholder of the Company. If,
however, at any time prior to the expiration of the Warrants and their exercise,
any of the events described in Section 8.2 shall occur, then, in one or more of
said events, the Company shall give written notice of such event at least
fifteen days prior to the date fixed as a record date or the date of closing the
transfer books for the determination of the stockholders entitled to such
dividend, distribution, conversion or exchange of securities or subscription
rights, or entitled to vote on such proposed dissolution, liquidation, winding
up or sale. Such notice shall specify such record date or the date of the
closing of the transfer books, as the case may be.
8.2 Events Requiring Notice. The Company shall be required to give
the notice described in this Section 8 upon one or more of the following events:
(i) if the Company shall take a record of the holders of its shares of Common
Stock for the purpose of entitling them to receive a dividend or distribution,
or (ii) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the Company, or any option, right
or warrant
Page 8
to subscribe therefor, or (iii) a merger or reorganization in which the Company
is not the surviving party, or (iv) a dissolution, liquidation or winding up of
the Company (other than in connection with a consolidation or merger) or a sale
of all or substantially all of its property, assets and business shall be
proposed.
8.3 Notice of Change in Exercise Price. The Company shall,
promptly after an event requiring a change in the Exercise Price pursuant to
Section 6 hereof, send notice to the Holders of such event and change ("Price
Notice"). The Price Notice shall describe the event causing the change and the
method of calculating same and shall be certified as being true and accurate by
the Company's President and Chief Financial Officer.
8.4 Transmittal of Notice. All notices, requests, consents and
other communications under this Warrant shall be in writing and shall be deemed
to have been duly made on the date of delivery if delivered personally or sent
by overnight courier, with acknowledgment of receipt by the party to which
notice is given, or on the fifth day after mailing if mailed to the party to
whom notice is to be given, by registered or certified mail, return receipt
requested, postage prepaid and properly addressed as follows: (i) if to the
Holder of this Warrant, to the address of such Xxxxxx as shown on the books of
the Company, or (ii) if to the Company, to its principal executive office.
9. MISCELLANEOUS.
9.1 Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this Warrant.
9.2 Entire Agreement. This Warrant (together with the other
agreements and documents being delivered pursuant to or in connection with this
Warrant) constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof, and supersedes all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
9.3 Binding Effect. This Warrant shall inure solely to the benefit
of and shall be binding upon, the Holder and the Company and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Warrant or any provisions herein contained.
9.4 Governing Law; Submission to Jurisdiction. This Warrant shall
be governed by and construed and enforced in accordance with the law of the
State of New Jersey, without giving effect to conflict of laws. The Company and
each Holder hereby agree that any action, proceeding or claim against such party
arising out of, or relating in any way to this Warrant (a "Proceeding") shall be
brought and enforced in the courts of the State of New Jersey or the United
States District Court for the District of New Jersey Newark Division, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
Each party hereby waives any objection to the exclusive jurisdiction of such
courts over a Proceeding, whether based on
Page 9
grounds of venue, or inconvenient forum or otherwise. Each party agrees that any
process or summons to be served upon a party in connection with a Proceeding may
be served by transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to the party at the address set
forth in Section 8 hereof, as well as in any other manner permitted by law. Such
mailing shall be deemed personal service and shall be legal and binding upon the
party in the Proceeding. Each party agrees that the prevailing party(ies) in a
Proceeding shall be entitled to recover from the other party(ies) all of its
reasonable attorneys' fees and expenses relating to such Proceeding and/or
incurred in connection with the preparation therefor.
9.5 Waiver, Etc. The failure of the Company or the Holder to at
any time enforce any of the provisions of this Warrant shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Warrant or any provision hereof or the right of the Company or
any Holder to thereafter enforce each and every provision of this Warrant. No
waiver of any breach, non-compliance or non-fulfillment of any of the provisions
of this Warrant shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such
waiver is sought; and no waiver of any such breach, non-compliance or
non-fulfillment shall be construed or deemed to be a waiver of any other or
subsequent breach, non-compliance or non-fulfillment.
9.6 Amendments in Writing. This Warrant may not be amended or
modified except by means of a written instrument signed by the Company and each
Holder affected thereby.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer as of the ___ day of November 2004.
METALICO, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxx
President
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- Form to be used to exercise Warrant:
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-------------------------------------------
-------------------------------------------
Date: ,
--------------------------- --------
The undersigned hereby elects irrevocably to exercise the within
Warrant and to purchase ________________ shares of Common Stock of METALICO,
INC. and hereby makes payment of $____________ (at the rate of $4.00 per share
of Common Stock) in payment of the Exercise Price pursuant thereto. Please issue
the Common Stock as to which this Warrant is exercised in accordance with the
instructions given below.
or
The undersigned hereby elects irrevocably to convert its right to
purchase ________________ shares of Common Stock purchasable under the within
Warrant into ________________ shares of Common Stock of METALICO, INC. (based on
a "Market Price" of $________________ per share of Common Stock). Please issue
the Common Stock in accordance with the instructions given below.
-----------------------------------
Signature
-----------------------------------
Signature Guaranteed
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN WARRANT IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A
BANK, OTHER THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING
MEMBERSHIP ON A REGISTERED NATIONAL SECURITIES EXCHANGE.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name
-----------------------------------------------------------------------
(Print in Block Letters)
Address
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- Form to be used to assign Warrant:
ASSIGNMENT
(To be executed by the Holder to effect a transfer of the within Warrant):
FOR VALUE RECEIVED, __________________________________ does hereby
sell, assign and transfer unto _____________________________ the right to
purchase ______________ shares of Common Stock of METALICO, INC. (the "Company")
evidenced by the within Warrant and does hereby authorize the Company to
transfer such right on the books of the Company.
Dated:
---------------------------
------------------------------------
Signature
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN WARRANT IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A
BANK, OTHER THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING
MEMBERSHIP ON A REGISTERED NATIONAL SECURITIES EXCHANGE.
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