NEITHER THIS
SECURITY NOR ANY SECURITIES WHICH MAY BE ISSUED UPON EXERCISE OF
THIS SECURITY HAVE BEEN REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF
ANY U.S. STATE OR OTHER JURISDICTION OR ANY EXCHANGE OR
SELF-REGULATORY ORGANIZATION, IN RELIANCE UPON EXEMPTIONS FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED, AND SUCH OTHER LAWS AND REQUIREMENTS, AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD, EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR LISTING OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, SUCH
REGISTRATION AND/OR LISTING REQUIREMENTS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE
OF WHICH WILL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
WASTE2ENERGY HOLDINGS,
INC.
COMMON STOCK
WARRANT
Waste2Energy Holdings, Inc. , a
Delaware corporation (the “ Company
”), hereby certifies that ______________________________, its
permissible transferees, designees, successors and assigns
(collectively, the “ Holder ”), for value
received, is entitled to purchase from the Company at any time and
from time to time commencing on the date first appearing above (the
“ Issuance Date ”), up to and through
12:01a.m. (EST) on the date three (3) years from the Issuance Date
(the “ Termination Date ”) up to _______
shares (each, a “ Share ” and
collectively the “ Shares ”) of the
Company’s common stock, at an exercise price per Share equal
to $2.00 (the “ Exercise Price
”). The number of Shares purchasable hereunder and
the Exercise Price are subject to adjustment as provided in
Section 4 hereof.
This Warrant is being issued by the Company in a
private placement pursuant to the Company’s Confidential
Private Placement Memorandum, dated as of September 9, 2009 as
amended and/or supplemented (the “ PPM
”).
1.
Method of Exercise; Payment.
(a)
Cash Exercise . The purchase rights represented
by this Warrant may be exercised, for cash only, by the Holder, in
whole or in part, at any time, or from time to time, by the
surrender of this Warrant (with the notice of exercise form (the "
Notice of Exercise ") attached hereto as Exhibit
A duly executed) at the principal office of the Company, and by
payment to the Company of an amount equal to the Exercise
Price multiplied by the number of the Shares being purchased, which
amount may be paid, at the election of the Holder, by wire transfer
or certified check payable to the order of the Company. The person
or persons in whose name(s) any certificate(s) representing
Shares shall be issuable upon exercise of this Warrant shall be
deemed to have become the holder(s) of record of, and shall be
treated for all purposes as the record holder(s) of, the Shares
represented thereby (and such Shares shall be deemed to have been
issued) immediately prior to the close of business on the date or
dates upon which this Warrant is exercised.
(b)
Stock Certificates . In the event of any exercise
of the rights represented by this Warrant, as promptly as
practicable after this Warrant is surrendered and delivered to the
Company along with all other appropriate documentation on or after
the date of exercise and in any event within ten (10) days
thereafter, the Company at its expense shall issue and deliver to
the person or persons entitled to receive the same a certificate or
certificates for the number of Shares issuable upon such
exercise. In the event this Warrant is exercised in
part, the Company at its expense will execute and deliver a new
Warrant of like tenor exercisable for the number of Shares for
which this Warrant may then be exercised.
(c)
Taxes . The issuance of the Shares upon the
exercise of this Warrant, and the delivery of certificates or other
instruments representing such Shares, shall be made without charge
to the Holder for any tax or other charge in respect of such
issuance.
(d)
Call Provision . At any time at which the Market
Price of the Company's Common Stock exceeds $2.50 for sixty (60)
Trading Days during any sixty (60) consecutive Trading Days, as
adjusted for stock splits, combinations, recapitalizations and the
like, the Company may elect to call this Warrant; provided however,
the Company may not call this Warrant unless a registration
statement is effective and the Common Stock is listed on an
Eligible Market (" Eligible Market " means the OTC
Bulletin Board, the American Stock Exchange, The New York Stock
Exchange, Inc., The NASDAQ Global Select Market, The NASDAQ Global
Market or The NASDAQ Capital Market); provided further, however,
that in no event shall the number of shares of Common Stock that
may be acquired by the Holder upon exercise pursuant to the terms
of this Section 1(d) at any time shall exceed a number that, when
added to the total number of shares of Common Stock deemed
beneficially owned by the Holder (other than by virtue of the
ownership of securities or rights to acquire securities that have
limitations on the Holder’s right to convert, exercise or
purchase similar to the limitation set forth herein (the “
Excluded Shares ”), together with all shares of
Common Stock deemed beneficially owned at such time (other than by
virtue of the ownership of the Excluded Shares) by persons whose
beneficial ownership of Common Stock would be aggregated with the
beneficial ownership by the Holder for purposes of determining
whether a group exists or for purposes of determining the
Holder’s beneficial ownership, in either such case for
purposes of Section 13(d) of the 1934 Act and Regulation 13D-G
thereunder (including, without limitation, as the same is made
applicable to Section 16 of the 1934 Act and the rules promulgated
thereunder), would result in beneficial ownership by the Holder or
such group of more than 4.9% of the shares of Common Stock for
purposes of Section 13(d) or Section 16 of the 1934 Act and the
rules promulgated thereunder. The Warrant shall remain
outstanding with respect to Warrant Shares that may not be issued
to the Holder pursuant to the foregoing. In order for the Company
to exercise its call right hereunder, (i) it must exercise the
right by providing written notice (the “ Call
Notice ”) to the Holder within 3 Trading Days after
the 10 th Trading Day in which the Market Price of the
Company’s Common Stock exceeded $2.50, (ii) such notice must
indicate the date (the “ Call Date ”) on
which the Warrant shall be exercised, which date may not be sooner
than 3 Trading Days, nor later than 5 Trading Days, after delivery
of the Call Notice, and (iii) the closing price of the Common Stock
on an Eligible Market on the Trading Day immediately preceding the
Call Date must exceed $2.50.
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Exchange,
Transfer and Replacement . At any time prior to the exercise
hereof, this Warrant may be exchanged upon presentation and
surrender to the Company, alone or with other warrants of like
tenor of different denominations registered in the name of the same
Holder, for another warrant or warrants of like tenor in the name
of such Holder exercisable for the aggregate number of Shares as
the warrant or warrants surrendered.
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Replacement
of Warrant . Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of any such loss,
theft, or destruction, upon delivery of an indemnity agreement
reasonably satisfactory in form and amount to the Company, or, in
the case of any such mutilation, upon surrender and cancellation of
this Warrant, the Company, at its expense, will execute and deliver
in lieu thereof, a new Warrant of like tenor.
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(c) Cancellation;
Payment of Expenses . Upon the surrender of this
Warrant in connection with any transfer, exchange or replacement as
provided in this Section 2 , this Warrant shall be promptly
canceled by the Company. The Holder shall pay all taxes
and all other expenses (including legal expenses, if any, incurred
by the Holder or transferees) and charges payable in connection
with the preparation, execution and delivery of Warrants pursuant
to this Section 2 .
(d) Warrant Register
. The Company shall maintain, at its principal executive
offices (or at the offices of the transfer agent for the Warrant or
such other office or agency of the Company as it may designate by
notice to the holder hereof), a register for this Warrant (the
“ Warrant Register ”), in which the
Company shall record the name and address of the person in whose
name this Warrant has been issued, as well as the name and address
of each transferee and each prior owner of this Warrant.
3.
Rights and Obligations of Holders of this Warrant
. The Holder of this Warrant shall not, by virtue
hereof, be entitled to any rights of a stockholder in the Company,
either at law or in equity; provided , however , that
in the event any certificate representing shares of Common Stock or
other securities is issued to the holder hereof upon exercise of
this Warrant, such holder shall, for all purposes, be deemed to
have become the holder of record of such Common Stock on the date
on which this Warrant, together with a duly executed Notice of
Exercise, was surrendered and payment of the aggregate Exercise
Price was made, irrespective of the date of delivery of such Common
Stock certificate.
(a)
Stock Dividends, Reclassifications, Recapitalizations, Etc.
While this Warrant is outstanding, in the event the
Company: (i) pays a dividend in Common Stock or
makes a distribution in Common Stock, (ii) subdivides its
outstanding Common Stock into a greater number of shares,
(iii) combines its outstanding Common Stock into a smaller
number of shares or (iv) increases or decreases the number of
shares of Common Stock outstanding by reclassification of its
Common Stock (including a recapitalization in connection with a
consolidation or merger in which the Company is the continuing
corporation), then (1) the Exercise Price on the record date
of such division or distribution or the effective date of such
action shall be adjusted by multiplying such Exercise Price by a
fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately before such event and the denominator
of which is the number of shares of Common Stock outstanding
immediately after such event, and (2) the number of shares of
Common Stock for which this Warrant may be exercised immediately
before such event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the Exercise Price immediately
before such event and the denominator of which is the Exercise
Price immediately after such event.
(b)
Combination: Liquidation . While this Warrant is
outstanding, (i) In the event of a Combination (as defined
below), each Holder shall have the right to receive upon exercise
of the Warrant the kind and amount of shares of capital stock or
other securities or property which such Holder would have been
entitled to receive upon or as a result of such Combination had
such Warrant been exercised immediately prior to such event
(subject to further adjustment in accordance with the terms
hereof). Unless paragraph (ii) is applicable to a
Combination, the Company shall provide that the surviving or
acquiring Person (as defined below) (the “ Successor
Company ”) in such Combination will assume by written
instrument the
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