Execution Copy
Exhibit 10.91
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WARRANT TO PURCHASE SHARES OF
COMMON STOCK OF COMMODORE APPLIED TECHNOLOGIES, INC.
June 13, 2001
New York, New York
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED
VOID AFTER 5:00 P.M., NEW YORK TIME
ON JUNE 13, 2006
THIS CERTIFIES THAT for value received, The Shaar Fund, LTD., or its
permitted assigns (hereinafter collectively referred to as the "Holder"), may
subscribe for and purchase, subject to the terms and conditions hereof, from
Commodore Applied Technologies, Inc., a Delaware corporation (the "Company"),
166,667 shares of Common Stock of the Company, par value $0.001 per share (the
"Common Stock"), at any time during the period (the "Exercise Period")
commencing at 9:00 a.m. New York Time on June 13, 2001 (the "Commencement Date")
and ending at 5:00 p.m. New York Time, on June 12, 2006, a date which is five
(5) years from the Commencement Date (the "Expiration Date"), at an exercise
price per share (the "Exercise Price") which shall be equal to twenty one cents
($0.21) per share. The number of shares of Common Stock issuable upon exercise
of this Warrant (the "Warrant Shares"), the Exercise Price, and the kind of
securities issuable upon exercise of this Warrant, shall be subject to
adjustment from time to time upon the occurrence of certain events as set forth
below.
Certain Definitions. As used herein:
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(a) the term `Warrant Shares" shall mean the shares of Common Stock
issuable upon exercise of this Warrant, as adjusted from time to time,
1. Exercise Price and Expiration.
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(a) This Warrant may be exercised in whole or in part on any
Business Day (as such term is hereinafter defined) at any time during the
Exercise Period upon surrender to the Company, at its address for notices set
forth in Section 7, of this Warrant (or at such other office of the Company, if
any, or such other office of the Company's duly authorized agent for such
purpose, as may be maintained by the Company in New York, New York or
Alexandria, Virginia for such purpose and so designated by the Company by
written notice to the Holder prior to such exercise), together with the
following: (i) a duly completed and executed Notice of Warrant Exercise in the
form annexed hereto, and (ii) payment of the full Exercise Price for this
Warrant or the portion thereof then being exercised. This Warrant and all rights
and options hereunder shall expire on, and shall be immediately wholly null and
void to the extent the Warrant is not properly exercised prior to, the
Expiration Date. As used in this Warrant the term "Business Day" shall mean the
time period between 9:00 a.m. New York, New York Time and 5:00 p.m. New York,
New York Time on any day other than any Saturday, Sunday, or other day on which
commercial banks in New York, New York are required or are authorized by law to
close.
(b) Such Exercise Price shall be paid in lawful money of the
United States of America by bank cashier's check or by wire transfer of
immediately available funds to such account as shall have been designated in
writing by the Company to the Holder from time to time.
(c) Upon the Holder's surrender of the Warrant and payment of
the Exercise Price as set forth above, the Company shall promptly issue and
cause to be delivered to the Holder a certificate or certificates for the total
number of whole shares of Common Stock for which this Warrant is then so
exercised, as the case may be (adjusted to reflect the effect of the
anti-dilution provisions contained in Section 2 of this Warrant, if any) in such
denominations as are requested for delivery to the Holder, and the Company shall
thereupon deliver such certificates to the Holder. The Holder shall be deemed to
be the Holder of record of the shares of Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such shares of Common Stock
shall not then be actually delivered to the Holder. If, at the time this Warrant
is exercised, a registration statement under the Securities Act is not then in
effect to register under said Securities Act the Warrant Shares issuable upon
exercise of this Warrant (together with any applicable state securities law
registrations), the Company may require the Holder to make such representations,
and may place such legends on certificates representing the Warrant Shares, as
may be reasonably required in the opinion of counsel to the Company to permit
the Warrant Shares to be issued without such registration, unless the Company
receives an opinion of counsel reasonably satisfactory to counsel to the Company
to the effect that said securities may be freely traded without registration
under the Securities Act.
(d) If the Holder shall exercise this Warrant with respect to
less than all of the Warrant Shares that may then be purchased under this
Warrant, having taken into account any prior exercise of the Warrant, the
Company shall promptly execute and deliver to the Holder a new warrant in the
form of this Warrant for the balance of such Warrant Shares.
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2. Certain Anti-dilution Adjustments.
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(a) If the Company shall (i) pay a dividend or make a
distribution to Holders of shares of Company Common Stock in the form of
additional shares of Common Stock or securities convertible into or exchangeable
for Common Stock, (ii) subdivide or split or reverse split or consolidate the
outstanding shares of Common Stock into a larger or smaller number of shares,
(iii) effect an increase or decrease in the number of shares of Common Stock
without consideration, or (iv) effect a recapitalization which shall reclassify
the outstanding shares of Common Stock into one or more classes of Common Stock,
the number of shares of Common Stock issuable upon exercise of this Warrant and
the Exercise Price shall be equitably and proportionately adjusted immediately
following the occurrence of any such event, and the Holder of record of this
Warrant shall be given notice of the same at such Holder's address in the
Company's books and records. An adjustment made pursuant to this Section shall
become effective immediately after the record date in the case of a dividend or
distribution and immediately after the effective date in the case of a
subdivision, split, combination or reclassification; provided, if such record
date shall have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the exercise price
shall be recomputed accordingly as of the close of business on such record date
and thereafter such exercise price in effect shall be as adjusted pursuant to
this Section as of the time of actual payment of such dividend or distribution.
(b) Whenever there shall be an adjustment as provided in this
Section 2, the Company shall promptly cause written notice thereof to be sent by
registered mail, postage prepaid, to the Holder, at its address as it shall
appear in the Warrant Register, which notice shall be accompanied by an
officer's certificate setting forth the number of Warrant Shares purchasable
upon the exercise of this Warrant and the Exercise Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment and
the computation thereof
3. Mergers; Consolidations and Reclassifications.
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(a) In case of any consolidation with or merger of the Company
with or into another corporation (other than a merger or consolidation in which
the Company is the surviving or continuing corporation), or in case of any sale,
lease, or conveyance to another corporation of the property and assets of any
nature of the Company as an entirety or substantially as an entirety, such
successor, leasing, or purchasing corporation, as the case may be, shall (i)
execute with the Holder an agreement providing that the Holder shall have the
right thereafter to receive upon exercise of this Warrant solely the kind and
amount of shares of stock and other securities, property, cash, or any
combination thereof receivable upon such consolidation, merger, sale, lease, or
conveyance by a holder of the number of shares of Common Stock for which this
Warrant might have been exercised immediately prior to such consolidation,
merger, sale, lease, or conveyance and (ii) make effective provision in its
certificate of incorporation or otherwise, if necessary, to effect such
agreement. Such agreement shall provide for adjustments, which shall be as
nearly equivalent as practicable to the adjustments in Section 2.
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(b) In case of any reclassification or change of the shares of
Common Stock issuable upon exercise of this Warrant (other than a change in par
value or from no par value to a specified par value, or as a result of a
subdivision or combination, but including any change in the shares into two or
more classes or series of shares), or in case of any consolidation or merger of
another corporation into the Company in which the Company is the continuing
corporation and in which there is a reclassification or change (including a
change to the right to receive cash or other property) of the shares of Common
Stock (other than a change in par value, or from no par value to a specified par
value, or as a result of a subdivision or combination, but including any change
in the shares into two or more classes or series of shares), the Holder shall
have the right thereafter to receive upon exercise of this Warrant solely the
kind and amount of shares of stock and other securities, property, cash, or any
combination thereof receivable upon such reclassification, change,
consolidation, or merger by a holder of the number of shares of Common Stock for
which this Warrant might have been exercised immediately prior to such
reclassification, change, consolidation, or merger. Thereafter, appropriate
provision shall be made for adjustments, which shall be as nearly equivalent as
practicable to the adjustments in Section 2.
(c) The above provisions of this Section 3 shall similarly
apply to successive reclassifications and changes of shares of Common Stock and
to successive consolidations, mergers, sales, leases, or conveyances.
4. Certain Representations of the Company.
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Throughout the Exercise Period, the Company has and will continue to
have (i) all requisite power and authority to issue this Warrant and the Warrant
Shares, and (ii) sufficient authorized and unissued securities of Common Stock
to permit exercise of this Warrant. The Company's Common Stock is currently
listed for trading on the American Stock Exchange under the symbol "CXI".
5. Certain Covenants of the Company.
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(a) The Company shall take such steps as are necessary to
cause the Company to continue to have sufficient authorized and unissued shares
of Common Stock reserved in order to permit the exercise of the unexercised and
un-expired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Shares
issued upon the due exercise of this Warrant will, upon issuance in accordance
with the terms hereof, be duly authorized, validly issued, fully paid and
non-assessable and free and clear of all taxes, liens, charges, and security
interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any,
attributable to the initial issuance of Warrant Shares upon the exercise of this
Warrant; provided, that the Company shall not be required to pay any tax which
may be payable in respect of any transfer involved in the issue of this Warrant
or of any certificates for Warrant Shares in a name other than that of the
Holder upon the exercise of this Warrant, and the Company shall not be required
to issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax, or shall have established to the satisfaction of the Company that such
tax has been paid.
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(d) This Warrant and, when so issued, the shares of Common
Stock which may be issued upon exercise of the Warrants, will have been issued
pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails (i) to
register the Warrant Shares as provided in a Registration Rights Agreement
between the Holder and the Company, dated of even date herewith, or (ii) to
issue the shares of Common Stock upon the proper exercise of the Warrant, then
the Holder may immediately commence an action for specific performance.
(f) The Company shall not, by any action, including, without
limitation, such as by amending its certificate of incorporation or through any
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, winding up, dividend, distribution, issue or sale of
securities or other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will, at all times, and in
good faith, assist in the carrying out of all such terms and in the taking of
all such actions as may be necessary or appropriate to protect the rights of the
Holder against impairment.
6. No Shareholder Rights. No Holder of this Warrant shall, as such, be
entitled to vote or be deemed the holder of Common Stock or any other kind of
securities of the Company, nor shall anything contained herein be construed to
confer upon the Holder the rights of a shareholder of the Company or the right
to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or give or withhold consent to any
corporate action or to receive notice of meetings or other actions affecting
shareholders (except as otherwise expressly provided herein), or to receive
dividends or subscription rights or otherwise, until the date of Holder's proper
exercise of this Warrant as described herein.
7. Notices. Any notice, demand, request, waiver or other communication
under this Agreement must be in writing and will be deemed to have been duly
given (i) on the date of delivery if delivered by hand to the address of the
party specified below (including delivery by courier), or (ii) on the fifth day
after deposit in the U.S. Mail if mailed to the party to whom notice is to be
given to the address specified below, by first class mail, certified or
registered, return receipt requested, First Class postage prepaid:
to the Company:
Commodore Applied Technologies, Inc.
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman and CEO
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the Holder:
The Shaar Fund Ltd.
c/▇ ▇▇▇▇▇▇▇▇ Capital Management
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Any party may from time to time change its address for the purpose of notices to
that party by a similar notice specifying a new address, but no such change will
be deemed to have been given until it is actually received by the party sought
to be charged with its contents.
8. General.
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(a) This Warrant shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its conflict
of law provisions.
(b) Section and subsection headings used herein are included
herein for convenience of reference only and shall not affect the construction
of this Warrant or constitute a part of this Warrant for any other purpose.
(c) The Registration Rights Agreement dated June 11, 2001 is
intended for the benefit of all holders ("Holders") of this Warrant or any part
hereof and shall be enforceable by any and all such Holders.
(d) Subject to compliance with applicable securities law, this
Warrant shall be transferrable, in whole or in part, to any person or entity.
(e) This Warrant shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, heirs and
assigns.
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IN WITNESS WHEREOF, the Company has duly executed this Warrant on and
as of the date first set forth above.
COMMODORE APPLIED TECHNOLOGIES, INC.
By: ____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President and Treasurer
STATE OF NEW YORK )
) ss:
COUNTY OFNEW YORK )
On this day 13th day of June, 2001, before me, a Notary Public in and
for the jurisdiction aforesaid, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, to me
known, who being by me duly sworn, did depose and say that he is the Vice
President and Treasurer of President of Commodore Applied Technologies, Inc.,
and that he is duly authorized to execute same; and that he subscribed, swore to
and acknowledged the same in his capacity as such officer and as the authorized
and binding act and deed of said corporation.
Notary Public
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NOTICE
OF
WARRANT EXERCISE
TO: Commodore Applied Technologies, Inc.:
The undersigned hereby irrevocably elects to exercise the Warrant and
to purchase thereunder ______ full shares of Common Stock issuable upon the
exercise of such Warrant.
Please check the applicable method by which the undersigned elects to
exercise the Warrant:
The Exercise Price for this warrant shall be paid by delivery of
$___________ in cash as provided for in the Warrant.
The undersigned requests that certificates for such Warrant Shares be
issued in the name of:
Name:
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Address:
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Employer Identification Number. or S.S. No:
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If such number of Warrants shall not be all the Warrants evidenced by
the Warrant document, the undersigned requests that a new document evidencing
the Warrants not so exercised issued and registered in the name of and delivered
to:
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Name
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Address
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Employer Identification Number or Social Security No.
Date: ______________ ________________________________________
Signature