|
EXHIBIT 4.6
THIS WARRANT AND THE UNDERLYING SHARES OF
COMMON STOCK HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE “SECURITIES ACT”), OR ANY OTHER
SECURITIES LAWS, HAVE BEEN TAKEN FOR INVESTMENT, AND MAY NOT BE
SOLD OR TRANSFERRED OR OFFERED FOR SALE OR TRANSFER UNLESS A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND OTHER
APPLICABLE SECURITIES LAWS WITH RESPECT TO SUCH SECURITIES IS
THEN IN EFFECT, OR IN THE OPINION OF COUNSEL TO THE ISSUER OF
THESE SECURITIES, SUCH REGISTRATION UNDER THE SECURITIES ACT AND
OTHER APPLICABLE SECURITIES LAWS IS NOT REQUIRED.
WARRANT FOR THE PURCHASE OF SHARES OF
COMMON STOCK OF ECOSPHERE TECHNOLOGIES, INC.
THIS IS TO CERTIFY that, for value received,
__________________ (collectively, the “Holder”), are
entitled to purchase, subject to the terms and conditions
hereinafter set forth, _____________________ _____________
shares of Ecosphere Technologies, Inc., a Delaware corporation
(the “Company”) common stock, $0.01 par value per
share (“Common Stock”), and to receive certificates
for the Common Stock so purchased. The exercise price of
this Warrant is $0.15 per share, subject to adjustment as
provided below (the “Exercise Price”).
1.
Exercise Period and Vesting. This
Warrant may be exercised by the Holders at any time through 5:00
p.m., New York, New York time, ______________, 20__ (the
“Exercise Period”). This Warrant will
terminate automatically and immediately upon the expiration of
the Exercise Period.
2.
Exercise of Warrant. This Warrant
may be exercised, in whole or in part, at any time and from time
to time during the Exercise Period. Such exercise shall be
accomplished by tender to the Company of an amount equal to the
Exercise Price multiplied by number of underlying shares being
purchased (the “Purchase Price”), in cash, by wire
transfer or by certified check or bank cashier’s check,
payable to the order of the Company, together with presentation
and surrender to the Company of this Warrant with an executed
subscription agreement in substantially the form attached hereto
as Exhibit A (the “Subscription”). Upon
receipt of the foregoing, the Company will deliver to the
Holder, as promptly as possible, a certificate or certificates
representing the shares of Common Stock so purchased, registered
in the name of the Holder or its transferee (as permitted under
Section 3 below). With respect to any exercise of this
Warrant, the Holder will for all purposes be deemed to have
become the holder of record of the number of shares of Common
Stock purchased hereunder on the date a properly executed
Subscription and payment of the Purchase Price is received by
the Company
1
(the “Exercise Date”), irrespective
of the date of delivery of the certificate evidencing such
shares, except that, if the date of such receipt is a date on
which the stock transfer books of the Company are closed, such
person will be deemed to have become the holder of such shares
at the close of business on the next succeeding date on which
the stock transfer books are open. Fractional shares of
Common Stock will not be issued upon the exercise of this
Warrant. In lieu of any fractional shares that would have
been issued but for the immediately preceding sentence, the
Holder will be entitled to receive cash equal to the current
market price of such fraction of a share of Common Stock on the
trading day immediately preceding the Exercise Date. In
the event this Warrant is exercised in part, the Company shall
issue a new Warrant to the Holder covering the aggregate number
of shares of Common Stock as to which this Warrant remains
exercisable for.
3.
Transferability and Exchange.
(a)
This Warrant, and the Common Stock issuable upon
the exercise hereof, may not be sold, transferred, pledged or
hypothecated unless the Company shall have been provided with an
opinion of counsel reasonably satisfactory to the Company that
such transfer is not in violation of the Securities Act of 1933
(“Securities Act”), and any applicable state
securities laws. Subject to the satisfaction of the
aforesaid condition, this Warrant and if the underlying shares
of Common Stock may not all be sold under Rule 144, as amended
of the Securities Act, the shares of Common Stock shall be
transferable from time to time by the Holders upon written
notice to the Company. If this Warrant is transferred, in
whole or in part, the Company shall, upon surrender of this
Warrant to the Company, deliver to each transferee a Warrant
evidencing the rights of such transferee to purchase the number
of shares of Common Stock that such transferee is entitled to
purchase pursuant to such transfer. The Company may place
a legend similar to the legend at the top of this Warrant on any
replacement Warrant and on each certificate representing shares
issuable upon exercise of this Warrant or any replacement
Warrants. Only registered Holders may enforce the provisions of
this Warrant against the Company. A transferee of the
original registered Holders becomes a registered Holder only
upon delivery to the Company of the original Warrant and an
original Assignment, substantially in the form set forth in
Exhibit B attached hereto.
(b)
This Warrant is exchangeable upon its surrender
by the Holders to the Company for new Warrants of like tenor and
date representing in the aggregate the right to purchase the
number of shares purchasable hereunder, each of such new
Warrants to represent the right to purchase such number of
shares as may be designated by the Holders at the time of such
surrender (not to exceed the aggregate number of shares
underlying this Warrant).
4.
Adjustments to Exercise Price and Number of
Shares Subject to Warrant . The Exercise Price and the
number of shares of Common Stock purchasable upon the exercise
of this Warrant are subject to adjustment from time to time upon
the occurrence of any of the events specified in this Section 4.
For the purpose of this Section 4, “Common
Stock” means shares now or hereafter authorized of any
class of common stock of the Company, however designated, that
has the right to participate in any distribution of the assets
or earnings of the Company without limit as to per share amount
(excluding, and subject to any prior rights of, any class or
series of preferred stock).
(a)
In case the Company shall (i) pay a dividend or
make a distribution in shares of Common Stock to holders of
shares of Common Stock, (ii) subdivide its outstanding
2
shares of Common Stock into a greater number of
shares, (iii) combine its outstanding shares of Common Stock
into a smaller number of shares, or (iv) issue by
reclassification of its shares of Common Stock other securities
of the Company, then the Exercise Price in effect at the time of
the record date for such dividend or on the effective date of
such subdivision, combination or reclassification, and/or the
number and kind of securities issuable on such date, shall be
proportionately adjusted so that the Holders of the Warrant
thereafter exercised shall be entitled to receive the aggregate
number and kind of shares of Common Stock (or such other
securities other than Common Stock) of the Company, at the same
aggregate Exercise Price, that, if such Warrant had been
exercised immediately prior to such date, the Holders would have
owned upon such exercise and been entitled to receive by virtue
of such dividend, distribution, subdivision, combination or
reclassification. Such adjustment shall be made
successively whenever any event listed above shall occur.
(b)
In case the Company shall fix a record date for
the making of a distribution to all holders of Common Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the surviving
corporation) of cash, evidences of indebtedness or assets, or
subscription rights or warrants, the Exercise Price to be in
effect after such record date shall be determined by multiplying
the Exercise Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the Fair
Market Value per share of Common Stock on such
record date, less the amount of cash so to be distributed or the
Fair Market Value (as determined in good faith by, and reflected
in a formal resolution of, the board of directors of the
Company) of the portion of the assets or evidences of
indebtedness so to be distributed, or of such subscription
rights or warrants, applicable to one share of Common Stock, and
the denominator of which shall be the Fair Market Value
per share of Common Stock. Such adjustment shall be made
successively whenever such a record date is fixed; and in the
event that such distribution is not so made, the Exercise Price
shall again be adjusted to be the Exercise Price which would
then be in effect if such record date had not been fixed.
When determining Fair Market Value of the Company’s
Common Stock, Fair Market Value shall mean: (i) if
the principal trading market for such securities is a national
securities exchange including The Nasdaq Stock Market, or the
Over-the-Counter Bulletin Board (“OTCBB”) (or a
similar system then in use), the last reported sales price on
the principal market the trading day immediately prior to such
record date; or (ii) if subsection (i) is not applicable, and if
bid and ask prices for shares of Common Stock are reported by
the principal trading market or the Pink Sheets, the average of
the high bid and low ask prices so reported for the trading day
immediately prior to such record date. Notwithstanding the
foregoing, if there is no last reported sales price or bid and
ask prices, as the case may be, for the day in question, then
Fair Market Value shall be determined as of the latest day prior
to such day for which such last reported sales price or bid and
ask prices, as the case may be, are available, unless such
securities have not been traded on an exc
|
