EXHIBIT 4.6
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Date:
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NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY
IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES
COMMISSION OF
ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE
SECURITIES
ACT OF 1933,
AS AMENDED
(THE "SECURITIES
ACT"), AND,
ACCORDINGLY,
MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE
SECURITIES
ACT AND IN ACCORDANCE
WITH APPLICABLE STATE
SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT,
THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS
SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
To Purchase _____________ Shares of Common Stock of
ENVIRONMENTAL SERVICE PROFESSIONALS, INC.
THIS COMMON STOCK PURCHASE WARRANT (the "WARRANT") certifies that, for value
received,
_______________, or
its registered assigns (the "HOLDER"), is
entitled, upon the terms and subject to the conditions hereinafter
set forth, at
any time on or after the date hereof (the "INITIAL EXERCISE DATE") and on or
prior to the close of
business on the FIFTH
(5TH) anniversary
of the Initial
Exercise Date (the
"TERMINATION DATE") to
purchase up to _________ shares (the
"WARRANT SHARES") of
Common Stock,
par value $_______ per share (the
"COMMON
STOCK"), of ENVIRONMENTAL SERVICE PROFESSIONALS, INC., a Nevada
corporation (the
"COMPANY"). The
purchase price of one
share of Common Stock under this Warrant
shall be equal to the Exercise Price, as defined in Section
2(b).
SECTION 1.
DEFINITIONS.
Capitalized
terms used and not otherwise
defined herein shall
have the meanings
(i) set forth in that
certain Senior
Secured Note,
dated the date
hereof (the "NOTE"), from the Company to the
initial Holder and in
the principal amount
of $_________ and (ii) set forth in
Exhibit A hereto.
SECTION 2. EXERCISE.
a) EXERCISE OF WARRANT. Exercise of the purchase rights
represented by
this Warrant may be made, in whole or in part, at any time
or times on or after
the Initial Exercise
Date and on or before the Termination Date by delivery to
the Company of a duly
executed facsimile
copy of the Notice of
Exercise Form
annexed hereto
(or such other office or agency of the Company as it may
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designate by notice in writing to the registered Holder at the address of such
Holder appearing on the books of the Company); and, within five Trading Days
of
the date said Notice of Exercise is delivered to the Company,
the Company shall
have received payment
of the aggregate
Exercise Price of the shares thereby
purchased by wire
transfer or cashier's
check drawn on a
United States
bank.
Notwithstanding
anything herein
to the contrary, the Holder shall not be
required to physically
surrender this Warrant to the Company until
the Holder
has purchased all of the Warrant Shares available hereunder and the Warrant has
been exercised in full, in which case, the Holder shall surrender this Warrant
to the Company for cancellation within three Trading Days of the
date the final
Notice of Exercise is
delivered to the Company. Partial exercises of this
Warrant resulting
in purchases of a portion of the total number of Warrant
Shares available
hereunder shall have the effect of lowering
the outstanding
number of Warrant Shares purchasable hereunder in an amount equal to the
applicable number of Warrant Shares purchased. The Holder and the Company
shall
maintain records
showing the number of Warrant Shares purchased and the date of
such purchases.
The Company shall deliver any objection to any Notice of
Exercise Form within one Business Day of receipt of such notice. In
the event of
any dispute or
discrepancy, the
records of the Holder shall be controlling and
determinative in
the absence of manifest error, negligence or willful
misconduct. The
Holder, by acceptance of this Warrant, acknowledges and agrees
that, by reason of the provisions of this paragraph, following the
purchase of a
portion of the Warrant Shares hereunder, the number of Warrant Shares
available
for purchase hereunder
at any given time may be less than the amount stated on
the face hereof.
b) EXERCISE PRICE.
The exercise price per share of the Common
Stock
under this Warrant shall be $______ subject to adjustment
herein (the
"EXERCISE
PRICE").
c) MECHANICS OF EXERCISE.
i. AUTHORIZATION OF WARRANT SHARES. The Company covenants that
all Warrant
Shares which may be issued upon the exercise of the
purchase rights
represented by this Warrant will, upon exercise of the
purchase rights
represented
by this Warrant, be duly authorized,
validly issued, fully
paid and nonassessable
and free from all taxes,
liens and
charges created by the Company in respect of the issue
thereof (other
than taxes in respect of any transfer occurring
contemporaneously with such issue).
ii. DELIVERY OF CERTIFICATES UPON EXERCISE. Certificates for
shares purchased
hereunder shall be
transmitted by the transfer agent
of the Company to the Holder by crediting the account of the Holder's
prime broker with the
Depository
Trust Company through its Deposit
Withdrawal Agent
Commission
("DWAC") system if the Company is a
participant in such system, and otherwise by physical
delivery to the
address specified by
the Holder in the Notice of Exercise within five
Trading Days of receipt by the Company of the Notice of Exercise
Form,
surrender of this Warrant (if required) and payment of the aggregate
Exercise Price as set forth above ("WARRANT SHARE DELIVERY DATE").
This
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Warrant shall be deemed to have been exercised on the date the
Exercise
Price is received by the Company. The Warrant Shares shall be
deemed to
have been issued, and
the Holder or any other Person so designated to
be named therein
shall be deemed to
have become a holder of record of
such shares
for all purposes, as of the date the Warrant has been
exercised by payment to the Company of the Exercise Price and all
taxes
required to be paid by the Holder, if any, pursuant to Section
2(c)(vi)
prior to the issuance of such shares, have been paid.
iii. DELIVERY OF NEW
WARRANTS UPON EXERCISE. If this Warrant
shall have been exercised in part, the Company shall, at the
request of
a Holder and upon surrender of this Warrant certificate, at the
time of
delivery of
the certificate or certificates representing Warrant
Shares, deliver to Holder a new Warrant evidencing the rights of
Holder
to purchase the unpurchased Warrant Shares called for by this
Warrant,
which new Warrant
shall in all other
respects be identical
with this
Warrant.
iv. RESCISSION
RIGHTS. If the Company fails to cause its
transfer agent to transmit to the Holder a certificate or
certificates
representing the
Warrant Shares
pursuant to Section
2(c)(ii) by the
Warrant Share
Delivery Date, then the Holder will have the
right to
rescind such exercise.
v. NO FRACTIONAL
SHARES OR SCRIP.
No fractional shares or
scrip representing
fractional shares shall be issued upon the exercise
of this Warrant.
As to any fraction of a share which Holder would
otherwise be entitled to purchase upon such exercise, the Company
shall
at its election,
either pay a cash adjustment in respect of such final
fraction in an amount equal to such fraction multiplied by the
Exercise
Price or round up to the next whole share.
vi. CHARGES, TAXES AND EXPENSES. Issuance of certificates for
Warrant Shares shall be made without charge to the Holder for any
issue
or transfer tax or other incidental expense in respect of the
issuance
of such certificate,
all of which taxes and
expenses shall be paid by
the Company, and such
certificates shall be
issued in the name of the
Holder or in such
name or names
as may be directed by the Holder;
PROVIDED, HOWEVER,
that in the event
certificates for
Warrant Shares
are to be issued in a
name other
than the name of the
Holder, this
Warrant when
surrendered for
exercise shall be accompanied by the
Assignment Form
attached hereto duly
executed by the Holder; and the
Company may
require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental
thereto.
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vii. CLOSING
OF BOOKS. The Company will not close its
stockholder books or
records in any manner
that prevents
the timely
exercise of this Warrant, pursuant to the terms hereof.
d) EXERCISE
LIMITATIONS. The
Company shall not effect any exercise of
this Warrant and a
Holder shall not have
the right to exercise
any portion of
this Warrant, pursuant
to Section 2(a) or
otherwise, to the
extent that after
giving effect to such issuance after exercise, such Holder (together with such
Holder's Affiliates,
and any other person
or entity acting as a group together
with such Holder or any of such Holder's Affiliates), as set forth on the
applicable Notice of Exercise, would beneficially own in excess
of 4.99% of the
number of shares of the Common Stock outstanding immediately after
giving effect
to such issuance. For
purposes of the foregoing sentence, the number of shares
of Common Stock
beneficially
owned by such
Holder and its
Affiliates
shall
include the number of
shares of Common Stock
issuable upon exercise of this
Warrant with respect to which the determination of such sentence is
being made,
but shall exclude the
number of shares of Common Stock which would be issuable
upon (A) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by
such Holder or any of its Affiliates and (B) exercise or
conversion of the unexercised or nonconverted portion of any other
securities of
the Company
(including,
without
limitation,
any Warrants) subject to a
limitation on
conversion
or exercise
analogous to the
limitation
contained
herein beneficially owned by such Holder or any of its Affiliates.
Except as set
forth in the preceding sentence, for purposes of this Section 2(d),
beneficial
ownership shall be
calculated in accordance with Section 13(d) of the
Exchange
Act and the rules and regulations promulgated thereunder,
it being
acknowledged
by the Holder that the Holder is solely responsible for any schedules
required
to be filed in accordance with Section 13(d) of the Exchange
Act. To the extent
that the limitation contained in this Section 2(d) applies, the
determination of
whether this Warrant is exercisable (in relation to other securities owned by
such Holder) and of which a portion of this Warrant is exercisable shall be in
the sole discretion of
the Holder, and the
submission of a Notice
of Exercise
shall be deemed to be the Holder's determination of whether this Warrant is
exercisable (in relation to other securities owned by the Holder) and of
which
portion of this Warrant is exercisable, in each case subject to such
aggregate
percentage limitation,
and the Company
shall have no
obligation to verify
or
confirm the accuracy of such determination. In addition, a determination as to
any group status as
contemplated above
shall be determined in accordance with
Section 13(d) of the
Exchange Act and the rules and regulations promulgated
thereunder. For
purposes of this Section 2(d), in determining the number of
outstanding shares
of Common Stock, a Holder may rely on the number of
outstanding shares of Common Stock as reflected in (x) the
Company's most recent
Form 10-QSB
or Form 10-KSB, as the case may be, (y) a more recent public
announcement by the
Company or (z) any other notice by the Company or the
Company's Transfer
Agent setting forth the number of shares of
Common Stock
outstanding. Upon the
written or oral request of the Holder, the Company shall
within two Trading Days confirm orally and in writing to the
Holder the number
of shares of Common Stock then outstanding. In any case, the number of
outstanding shares of
Common Stock shall be
determined after
giving effect to
the conversion or exercise of securities of the Company, including
this Warrant,
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by the Holder
or its Affiliates since the date as of which such number of
outstanding shares of Common Stock was reported. The provisions of this Section
2(d) may be waived by the Holder, at the election of the Holder,
upon not less
than 61 days' prior notice to the Company, and the provisions of this Section
2(d) shall
continue to apply until such 61st day (or such
later date, as
determined by such Holder, as may be specified in such notice of
waiver).
SECTION 3. CERTAIN ADJUSTMENTS.
a) STOCK DIVIDENDS AND SPLITS. If the Company, at any time while this
Warrant is
outstanding:
(A) pays a stock dividend or otherwise makes a
distribution or
distributions on shares of its Common Stock or any other equity
or equity equivalent
securities payable in
shares of Common Stock (which, for
avoidance of doubt,
shall not include any
shares of Common Stock issued by the
Company upon exercise of this Warrant), (B) subdivides outstanding shares of
Common Stock into a larger number of shares, (C) combines (including by way of
reverse stock split) outstanding shares of Common Stock into a
smaller number of
shares, or (D) issues
by reclassification
of shares of the
Common Stock any
shares of capital stock of the Company, then in each case, the Exercise Price
shall be multiplied by a fraction of which the numerator
shall be the number
of
shares of Common Stock (excluding treasury shares, if any) outstanding
immediately before
such event and of which the denominator shall be the number
of shares of
Common Stock outstanding immediately after such event. Any
adjustment made pursuant to this Section 3(a) shall become
effective immediately
after the record date for the determination of stockholders
entitled to
receive
such dividend or distribution and shall become effective
immediately
after the
effective date in the case of a subdivision, combination or
re-classification.
b) PRO RATA
DISTRIBUTIONS. If the
Company, at any time prior to the
Termination Date,
shall distribute to all holders of
Common Stock (and not to
the Holder
of the Warrant on an as-exercised basis) evidences of its
indebtedness or assets (including cash and cash dividends) or
rights or warrants
to subscribe for or
purchase any
security other than the Common Stock
(which
shall be subject to Section 3(b) or 3(c)), then in each such case the
Exercise
Price shall be adjusted by multiplying the Exercise Price in effect
immediately
prior to the record date fixed for determination of stockholders entitled to
receive such
distribution by a fraction of which the denominator shall be the
VWAP determined
as of the record date mentioned above, and of which the
numerator shall be
such VWAP on such
record date less the
then per share fair
market value at such
record date of the portion of such assets
or evidence of
indebtedness so distributed applicable to one outstanding share of the Common
Stock as determined by
the Board of Directors of the Company in good faith. In
either case the
adjustments shall be
described in a statement provided to the
Holder of the portion of assets or evidences of indebtedness so distributed or
such subscription
rights applicable to one share of Common Stock. Such
adjustment shall be made whenever any such distribution is made and
shall become
effective immediately after the record date mentioned above.
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c) FUNDAMENTAL
TRANSACTION.
If, at any time
while this Warrant is
outstanding, (A) the
Company effects any merger or consolidation of the Company
with or into
anot
