THIS WARRANT AND THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THIS WARRANT AND SUCH SECURITIES MAY NOT BE SOLD,
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY
TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER APPLICABLE SECURITIES
LAWS.
WARRANT
To Purchase Common Stock of
▇▇▇▇▇▇ ENVIRONMENTAL SERVICES, INC.
1. GRANT OF WARRANT. Subject to the terms and conditions set forth
herein, ▇▇▇▇▇▇ Environmental Services, Inc., a Delaware corporation, (the
"Company") hereby grants GAP Capital, L.L.C., a Texas limited liability
company ("Buyer") or its registered assigns ("Holder"), this Warrant (this
"Warrant") to purchase from the Company (a) 228,133 shares of Class A Common
Stock, par value $.01 per share, of the Company (the "Class A Common Stock"),
(being approximately equal to 4.9% of the number of shares of Class A Common
Stock that, as of February 22, 1999, were issued and outstanding on a fully
diluted basis giving effect to the exercise of this Warrant and the exercise
of all securities (other than shares of Class B Common Stock (as defined))
convertible into shares of Class A Common Stock) and (b) 235,861 shares of
Class B Common Stock, par value $.01 per share, of the Company (the "Class B
Common Stock"), (being equal to 4.9% of the number of shares of Class B
Common Stock that, as of February 22, 1999, were issued and outstanding on a
fully diluted basis giving effect to the exercise of this Warrant and the
exercise of all securities convertible into shares of Class B Common Stock).
The Class A Common Stock and the Class B Common Stock are referred to
collectively as the "Common Stock." Shares of Common Stock subject to this
Warrant are referred to as the "Warrant Shares." This Warrant is being
granted in connection with, and as consideration for, the substantial expense
to be undertaken by Buyer in connection with the conduct of its due diligence
regarding the Company and in otherwise preparing for the transactions
contemplated by the Tender Offer Agreement between Buyer and the Company
dated as of the date hereof (the "Tender Agreement"). Capitalized terms not
defined herein shall have the meanings set forth in the Tender Agreement.
2. EXERCISE PRICE. The exercise price per share of the Common Stock
shall be Twenty Cents ($.20) (the "Exercise Price").
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3. CONDITIONS TO EXERCISE.
(a) The Holder may exercise this Warrant, in whole or in part, at any
time and from time to time prior to December 31, 2003 after the occurrence of
an Exercise Event (as defined below). Notwithstanding the expiration of the
Warrant, the Holder shall be entitled to acquire those Warrant Shares with
respect to which it has exercised the Warrant in accordance with the terms
hereof prior to the expiration of the Warrant.
(b) An "Exercise Event" shall occur for purposes of this Agreement upon
the occurrence prior to December 31, 1999 of any of the following:
(i) the Company shall have entered into an agreement with a Third
Party pursuant to which such Third Party would acquire in excess of 9.9% of
any class of equity securities of the Company or any substantial portion of
the business or assets of the Company; or
(ii) the Board of Directors of the Company or any record or
beneficial holder of more than 5% of the Class B Common Stock shall
recommend or not oppose any transaction with a Third Party similar to the
transactions contemplated by the Tender Agreement.
4. EXERCISE OF THE WARRANT; PAYMENT AND DELIVERY OF CERTIFICATES. In
order to exercise this Warrant, in whole or in part, Holder shall deliver to
the Company at its principal executive offices the following (the "Exercise
Documents"): (a) a written notice of Holder's election to exercise this
Warrant, which notice shall specify the number of shares of Common Stock to
be purchased pursuant to such exercise; (b) cash or cash equivalent payable
to the order of the Company in an amount equal to the aggregate Exercise
Price for all shares of Common Stock to be purchased pursuant to such
exercise; and (c) this Warrant, accompanied by a subscription for Common
Stock in the form of the Subscription appearing at the end of this Warrant.
Upon receipt thereof, the Company shall, as promptly as practicable, and in
any event within ten (10) days thereafter, execute or cause to be executed
and deliver to such Holder a certificate or certificates representing the
aggregate number of full shares of Common Stock issuable upon such exercise,
or if the Company has a transfer agent for its Common Stock, cause such
transfer agent to do the same. The stock certificate or certificates so
delivered shall be registered in the name of Holder, or such other name as
shall be designated in said notice.
This Warrant shall be deemed to have been exercised and such certificate
or certificates shall be deemed to have been issued, and 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 that the
Exercise Documents are received by the Company. Holder shall not, by virtue
of its ownership of this Warrant, be entitled to any rights of a stockholder
in the Company, either at law or in equity, until Holder delivers the
Exercise Documents in accordance with the terms of this Warrant. If the
exercise of this Warrant is for less than all of the shares of Common Stock
issuable under this
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Warrant, the Company will issue a new Warrant of like tenor and date for the
balance of such shares issuable hereunder to Holder.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants that:
(a) the Company has the full corporate power and authority to execute
and deliver this Warrant and to consummate the transactions contemplated by
this Warrant; the execution, delivery and performance by the Company of this
Warrant and the consummation by the Company of the transactions contemplated
by this Warrant have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of the
Company are necessary to authorize this Warrant or to consummate the
transactions contemplated by this Warrant; this Warrant has been duly and
validly executed and delivered by the Company and constitutes a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms; no filing with, and no permit, authorization,
consent, or approval of, any foreign or domestic public body or authority is
necessary for the consummation by the Company of the transactions
contemplated by this Warrant;
(b) the consummation by the Company of the transactions contemplated by
this Warrant and the compliance by the Company with any of the provisions of
this Warrant will not (i) conflict with or result in any breach of any
provision of the charters of bylaws or equivalent organizational documents of
the Company or any of its subsidiaries; (ii) result in a violation or breach
of, or constitute (with or without notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation, or acceleration)
under, any of the terms, conditions, or provisions of any note, bond,
mortgage, indenture, license, lease, contract agreement, or other instrument
or obligation to which the Company or any of its subsidiaries is a party or
by which any of them or any of their properties or assets may be bound; or
(iii) violate any order, writ, injunction, decree, statute, rule, or
regulation applicable to the Company, any of its subsidiaries or any of their
properties or assets;
(c) the Company has taken all necessary corporate and other action to
reserve, and at all times from the date hereof until the obligation to
deliver Common Stock upon the exercise of the Warrant terminates will have
reserved for issuance, upon exercise of the Warrant, shares of Common Stock
equal to the number of shares of Common Stock for which the Warrant may be
exercised, and the Company will take all necessary corporate action to
reserve for issuance all additional shares of Common Stock or other
securities which may be issued upon exercise of the Warrant pursuant to
Section 6 of this Agreement; and
(d) the shares of Common Stock to be issued upon due exercise of the
Warrant, including all additional shares of Common Stock or other securities
which may be issuable pursuant to Section 6 of this Agreement, upon issuance
and payment therefor pursuant hereto, shall be validly issued, fully paid and
nonassessable, and shall be delivered free and clear of all liens, claims,
charges and
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encumbrances of any kind whatsoever, including any preemptive rights of any
stockholder of the Company.
6. ADJUSTMENT UPON SHARE ISSUANCES, CHANGES IN CAPITALIZATION, ETC.
(a) The Company will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary act, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times 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 in order to protect the rights of Holder against
impairment.
(b) In the event of any change in Common Stock by reason of, without
limitation, a stock dividend, split-up, recapitalization, combination,
exchange of shares or similar transaction, the type and number of shares or
securities to be delivered by the Company pursuant to the Warrant shall be
adjusted appropriately, and proper provision shall be made in the agreements
governing such transaction, so that the Holder shall receive upon exercise of
the Warrant the number and class of shares or other securities or property
that the Holder would have received if the Warrant had been exercised
immediately prior to such event, or the record date therefor, as applicable.
(c) In the event that the Company shall enter into an agreement (i) to
consolidate with or merge into any person, other than the Buyer or one of its
subsidiaries, and the Company shall not be the continuing or surviving
corporation of such consolidation or merger, (ii) to permit any person, other
than the Buyer or one of its subsidiaries, to merge into the Company and the
Company shall be the continuing or surviving corporation, but, in connection
with such merger, the then outstanding shares of Common Stock shall be
changed into or exchanged for stock or other securities of the Company or any
other person or cash or any other property or the then outstanding shares of
Common Stock shall after such merger represent less than 50% of the
outstanding shares and share equivalents of the merged company or (iii) to
sell or otherwise transfer all or substantially all of its assets to any
person, other than the Buyer or one of its subsidiaries, then, and in each
such case, the agreement governing such transaction shall make proper
provision so that the Warrant shall, upon the consummation of any such
transaction and upon the terms and conditions set forth in this Warrant, be
converted into, or exchanged for, an option to acquire the same consideration
received by the holders of Common Stock pursuant to such a transaction had
the Warrant been exercised in full prior to the consummation of such
transaction. The provisions of this Warrant, including Sections 1, 2, 3 and
6, shall apply with appropriate adjustments to any securities for which the
Warrant becomes exercisable pursuant to this Section 6.
7. TAXES. The issuance of any shares of Common Stock or other
certificate upon the exercise of this Warrant shall be made without charge to
Holder for any tax in respect of the issuance of such certificate. The
Company shall be responsible for any applicable issue or transfer taxes.
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8. TRANSFER; REPLACEMENT. Subject to the provisions of the legend on
the face of this Warrant, this Warrant and all options and rights hereunder
are transferable, as to all or any part of the number of shares of Common
Stock purchasable upon its exercise, by Holder in person or by duly
authorized attorney on the books of the Company upon surrender of this
Warrant to the Company, together with written instructions (in the form of
the Form Assignment attached hereto) indicating the name and address of the
transferee and the portion of this Warrant being transferred. The Company
shall deem and treat Holder of this Warrant at any time as the absolute owner
hereof for all purposes and shall not be affected by any notice to the
contrary. If this Warrant is transferred in part, the Company shall at the
time of surrender of this Warrant, issue to the transferee a Warrant covering
the number of shares of Common Stock transferred and to the transferor a
Warrant covering the number of shares of Common Stock not transferred. Upon
receipt of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant, the Company shall issue a
new Warrant of like tenor. The term "Warrant" as used herein includes any
other warrant for which this Warrant may be exchanged. Holder, by its
acceptance hereof, consents to and agrees to be bound by and to comply with
all of the provisions of this Warrant.
9. CASH IN LIEU OF FRACTIONAL SHARES. The Company shall not be
required to issue fractional shares of Common Stock upon the exercise of this
Warrant. If Holder of this Warrant would be entitled, upon the exercise of
any rights evidenced hereby, to receive a fractional interest in a share of
Common Stock, the Company shall pay a cash adjustment for such fraction equal
to the equivalent market price for such fractional share (as determined in a
manner to be prescribed by the Board of Directors of the Company) at the
close of business on the exercise date.
10. MISCELLANEOUS.
(a) EXPENSES. Except as otherwise provided in the Tender Agreement,
each of the parties hereto shall bear and pay all costs and expenses incurred
by it or on its behalf in connection with the transactions contemplated
hereunder, including fees and expenses of its own counsel.
(b) WAIVER AND AMENDMENT. Any provision of this Warrant may be waived
in writing at any time by the party that is entitled to the benefits of such
provision. This Warrant may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the Company, Buyer and the Holder (if different from Buyer).
(c) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARY; SEVERABILITY. Except
as otherwise set forth in the Tender Agreement, this Warrant (including other
documents and instruments referred to herein or therein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof and (ii) is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder. If any term, provision,
covenant or restriction of this Warrant is held by a court of competent
jurisdiction or a governmental entity to be invalid, void or unenforceable,
the remainder
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of the terms, provisions, covenants and restrictions of this Warrant shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
(d) GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ANY
APPLICABLE CONFLICTS OF LAW RULES.
(e) DESCRIPTIVE HEADINGS. The descriptive headings contained herein
are for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Warrant.
(f) SUCCESSORS AND ASSIGNS. Neither this Warrant nor any of the
rights, interests or obligations hereunder shall be assigned by the Company
without the prior written consent of Buyer. Buyer may assign its rights,
interests or obligations under this Warrant to any person without the
Company's consent. This Warrant and the rights evidenced hereby shall inure
to the benefit of and be binding upon the successors and permitted assigns of
the Company, if any, and Holder and, shall be enforceable by any such Holder.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed.
Dated as of June 4, 1999.
▇▇▇▇▇▇ Environmental Services, Inc.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Its: Chairman
---------------------------------
ACKNOWLEDGED:
GAP Capital, L.L.C.,
a Texas limited liability company
By: /s/ ▇▇▇ ▇▇▇▇▇
---------------------------------
▇▇▇ ▇▇▇▇▇,
its Manager
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SUBSCRIPTION FORM
(To be executed only upon exercise of this Warrant)
The undersigned registered owner of this Warrant irrevocably exercises
this Warrant for ______________ shares of Class ____ Common Stock of ▇▇▇▇▇▇
Environmental Services Inc., a Delaware corporation, and herewith makes
payment therefor, all at the price and on the terms and conditions specified
in this Warrant and requests that certificates for the shares of Common Stock
hereby purchased (and any securities or other property issuable upon such
exercise) be issued in the name of and delivered to __________________________
whose address is __________________________, and if such shares of Common
Stock shall not include all of the shares of Common Stock issuable as
provided in this Warrant, that a new Warrant of like tenor and date for the
balance of the shares of Common Stock issuable thereunder to be delivered to
the undersigned.
Dated:_________________________
By:_________________________________
Its:________________________________
Address:____________________________
____________________________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all the
rights of the undersigned under this Warrant with respect to the number of
shares of Common Stock set forth below:
Name & Address of Assignee Number of Shares of Common Stock
and does hereby irrevocably constitute and appoint as Attorney _______________
to register such transfer on the books of ____________________________________
maintained for the purpose, with full power of substitution in the premises.
Dated:_________________________
By:_________________________________
Its:________________________________
The Assignee named above, by acceptance of this assignment, agrees to be
bound by the terms of this Warrant with the same force and effect as if a
signatory thereto.
____________________________________
(signature)
Address:____________________________
____________________________________
Dated:_________________________