EXHIBIT D
STOCK PURCHASE WARRANT
THIS WARRANT WAS ORIGINALLY ISSUED ON DECEMBER 4, 2000 AND HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED IN VIOLATION OF SUCH ACT, THE RULES AND REGULATIONS THEREUNDER OR
THE PROVISIONS OF THIS WARRANT. THIS WARRANT IS ALSO SUBJECT TO A SECURITIES
PURCHASE AGREEMENT (GECC) DATED AS OF DECEMBER 4, 2000 AMONG HI-RISE RECYCLING
SYSTEMS, INC., AND GENERAL ELECTRIC CAPITAL CORPORATION. A COPY OF THE
SECURITIES PURCHASE AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY HI-RISE
RECYCLING SYSTEMS, INC. TO THE HOLDER HEREOF UPON REQUEST.
Date of Issuance: December 4, 2000 Certificate No. 2000A-1
FOR VALUE RECEIVED, HI-RISE RECYCLING SYSTEMS, INC., a Florida
corporation (the "Company"), hereby grants to General Electric Capital
Corporation, a Delaware corporation ("Holder"), or its permitted transferees and
assigns the right to purchase from the Company at any time after the Date of
Issuance (as set forth above) a total of 17,745,689 Warrant Shares (as defined
herein) at a price per share of $0.01 (the "Initial Exercise Price"). This
Warrant is issued pursuant to the terms of the Securities Purchase Agreement
(GECC), dated as of December 4, 2000 (the "Securities Purchase Agreement"),
between the Company and General Electric Capital Corporation ("GE Capital").
Certain capitalized terms used herein are defined in Section 9 hereof. The
amount and kind of securities obtainable pursuant to the rights granted
hereunder and the purchase price for such securities are subject to adjustment
pursuant to the provisions contained in this Warrant.
This Warrant is subject to the following provisions:
Section 1. Exercise of Warrant.
1A. Exercise Period. The purchase rights represented by this Warrant
may be exercised, in whole or in part, at any time and from time to time during
the period commencing on the Date of Issuance through and including the 10th
anniversary of the Date of Issuance (the "Exercise Period"). Notwithstanding the
foregoing, the Holder must purchase a minimum of 10,000 Warrant Shares each time
it chooses to purchase Warrant Shares, except to purchase the remaining Warrant
Shares available to it.
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised when all of
the following items have been delivered to the Company (the "Exercise Time"):
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(a) a completed Exercise Agreement, as described in Section 1C below,
executed by the Person exercising all or part of the purchase rights represented
by this Warrant (the "Purchaser");
(b) this Warrant;
(c) if the Purchaser is not the Registered Holder, an Assignment or
Assignments in the form set forth in EXHIBIT I hereto evidencing the assignment
of this Warrant to the Purchaser; and
(d) (i)a check payable to the Company in an amount equal to the
product of the Exercise Price (as defined below) multiplied by the number of
Warrant Shares being purchased upon such exercise (the "Aggregate Exercise
Price") and/or (ii) by the Holder's surrender to Company of that number of
shares of Warrant Shares (or the right to receive such number of shares) or
shares of Common Stock having an aggregate Fair Market Value equal to or greater
than the Exercise Price for all shares then being purchased (including those
being surrendered), or (iii) any combination thereof, duly endorsed by or
accompanied by appropriate instruments of transfer duly executed by Holder or by
Holder's attorney duly authorized in writing.
(ii) Certificates for Warrant Shares purchased upon exercise of this
Warrant shall be delivered by the Company to the Purchaser within five (5)
business days after the date of the Exercise Time together with any cash payable
in lieu of a fraction of a share pursuant to Section 14 hereof. Unless all of
the purchase rights represented by this Warrant have been exercised, the Company
shall prepare a new warrant, substantially identical hereto, representing the
rights formerly represented by this Warrant which have not been exercised and
shall, within such five-day period, deliver such new warrant to the Person
designated for delivery in the Exercise Agreement.
(iii) The Warrant Shares issuable upon the exercise of this Warrant
shall be deemed to have been issued to the Purchaser at the Exercise Time, and
the Purchaser shall be deemed for all purposes to have become the Registered
Holder of such Warrant Shares at the Exercise Time.
(iv) The issuance of certificates for Warrant Shares upon exercise of
this Warrant shall be made without charge to the Registered Holder or the
Purchaser for any issuance tax in respect thereof or other cost incurred by the
Company in connection with such exercise and the related issuance of Warrant
Shares (other than transfer taxes payable because the holder of the Warrant
Shares is other than the Registered Holder).
(v) The Company shall not close its books against the transfer of
this Warrant or of any Warrant Shares issued or issuable upon the exercise of
this Warrant in any manner which interferes with the timely exercise of this
Warrant. The Company shall from time to time take all such action as may be
necessary to assure that the par value per share of the unissued Warrant Shares
acquirable upon exercise of this Warrant is at all times equal to or less than
the Exercise Price then in effect. In the event that the Company fails to comply
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with its obligations set forth in the foregoing sentence, the Purchaser may (but
shall not be obligated to) purchase Warrant Shares hereunder at par value, and
the Company shall be obligated to reimburse the Purchaser for the aggregate
amount of consideration paid in connection with such exercise in excess of the
Exercise Price then in effect.
(vi) The Company shall assist and cooperate with the Registered
Holder or any the Purchaser required to make any governmental filings or obtain
any governmental approvals prior to or in connection with any exercise of this
Warrant (including, without limitation, making any filings required to be made
by the Company).
(vii) Notwithstanding any other provision hereof, if an exercise of
any portion of this Warrant is to be made in connection with a Change of
Control, Organic Change (as defined below) or other transaction affecting the
Company, such exercise may at the election of the Registered Holder be
conditioned upon the consummation of such transaction, in which case such
exercise shall not be deemed to be effective until immediately prior to the
consummation of such transaction.
(viii) The Company shall at all times reserve and keep available out
of its authorized but unissued Common Stock solely for the purpose of issuance
upon the exercise of this Warrant, the maximum number of Warrant Shares issuable
upon the exercise of this Warrant. All Warrant Shares which are so issuable
shall, when issued and upon the payment of the applicable Exercise Price, be
duly and validly issued, fully paid and nonassessable, free of any pre-emptive
rights and free from all taxes, liens and charges. The Company shall take all
such actions as may be necessary to ensure that all such Warrant Shares may be
so issued without violation by the Company of any applicable law or governmental
regulation. The Company shall not take any action which would cause the number
of authorized but unissued Warrant Shares to be less than the number of such
shares required to be reserved hereunder for issuance upon exercise of the
Warrant.
(ix) If the Warrant Shares issuable by reason of exercise of this
Warrant are at the time of exercise of this Warrant convertible into or
exchangeable for any other stock or securities of the Company, the Company
shall, at the Purchaser's option and upon surrender of this Warrant by the
Purchaser as provided above together with any notice, statement or payment
required to effect such conversion or exchange of Warrant Shares, deliver to the
Purchaser (or as otherwise specified by the Purchaser) a certificate or
certificates representing the stock or securities into which the Warrant Shares
issuable by reason of such conversion are convertible or exchangeable,
registered in such name or names and in such denomination or denominations as
the Purchaser has specified.
(x) The Company shall not, and shall not permit its Subsidiaries to,
directly or indirectly, by any action (including, without limitation,
reincorporation in a jurisdiction other than Florida, amending its certificate
of incorporation or through any Organic Change, issuance or sale of securities,
recapitalization, reclassification of shares or any other voluntary action)
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant or impair or diminish its value (except for any action which ratably
affects all Warrant Shares and shares of Common Stock), but shall at all times
in good faith assist in the carrying out of all such terms of this Warrant.
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Without limiting the generality of the foregoing, the Company shall (a) obtain
all such authorizations, exemptions or consents from any public regulatory body
having jurisdiction thereof as may be necessary to enable the Company to perform
its obligations under this Warrant and (b) except as set forth in this Section 1
B, not undertake any reverse stock split, combination, reorganization or other
reclassification of its capital stock which would have the effect of causing a
material portion of the purchase rights represented hereby to become exercisable
for less than one share of Common Stock.
1C. Exercise Agreement. Upon any exercise of this Warrant, the
Purchaser shall deliver to the Company an Exercise Agreement in substantially
the form set forth in EXHIBIT I hereto, except that if the Warrant Shares are
not to be issued in the name of the Registered Holder, the Exercise Agreement
shall also state the name of the Person to whom the certificates for the Warrant
Shares are to be issued, and if the number of Warrant Shares to be issued does
not include all of the Warrant Shares purchasable hereunder, it shall also state
the name of the Person to whom a new Warrant for the unexercised portion of the
rights hereunder is to be issued.
Section 2. Adjustment of Exercise Price and Number of Shares. In
order to prevent dilution of the rights granted under this Warrant, the Initial
Exercise Price shall be subject to adjustment from time to time as provided in
this Section 2 (as so adjusted, the "Exercise Price"), and the number of Warrant
Shares obtainable upon exercise of this Warrant shall be subject to adjustment
from time to time, each as provided in this Section 2.
2A. Certain Acquisitions. If and when on or after the Date of
Issuance the Company (i) engages in a business combination transaction, whether
by way of stock purchase, merger, asset purchase or otherwise, or (ii) issues
more than 444,444 shares of Common Stock in the aggregate upon conversion of the
Company's Series B Convertible Preferred Stock, then immediately upon the
consummation of any such transaction or issuance, the number of Warrant Shares
obtainable upon exercise of this Warrant shall be increased so that this Warrant
shall entitle the Registered Holder to purchase that number of Warrant Shares
which shall bear the same proportion to the Fully Diluted Common Stock of the
Company immediately after any such transaction or issuance as the proportion of
that number of Warrant Shares in effect immediately prior to any such
transaction or issuance bore to the Fully Diluted Common Stock of the Company
immediately prior to such transaction or issuance. This adjustment shall be made
separately for each such transaction and issuance. For the purposes hereof,
"Fully Diluted Common Stock" as of a specified time shall mean the aggregate of
all outstanding shares of Common Stock as of such time plus all shares of Common
Stock issuable upon the exercise or conversion of securities exercisable for, or
convertible into, shares of Common Stock of the Company which securities are
outstanding or issuable at such time.
2B. Adjustment to Exercise Price. If and whenever on or after the
Date of Issuance the Company issues or sells, or in accordance with Section 2C
is deemed to have issued or sold, any shares of Common Stock for a consideration
per share less than the Exercise Price in effect immediately prior to the time
of such issue or sale, then immediately upon such issue or sale or deemed issue
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or sale the Exercise Price shall be reduced to the Exercise Price determined by
dividing (i) the sum of (1) the product derived by multiplying the Exercise
Price in effect immediately prior to such issue or sale by the number of shares
of Common Stock Deemed Outstanding immediately prior to such issue or sale, plus
(2) the consideration, if any, received by the Company upon such issue or sale,
by (ii) the number of shares of Common Stock Deemed Outstanding immediately
after such issue or sale. Notwithstanding anything in this Agreement to the
contrary, there will be no adjustment pursuant to this Section 2B for any
issuance or deemed issuance of Common Stock (i) pursuant to exercise of stock
options, warrants and other rights to acquire Common Stock described in Schedule
3.2 of the Securities Purchase Agreement (as such number of shares is
proportionately adjusted for subsequent stock splits, combinations of shares and
stock dividends affecting the Common Stock), in each case pursuant to the terms
thereof as in effect on the date hereof, and (ii) pursuant to the Company's
stock option plans described in Schedule 3.2 of the Securities Purchase
Agreement.
2C. Effect on Exercise Price of Certain Events. For purposes of
determining the adjusted Exercise Price under Section 2B, the following shall be
applicable:
(1) Issuance of Rights or Options. If the Company in any manner
grants or sells any Options and the price per share for which Common Stock is
issuable upon the exercise of such options, or upon conversion or exchange of
any Convertible Securities issuable upon exercise of such Options, is less than
the Exercise Price in effect immediately prior to the time of the granting or
sale of such Options, then the total maximum number of shares of Common Stock
issuable upon the exercise of such Option or upon conversion or exchange of the
total maximum amount of such Convertible Securities issuable upon the exercise
of such Options shall be deemed to be outstanding and to have been issued and
sold by the Company at the time of the granting or sale of such Options for such
price per share. For purposes of this paragraph, the "price per share for which
Common Stock is issuable" shall be determined by dividing (i) the total amount,
if any, received or receivable by the Company as consideration for the granting
or sale of such Options, plus the minimum aggregate amount of additional
consideration payable to the Company upon exercise of all such options, plus in
the case of such Options which relate to Convertible Securities, the minimum
aggregate amount of additional consideration, if any, payable to the Company
upon the issuance or sale of such Convertible Securities and the conversion or
exchange thereof, by (ii) the total maximum number of shares of Common Stock
issuable upon the exercise of such Options or upon the conversion or exchange of
all such Convertible Securities issuable upon the exercise of such Options. No
further adjustment of the Exercise Price shall be made when Convertible
Securities are actually issued upon the exercise of such Options or when Common
Stock is actually issued upon the exercise of such Options or the conversion or
exchange of such Convertible Securities.
(2) Issuance of Convertible Securities. If the Company in any manner
issues or sells any Convertible Securities (other than pursuant to the Company's
stock option plans described in Schedule 3.2 to the Securities Purchase
Agreement), and the price per share for which Common Stock is issuable upon
conversion or exchange thereof is less than the Exercise Price in effect
immediately prior to the time of such issue or sale, then the maximum number of
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shares of Common Stock issuable upon conversion or exchange of such Convertible
Securities shall be deemed to be outstanding and to have been issued and sold by
the Company at the time of the issuance or sale of such Convertible Securities
for such price per share. For the purposes of this paragraph, the "price per
share for which Common Stock is issuable" shall be determined by dividing (i)
the total amount received or receivable by the Company as consideration for the
issue or sale of such Convertible Securities, plus the minimum aggregate amount
of additional consideration, if any, payable to the Company upon the conversion
or exchange thereof, by (ii) the total maximum number of Shares of Common Stock
issuable upon the conversion or exchange of all such Convertible Securities. No
further adjustment of the Exercise Price shall be made when Common Stock is
actually issued upon the conversion or exchange of such Convertible Securities,
and if any such issue or sale of such Convertible Securities is made upon
exercise of any Options for which adjustments of the Exercise Price had been or
are to be made pursuant to other provisions of this Section 2, no further
adjustment of the Exercise Price shall be made by reason of such issue or sale.
(3) Change in Option Price or Conversion Rate. If the purchase price
provided for in any Options, the additional consideration, if any, payable upon
the conversion or exchange of any Convertible Securities or the rate at which
any Convertible Securities are convertible into or exchangeable for Common Stock
changes at any time, the Exercise Price in effect at the time of such change
shall be immediately adjusted to the Exercise Price which would have been in
effect at such time had such Options or Convertible Securities still outstanding
provided for such changed purchase price, additional consideration or conversion
rate, as the case may be, at the time initially granted, issued or sold. For
purposes of this Section 2C(3), if the terms of any Option or Convertible
Security which was outstanding as of the Date of Issuance of this Warrant are
changed in the manner described in the immediately preceding sentence, then such
Option or Convertible Security and the Common Stock deemed issuable upon
exercise, conversion or exchange thereof shall be deemed to have been issued as
of the date of such change; provided, that no such change shall at any time
cause the Exercise Price hereunder to be increased.
(4) Treatment of Expired Options and Unexercised Convertible
Securities. Upon the expiration of any Option or the termination of any right to
convert or exchange any Convertible Security without the exercise of any such
Option or right, the Exercise Price then in effect hereunder shall be adjusted
immediately to the Exercise Price which would have been in effect at the time of
such expiration or termination had such Option or Convertible Security, to the
extent outstanding immediately prior to such expiration or termination, never
been issued. For purposes of this Section 2C(4), the expiration or termination
of any Option or Convertible Security which was outstanding as of the Date of
Issuance shall not cause the Exercise Price hereunder to be adjusted unless, and
only to the extent that, a change in the terms of such Option or Convertible
Security caused it to be deemed to have been issued after the Date of Issuance.
(5) Calculation of Consideration Received. If any Common Stock,
Option or Convertible Security is issued or sold or deemed to have been issued
or sold for cash, the consideration received therefor shall be deemed to be the
amount received by the Company therefor (net of discounts, commissions and
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related expenses). If any Common Stock, Option or Convertible Security is issued
or sold for a consideration other than cash, the amount of the consideration
other than cash received by the Company shall be the fair value of such
consideration, except where such consideration consists of securities, in which
case the amount of consideration received by the Company shall be the Fair
Market Value thereof as of the date of receipt. If any Common Stock, Option or
Convertible Security is issued to the owners of the non-surviving entity in
connection with any merger in which the Company is the surviving company, the
amount of consideration therefor shall be deemed to be the fair value of such
portion of the net assets and business of the non-surviving entity as is
attributable to such Common Stock, Option or Convertible Security, as the case
may be. The fair value of any consideration other than cash and securities shall
be determined jointly by the Company and Holder. If such parties are unable to
reach agreement within a reasonable period of time, the Holder may, upon a
reasonable good faith determination by the Holder that an appraisal is
necessary, request in a timely manner that the fair value of such consideration
be determined by an independent appraiser experienced in valuing such type of
consideration jointly selected by the Company and the Registered Holder of this
Warrant. The determination of such appraiser shall be final and binding upon the
parties, and the fees and expenses of such appraiser shall be borne by the
Company.
(6) Integrated Transactions. In case any Option is issued in
connection with the issue or sale of other securities of the Company, together
comprising one integrated transaction in which no specific consideration is
allocated to such Option by the parties thereto, the Option shall be deemed to
have been issued for a consideration of $01.
(7) Treasury Shares. The number of shares of Common Stock outstanding
at any given time shall not include shares owned or held by or for the account
of the Company or any Subsidiary, and the disposition of any shares so owned or
held shall be considered an issue or sale of Common Stock.
(8) Record Date. If the Company takes a record of the holders of
Common Stock for the purpose of entitling them (i) to receive a dividend or
other distribution payable in Common Stock, Options or in Convertible Securities
or (ii) to subscribe for or purchase Common Stock, Options or Convertible
Securities, then such record date shall be deemed to be the date of the issue or
sale of the shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend or upon the making of such other distribution or
the date of the granting of such right of subscription or purchase, as the case
may be.
2D. Subdivision or Combination of Common Stock. If the Company at any
time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common Stock into a
greater number of shares, the number of Warrant Shares for which this Warrant
shall be exercisable shall be proportionately increased and the Exercise Price
in effect immediately prior to such subdivision shall be proportionately
reduced, and if the Company at any time combines (by reverse stock split or
otherwise) one or more classes of its outstanding shares of Common Stock into a
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smaller number of shares, the number of Warrant Shares for which this Warrant
shall be exercisable shall be proportionately reduced and the Exercise Price in
effect immediately prior to such combination shall be proportionately increased.
2E. Reorganization, Reclassification, Consolidation, Merger or Sale.
Any recapitalization, reorganization, reclassification, consolidation, merger,
sale of all or substantially all of the Company's assets or other transaction in
each case which is effected in such a way that holders of Common Stock are
entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Common Stock is referred
to herein as an "Organic Change." Prior to the consummation of any Organic
Change, the Company shall make appropriate provision (in form and substance
reasonably satisfactory to the Registered Holder of this Warrant) to ensure that
such Registered Holder of this Warrant shall thereafter have the right to
acquire and receive upon exercise hereof, in lieu of or addition to (as the case
may be) the Warrant Shares immediately theretofore acquirable and receivable
upon exercise of this Warrant, such shares of stock, securities or assets as
such holder would have received in connection with such Organic Change if such
holder had exercised its Warrants immediately prior to such Organic Change. In
each such case, the Company shall also make appropriate provision (in form and
substance reasonably satisfactory to the Registered Holder of this Warrant) to
insure that the provisions of this Section 2 and Section 5 hereof shall
thereafter be applicable to the Warrants (including, in the case of any such
Organic Change in which the successor entity or purchasing entity is other than
the Company, an immediate adjustment of the Exercise Price to the value for the
Common Stock reflected by the terms of such Organic Change and a corresponding
immediate adjustment in the number of Warrant Shares acquirable and receivable
upon exercise of the Warrants, if the value so reflected is less than the Fair
Market Value of the Common Stock in effect immediately prior to such Organic
Change). The Company shall not effect any such Organic Change unless, prior to
the consummation thereof, the successor entity (if other than the Company)
resulting from such Organic Change assumes by written instrument (in form and
substance reasonably satisfactory to the Registered Holder of this Warrant) the
obligation to deliver to such Registered Holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, such Registered
Holder may be entitled to acquire.
2F. Certain Events. If any event occurs of the type contemplated by
the provisions of this Section 2 but not expressly provided for by such
provisions (including, without limitation, the granting of stock appreciation
rights, phantom stock rights or other rights with equity features other than
pursuant to the stock option plans described in Schedule 3.2 of the Securities
Purchase Agreement), then the Company's Board of Directors shall make an
appropriate adjustment in the Exercise Price and the number of Warrant Shares
obtainable upon exercise of this Warrant so as to protect the rights of the
Registered Holder of this Warrant; and provided further that no such adjustment
shall increase the Exercise Price as otherwise determined pursuant to this
Section 2 or decrease the number of Warrant Shares issuable upon conversion of
any Warrant.
2G. Notices. Promptly after any adjustment of the Exercise Price, the
Company shall give written notice thereof to the Registered Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
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The Company shall give written notice to the Registered Holder at least 20 days
prior to the date on which any Organic Change shall take place. The Company
shall also give written notice to the Registered Holder at least 20 days prior
to the date on which any dissolution or liquidation shall take place.
Section 3. Notices of Record Date. In case the Company shall take a
record of all holders of its Common Stock (or other stock or securities at the
time deliverable upon the exercise of this Warrant) for the purpose of entitling
or enabling them to receive any dividend or other distribution, or to receive
any right to subscribe for or purchase any shares of any class or any other
securities, or to receive any other right, then, and in each such case, the
Company will mail or cause to be mailed to the Registered Holder of this Warrant
a notice specifying, as the case may be, the date on which a record is to be
taken for the purpose of such dividend, distribution or right, and stating the
amount and character of such dividend, distribution or right, and the time, if
any is to be fixed. Such notice shall be mailed by nationally recognized
overnight courier at least ten (10) days prior to the earlier of the record date
and the effective date for the event specified in such notice, provided that the
failure to mail such notice shall not affect the legality or validity of any
such action.
Section 4. [Intentionally Omitted].
Section 5. No Voting Rights: Limitation of Liability. This Warrant
shall not entitle the Registered Holder hereof to any voting rights or other
rights as a stockholder of the Company. No provision hereof, in the absence of
affirmative action by the Registered Holder to purchase Warrant Shares, and no
enumeration herein of the rights or privileges of the Registered Holder shall
give rise to any liability of such Registered Holder for the Exercise Price of
Warrant Shares acquirable by exercise hereof or as a stockholder of the Company.
Section 6. Transferability. Subject to the transfer conditions
referred to in the legend endorsed hereon, this Warrant and all rights
hereunder, including without limitation the rights described in Sections 8A and
8B hereof are transferable, in whole or in part, without charge to the
Registered Holder, upon surrender of this Warrant with a properly executed
Assignment (in the form of EXHIBIT II hereto) at the principal office of the
Company; provided, however that the rights described in Section 8B hereof shall
cease to be transferable (i) upon any sale of such Warrant Shares to the public
pursuant to Rule 144 (or any successor provision) under the Securities Act or
(ii) when a registration statement with respect to the sale of such Warrant
Shares shall have become effective under the Securities Act and such securities
shall have been disposed of in accordance with such registration statement.
Notwithstanding the foregoing, any transfer must relate to a minimum of 50,000
Warrant Shares or such lesser amount as may then be owned by the transferring
Holder. The Warrant Shares shall also be subject to certain transfer
restrictions and each certificate for Warrant Shares purchased upon exercise of
this Warrant shall bear a legend substantially as follows:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED EXCEPT (I) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR (II) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT IN RESPECT OF WHICH THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO SUCH
EFFECT OR OTHERWISE IN ACCORDANCE WITH THE SECURITIES PURCHASE
AGREEMENT (GECC), DATED AS OF DECEMBER 4, 2000 BETWEEN THE ISSUER
(THE "COMPANY") AND GENERAL ELECTRIC CAPITAL CORPORATION. A COPY OF
SUCH CONDITIONS SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER
HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE."
Section 7. Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Registered Holder at
the principal office of the Company, for new Warrants of like tenor representing
in the aggregate the purchase rights hereunder, and each of such new Warrants
shall represent such portion of such rights as is designated by the Registered
Holder at the time of such surrender. At the request of the Registered Holder
(pursuant to a transfer of Warrants or otherwise), this Warrant may be exchanged
for one or more Warrants to purchase Common Stock. The date the Company
initially issues Warrants pursuant to the Securities Purchase Agreement shall be
deemed to be the "Date of Issuance" regardless of the number of times new
certificates representing the unexpired and unexercised rights formerly
represented by this Warrant shall be issued. All Warrants representing portions
of the rights hereunder are referred to herein as the "Warrants."
Section 8. Optional Redemption.
8A. Optional Redemption of Warrants.
(i) At any time and from time to time during the period through and
including the 10th anniversary of the Date of Issuance (the "Redemption Period")
and commencing (1) after the first to occur of (A) a Change of Control of the
Company, other than one resulting from a Secondary Public Offering (as
hereinafter defined); or (B) the earliest of (x) the termination by the
Borrowers of any Commitment (other than the Acquisition Loan Commitment) (as
such terms are defined in that certain Credit Agreement, dated as of October 28,
1998 (the "Credit Agreement"), among the Company, the other parties named as
Borrowers thereto, GE Capital, BOA, and Key and the other parties which may from
time to time be Lenders thereunder, and GE Capital, as Administrative Agent, and
BOA, National Association, as Revolver Agent) under the Credit Agreement, and
(y) the date upon which the aggregate amount of permanent reductions in the
outstanding principal balance of the Loans made pursuant to the Credit Agreement
(other than mandatory prepayments as described in Section 1.3(b) and Section
1.3(d) of the Credit Agreement or permanent reductions made as a result of
scheduled payments of principal of the Loans) equals or exceeds $10,000,000.00;
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or (z) upon an event of default by the Company pursuant to the Credit Agreement
and/or (2) upon the occurrence of (A) the registration of the Common Stock of
the Company under the Securities Act pursuant to a public offering of the
Company's securities for cash through a nationally recognized underwriter,
pursuant to which public offering the Company is able to raise net proceeds of
at least $5,000,000 ("Secondary Public Offering"), or (B) the adoption by the
Company of an employee stock ownership plan pursuant to which Common Stock will
be issued to such plan or a trust pursuant to such plan for the benefit of
employees, officers, or directors of the Company the Company shall, at the
option of the Registered Holder of this Warrant, which option shall be exercised
by delivering written notice (the "Warrant Redemption Notice") to the Company at
least 20 days prior to the date designated by such holder for redemption of all
or a portion of the Warrant (the "Warrant Redemption Date"), and subject to any
restrictions in the Credit Agreement redeem from such Registered Holder all or a
portion of the Warrant as to which such option shall have been exercised (the
"Redemption Warrants"), at a price per Redemption Warrant equal to the Fair
Market Value of the Redemption Warrants (the "Warrant Redemption Price").
(ii) If the funds of the Company legally available for redemption of
the Redemption Warrant on the Warrant Redemption Date are insufficient to redeem
all of the Redemption Warrant, those funds which are legally available shall be
used to redeem the maximum possible number of such Redemption Warrant. At any
time thereafter when additional funds of the Company become legally available
for the redemption of the Redemption Warrant, such funds shall be used, within
10 days after the end of the fiscal quarter in which such funds become legally
available, to redeem the balance of the Redemption Warrant.
(iii) Within 10 days following receipt of the Warrant Redemption
Notice, the Company shall acknowledge its receipt of such notice and shall
notify the holder having given such notice of the time and place of redemption
and the Warrant Redemption Price.
(iv) Unless there shall have been a default in payment of the Warrant
Redemption Price, the Redemption Warrant shall not, from and after such Warrant
Redemption Date, be deemed to be outstanding. Without limiting any rights of the
holders of Redemption Warrant which are set forth in this Warrant or are
otherwise available under law, any Redemption Warrant which the Company has
become obligated to redeem on any Warrant Redemption Date but which it has not
redeemed shall continue to have all of the powers and rights which such
Redemption Warrant had prior to such Warrant Redemption Date, until the
aggregate Warrant Redemption Price for such Redemption Warrant has been paid in
full. Notwithstanding the foregoing, no such redemption shall affect any rights
which a holder of Warrant Shares may have under Section 8B hereof.
(v) Upon receipt by the Company of a Warrant Shares Redemption Notice
from the Registered Holder upon the occurrence of an event described in Section
8A(i)(2)(A) or (B) above, the Company shall be obligated to redeem from the
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Registered Holder all of the Redemption Warrants prior to redeeming any other
outstanding securities issued by the Company.
8B. Optional Redemption of Warrant Shares.
(i) At any time and from time to time during the Redemption Period,
the Company shall, at the option of each holder of Warrant Shares, which option
shall be exercised by delivering written notice (the "Warrant Shares Redemption
Notice") to the Company at least 20 days prior to the date designated by such
holder for redemption of the Warrant Shares (the "Warrant Shares Redemption
Date"), redeem from such holder of the Warrant Shares all of the Warrant Shares
as to which such option shall have been exercised (the "Redemption Warrant
Shares"), at a price per Redemption Warrant Share equal to the Fair Market Value
thereof (the "Warrant Share Redemption Price").
(ii) If the funds of the Company legally available for redemption of
the Redemption Warrant Shares on the Warrant Shares Redemption Date are
insufficient to redeem all of the Redemption Warrant Shares, those funds which
are legally available shall be used to redeem the maximum possible number of
such Redemption Warrant Shares. At any time thereafter when additional funds of
the Company become legally available for the redemption of the Redemption
Warrant Shares, such funds shall be used, within 10 days after the end of the
fiscal quarter in which such funds become legally available, to redeem the
balance of the Redemption Warrant Shares.
(iii) Within 10 days following receipt of the Warrant Shares
Redemption Notice, the Company shall acknowledge its receipt of such notice and
shall notify the holder having given such notice of the time and place of
redemption and the Warrant Share Redemption Price.
(iv) Unless there shall have been a default in payment of the Warrant
Share Redemption Price, the Redemption Warrant Shares shall not, from and after
such Warrant Shares Redemption Date, be deemed to be outstanding. Without
limiting any rights of the holders of Redemption Warrant Shares which are set
forth in this Warrant or are otherwise available under law, any Redemption
Warrant Shares which the Company has become obligated to redeem on any Warrant
Share Redemption Date but which it has not redeemed shall continue to have all
of the powers and rights which such Redemption Warrant Shares had prior to such
Warrant Share Redemption Date, until the aggregate Warrant Share Redemption
Price for such Redemption Warrant Shares have been paid in full. No such
redemption shall affect any rights which a holder of Warrants may have under
Section 8A or this Section 8B.
(v) Upon receipt by the Company of a Warrant Redemption Notice from
the Registered Holder upon the occurrence of an event described in Section
8A(i)(2)(A) or (B) above, the Company shall be obligated to redeem from the
Registered Holder all of the Redemption Warrant Shares prior to redeeming any
other outstanding securities issued by the Company, provided, that any shares
issued upon the exercise of warrants issued pursuant to the Securities Purchase
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Agreement shall be redeemed pro rata on the basis of the number of such shares
held by the holders thereof.
8C. Limitations on Rights of Redemption. Notwithstanding anything
herein to the contrary, (i) each redemption right provided by Sections 8A and 8B
of this Agreement shall expire if the Warrant Redemption Notice or the Warrant
Share Redemption Notice relating to a particular event that commences a
Redemption Period is not delivered to the Company within 90 days after the
earlier of (a) the date due notice of any such event is given to the Holder
and/or (b) any public announcement of the event that commences a Redemption
Period (any such 90 day period, a "Redemption Notice Period"), and (ii) the Fair
Market Value shall be determined on the date of the event that commences a
Redemption Period. In any event the Company shall give the Holder prompt Notice
of any event commencing a Redemption Period.
Section 9. Definitions. The following terms have the meanings set
forth below:
"BOA" means Bank of America, National Association.
"Change of Control" shall have the meaning ascribed to such term in
the Credit Agreement.
"Closing Date" shall have the meaning ascribed to such term in the
Securities Purchase Agreement.
"Common Stock" means the Company's Common Stock, $01 par value per
share, or any securities into which such Common Stock is hereafter converted,
reclassified or exchanged.
"Common Stock Deemed Outstanding" means at any given time, the number
of shares of Common Stock actually outstanding at such time, plus the number of
shares of Common Stock deemed to be outstanding pursuant to Sections 2C(1) and
2C(2) hereof.
"Convertible Securities" means any stock or securities directly or
indirectly convertible into or exchangeable for Common Stock.
"Fair Market Value" of any security means the highest of: (i) the
market value of the security based on the average of the closing prices of such
security's sales on all securities exchanges or automated quotation system on
which such security may at the time be listed or included, or, if there has been
no sales on any such exchange or reported on such quotation system on any day,
the average of the highest bid and lowest asked prices on all such exchanges or
reported at the end of such day, or, if on any day such security is not so
listed or included in any such quotation system, the average of the highest bid
and lowest asked prices on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau, Incorporated, or any similar
successor organization, in each such case averaged over a period of 21 days
consisting of the third day immediately prior to the day as of which "Fair
Market Value" is being determined and the 20 consecutive business days prior to
such day; provided however, that if such security is an Option, a Convertible
Security or a Warrant, and such security is at any time not listed on any
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securities exchange or quoted in any such quotation system or the
over-the-counter market, the "Fair Market Value" of such security shall be
calculated on the basis of "Fair Market Value" of underlying shares of Common
Stock, less any consideration which would be payable if the holder of such
Option, Convertible Security or a Warrant had exercised, exchanged or converted
such Option, Convertible Security or a Warrant on the date of determination of
the "Fair Market Value"; or (ii) the pro rata share of the book value of the
Company (as determined in accordance with generally accepted accounting
principles by reference to the Company's most recent regularly prepared balance
sheet) attributable to such security (assuming the exercise or conversion
thereof, as appropriate); or (iii) the fair value thereof determined by an
appraiser which shall be an investment bank of nationally recognized standing
experienced in valuing securities, which appraiser shall be jointly selected by
the Company and the Registered Holder of this Warrant, valued on the basis of a
sale of the Company as a whole in an arm's-length transaction between a willing
buyer and the Company as a willing seller, neither acting under compulsion (and
in each case, without any discount or reduction for any liquidity or other
inability to sell such security, or the fact that such security represents a
minority interest in the Company or may be subject to redemption, conversion or
exchange by the Company), and the Company shall pay the fees and expenses of
such appraiser; provided, however, that if such security is not listed on any
securities exchange or quoted in any such quotation system or over the-counter
market, then "Fair Market Value" of such security means the highest of the value
determined by the calculation provided for in (ii) and (iii). Notwithstanding
anything herein to the contrary, prior to commencing any appraisal provided for
in (iii), the Registered Holder shall provide written notice to the Company
requesting such an appraisal no later than the last day of the applicable
Redemption Notice Period. Any delays in the performance of the Company's
obligations under this Agreement that are caused by such appraisal shall not
result in any liability or claims whatsoever upon the Company by the Holder
provided that the Company is diligently causing such appraisal to be effected.
The Company shall give the Holder prompt notice of the names of holders of other
warrants issued by the Company demanding redemption and the number of such
warrants and shares of Common Stock of the Company as to which redemption is so
sought promptly.
"Holder" means GE Capital and any successor in interest thereto.
"Options" means any rights, warrants or options to subscribe for or
purchase Common Stock or Convertible Securities other than rights, warrants or
options referred to in Sections 2A or 2B above.
"Person" means an individual, a partnership (including a limited
partnership), a corporation, a limited liability company, an association, a
joint stock company, a trust, a joint venture, an unincorporated organization
and a governmental entity or any department, agency or political subdivision
thereof.
"Registered Holder" means GE Capital with respect to any security or
such other holder of such security as reflected in the records of the Company or
any securities registrar maintained in the ordinary course.
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"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" shall have the meaning ascribed to such term in the
Credit Agreement.
"Warrant Shares" means shares of the Company's Common Stock issuable
upon exercise of the Warrant; provided, that if the securities issuable or
issued upon exercise of the Warrant are issued by an entity other than the
Company or there is a change in the class of securities so issuable, then the
term "Warrant Shares" shall mean shares of the security issuable upon exercise
of the Warrant if such security is issuable in shares, or shall mean the
equivalent units in which such security is issuable if such security is not
issuable in shares. Once issued such securities shall cease to be Warrant Shares
(i) when a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement or (ii)
upon any sale of such securities to the public pursuant to Rule 144 (or any
successor provision) under the Securities Act.
Section 10. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing this Warrant, and in the case of any such loss, theft
or destruction, upon receipt of an indemnity reasonably satisfactory to the
Company (provided that if the Registered Holder is the original holder of this
Warrant, a financial institution or other institutional investor its own
agreement shall be satisfactory), or, in the case of any such mutilation upon
surrender of such certificate, the Company shall (at its expense) execute and
deliver in lieu of such certificate a new certificate of like kind representing
the same rights represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate.
Section 11. Notices. Except as otherwise provided herein, whenever it
is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by any other parties, or whenever any of the parties desires to
give or serve upon any other parties any communication with respect to this
Agreement, each such notice, demand, request, consent, approval, declaration or
other communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three (3)
Business Days after deposit in the United States Mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) one (1)
Business Day after deposit with a reputable overnight courier with all charges
prepaid or (c) when delivered, if hand-delivered by messenger, all of which
shall be addressed (i) if to the Company at its principal executive offices and
(ii) if to a Registered Holder, at such Registered Holder's address as it
appears in the records of the Company (unless otherwise indicated by any such
Registered Holder) or to such other address (or facsimile number) as may be
substituted by notice given as herein provided. The giving of any notice
required hereunder may be waived in writing by the party entitled to receive
such notice.
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Section 12. Amendment and Waiver. No amendment, modification or
waiver will be binding or effective with respect to any provision of this
Warrant without the prior written consent of the Registered Holder of this
Warrant.
Section 13. Warrant Register. The Company shall maintain at its
principal executive offices a register for the registration of transfer of
Warrants. Upon the surrender of any certificate representing Warrants at such
place, the Company will, at the request of the record holder of such
certificate, execute and deliver (at the Company's expense) a new certificate or
certificates in exchange therefor representing in the aggregate the number of
Warrant Shares represented by the surrendered certificate. Each such new
certificate will be registered in such name and will represent such number of
Warrant Shares as is requested by the holder of the surrendered certificate and
will be substantially identical in form to the surrendered certificate.
Section 14. Fractions of Shares. If any fractional interest in a
Warrant Share would, except for the provisions of this subparagraph, be
delivered upon any exercise of the Warrant, at the request of the Registered
Holder the Company, in lieu of delivering the fractional share therefor, shall
pay an amount to the Registered Holder thereof equal to the Fair Market Value of
such fractional interest as of the date of exercise.
Section 15. Descriptive Headings: Governing Law. The descriptive
headings of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers under its corporate seal and to be
dated as of the date hereof.
HI-RISE RECYCLING SYSTEMS, INC.
By: /s/ Kevin J. Bartczak
--------------------------------
Name: Kevin J. Bartczak
Title: VP, CFO
Attest: /s/ Michael F. Bracken
----------------------------------
Name: Michael F. Bracken
Title: Executive Vice President
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