Exhibit 99.9
Non-US Subscription Agreement
SUBSCRIPTION AGREEMENT, dated as of June 12, 2003 (this "Agreement"), by
and between BBJ Environmental Technologies, Inc. a Nevada corporation (the
"Company"), and the individual named on the signature page hereto (the
"Investor").
WHEREAS, the Investor desires to loan cash to the Company in exchange for a
convertible promissory note, substantially in the form of Exhibit A hereto (the
"Note"), which will be convertible into shares of common stock, par value 0.001
per share, of the Company (the "Common Stock") and warrants to purchase shares
of Common Stock (the "Warrants" and together with the shares of Common Stock,
the "Convertible Securities"); and
WHEREAS, simultaneously herewith, certain other persons are entering into
subscription agreements, substantially similar to this Agreement and dated as of
the date hereof;
NOW, THEREFORE, in order to implement the foregoing and in consideration of
the mutual representations, warranties, covenants and agreements contained
herein, the parties hereto agree as follows:
1. Subscription. Pursuant to the terms and subject to the conditions set forth
in this Agreement, the Investor hereby loans $100,000.00 to the
Company in exchange for the Note.
2. Limitations on Transfer. The Investor acknowledges that it is aware that
since neither the Note nor the Convertible Securities issuable
thereunder will be, and the Investor has no right to require that
they be, registered under the Securities Act of 1933, as amended
(the "Securities Act"), such securities may not be sold unless
such sale is exempt from such registration under said Securities
Act. The Investor further acknowledges that it shall be
responsible for compliance with all conditions on transfer
imposed by any state blue sky or securities law administrator.
3. Representations and Warranties of the Investor. The Investor hereby
represents and warrants to, and covenants and agrees with, the
Company as follows:
a. This Agreement constitutes a valid and binding agreement of
Investor enforceable against it in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy,
moratorium, insolvency, reorganization, fraudulent conveyance or other
laws affecting the enforcement of creditors' rights generally or by
general equitable principles, including, without limitation, those
limiting the availability of specific performance, injunctive relief
and other equitable remedies and those providing for equitable
defenses.
b. The Investor has adequate means of providing for its current
needs and possible contingencies, it anticipates no need now or in the
foreseeable future to
Non-US Subscription Agreement
sell the Note (or the Convertible Securities issuable thereunder) for
which it hereby subscribes and it can afford the loss of its entire
investment in the Company.
c. The Investor has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and
risks of investment in the Company and of making an informed
investment decision.
d. The Investor will be the only owner, beneficial or otherwise,
of the Note (and the Convertible Securities issuable thereunder) being
subscribed for hereby.
e. The Investor has received, and read, and is familiar with
the Offering Memorandum of the Company dated June 12, 2003 and
confirms that all documents, records and books which the Investor has
requested pertaining to the Investor's proposed investment in the
Company have been made available to it. The Investor is aware that no
federal or state agency has passed upon the Note (or the Convertible
Securities issuable thereunder) or made any finding or determination
concerning the fairness of this investment.
f. The Investor has had an opportunity to ask questions of, and
receive answers from, representatives of the Company concerning the
terms and conditions of this investment, and all such questions have
been answered to the full satisfaction of the Investor. The Investor
understands that no person other than the Company has been authorized
to make any representation and if made, such representation may not be
relied on unless it is made in writing and signed by the Company. The
Company has not, however, rendered any investment advice to the
Investor with respect to the suitability of an investment in the Note
(or the Convertible Securities issuable thereunder).
g. The Note (and the Convertible Securities issuable
thereunder) for which the Investor hereby subscribes will be acquired
for the Investor's own account for investment. The Investor intends to
hold the Note (and the Convertible Securities issuable thereunder) for
indefinitely and it is not acquiring the Note (or the Convertible
Securities issuable thereunder) with a view toward distribution in a
manner which would require registration under the Securities Act, and
it does not presently have any reasons to anticipate any change in its
circumstances or other particular occasion or event which would cause
it to sell such Note (or the Convertible Securities issuable
thereunder).
h. The Investor is aware that: (i) an investment in the Company
involves a high degree of risk; and (ii) no federal, state, local or
foreign income tax consequences which may be relevant to it are
discussed in any documents provided in connection with the acquisition
of the Note (or the Convertible Securities issuable thereunder).
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Non-US Subscription Agreement
i. The Investor has received no representations or warranties
from the Company other than those furnished in writing and signed by
the Company.
j. The Investor (i) has the capacity to purchase and hold the
Note (and the Convertible Securities issuable thereunder) and
represents that the acquisition of the Note (and the Convertible
Securities issuable thereunder) will not result in any breach of, or
violation of the terms or provisions of, or constitute a default
under, any indenture or other agreement or instrument by which the
Investor or the Investor's property is bound, or violate any
applicable law, regulation or court decree; (ii) has obtained such tax
advice that the Investor has deemed necessary; and (iii) represents
that the Investor's residence is as set forth on the signature page
hereof.
k. No consent, approval or authorization of, or filing,
registration or qualification with, any court or governmental
authority on the part of the Investor is required for the execution
and delivery of this Agreement by the Investor and the performance of
the Investor's obligations and duties hereunder.
l. The Investor understands that the Company will have the
right to rescind the subscription of any investor if any of the
representations, warranties, covenants, or agreements contained herein
are found to be misleading, false, or incorrect.
m. The Investor has not paid, and will not pay, a commission,
finder's fee, or other selling cost or fee to any person in connection
with its subscription.
n. The Investor is an "accredited investor" as such term is
defined in Regulation D of the Act. Accredited Investors include, but
are not limited to:
(i) Any organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000;
(ii) Any director, executive officer, or general partner of the
issuer of the securities being offered or sold, or any director, executive
officer, or general partner of a general partner of that issuer;
(iii) Any natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his purchase exceeds $1,000,000;
(iv) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in
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Non-US Subscription Agreement
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year;
(v) Any entity in which all of the equity owners are accredited
investors; or
(vi) Any bank as defined in Section 3(a)(2) of the Act (defined
below), or savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary
capacity.
o. The Investor acknowledges that the Note (and the Convertible
Securities issuable thereunder) being offered hereunder have not been
registered under the United States Securities Act of 1933, as amended
(the "Act"), and agrees that it will not offer or sell the Note (or
the Convertible Securities issuable thereunder) in the United States
to, or for the account or benefit of, "U.S. persons" (as such term is
defined in Regulation S promulgated under the Act; herein, "Regulation
S") except in accordance with Regulation S under the Act, pursuant to
registration under the Act or pursuant to an available exemption from
the registration requirements of the Act. The Investor agrees not to
engage in hedging transactions involving the shares received pursuant
hereto unless in compliance with the Act. The Investor acknowledges
that the Company will not register any transfer of the Note (or the
Convertible Securities issuable thereunder) acquired hereunder, unless
such transfer is made in accordance with Regulation S, pursuant to
registration under the Act or pursuant to an available exemption under
the Act.
p. The Investor represents and warrants that it has not
received offering materials in the United States (as defined in
Regulation S), if it is an entity it is formed under the laws of a
jurisdiction other than the United States, and that its principal
place of business is outside the United States.
q. The Investor represents and warrants that it is not a "U.S.
person" (as such term is defined in Regulation S) and that it is not
acquiring the Note (or the Convertible Securities issuable thereunder)
for the account or benefit of any U.S. person.
r. The Investor acknowledges that the Note (and any Convertible
Securities issuable thereunder) received pursuant to this Agreement
will bear the following legend:
THE SECURITIES COVERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF OTHER
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Non-US Subscription Agreement
JURISDICTIONS AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, "U.S. PERSONS"
(AS DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT)
EXCEPT IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT,
PURSUANT TO REGISTRATION OF THE SECURITIES UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
4. Representation and Warranties of the Company. Except as expressly set forth
herein, neither the officers or directors of the Company nor the
Company makes any representation, warranty, covenant or agreement
regarding the Company or its respective businesses, operations,
properties or assets or those of their subsidiaries or any other
matter, and neither the officers or directors nor the Company shall
have any liability to the Investor regarding any of the foregoing
except to the extent expressly provided herein.
5. Indemnification. The Investor acknowledges that it understands the meaning
and legal consequences of the representations and warranties in
Paragraph 3 hereof, and hereby agrees to indemnify and hold harmless
the Company, and its officers, directors and affiliates, from and
against any and all loss, damage, or liability due to, or arising out
of, a breach of any such representations or warranties.
Notwithstanding the foregoing, however, no representation, warranty,
acknowledgment, or agreement made herein by the Investor shall, in any
manner, be deemed to constitute a waiver of any rights granted to the
Investor under federal or state securities laws.
6. No Third Party Beneficiaries. Except for with respect to the rights of the
indemnified parties under Paragraph 5, nothing in this Agreement,
expressed or implied, is intended to confer upon any creditor or any
other person, other than the parties hereto or their respective
successors, any rights, remedies, benefits, obligations or liabilities
of any nature whatsoever under or by reason of this Agreement.
7. Miscellaneous.
a. This Agreement may not be modified, waived or terminated except
by an instrument in writing, signed by a party against whom enforcement of
such modification, waiver, or termination is sought.
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Non-US Subscription Agreement
b. Except as otherwise provided herein, this Agreement shall be
binding upon, and inure to the benefit of the parties hereto and their
heirs, executors, administrators, successors, legal representatives, and
permitted assigns, and the agreements, representations, warranties,
covenants and acknowledgments contained herein shall be deemed to be made
by, and be binding upon, such heirs, executors, administrators, successors,
legal representatives and permitted assigns.
c. This Agreement shall be construed in accordance with, and
governed in all respects by the laws of the State of Nevada applicable to
contracts made and to be performed wholly within the State of Nevada.
d. This Agreement may be executed in one or more counterparts and
by different parties in separate counterparts, with the same effect as if
all parties hereto had signed the same document. All counterparts so
executed and delivered shall be construed together and shall constitute one
and the same agreement.
e. All the agreements, representations and warranties made by the
Investor in this Agreement shall survive the acceptance of the Investor's
subscription by the Company. Unless the Investor notifies the Company in
writing to the contrary before the closing of the offering, all the
representations and warranties of the Investor contained in this Agreement
will be deemed to have been reaffirmed and confirmed as of the closing of
the offering, taking into account all information received by the Investor.
f. The Investor agrees that in the event further action or
execution of documents is required of the Investor, the Investor will take
any and all such actions and execute any such documents as are necessary or
appropriate in connection with the business of the Company.
g. This Agreement constitutes the entire agreement of the Investor
and the Company relating to the matters contained herein, and supersedes
all prior contracts or agreements, whether oral or written.
h. Common nouns and pronouns shall be deemed to refer to the
masculine, feminine, neuter, singular and plural, as the identity of the
person may in the context require.
[Remainder Intentionally Left Blank]
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IN WITNESS WHEREOF, the Investor has executed this Subscription Agreement
as of the date first written above.
By: /s/ Xxxxxx Xxxxxxxx & X. Xxxxxxxxxxxxx
----------------------------------------
Name: Lombard Odier Darier Xxxxxxx & Cie
Address: Xxx xx xx Xxxxxxxxxx 00
0000 Xxxxxx
The Company hereby accepts the foregoing contribution and subscription and
acknowledges receipt of the purchase price of the date set forth thereon.
BBJ ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
1
NEITHER THE WARRANTS NOR THE SHARES OF COMMON STOCK TO BE ISSUED UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, NOR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND WERE AND WILL BE
OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND SUCH LAWS. THE SECURITIES MAY NOT BE SOLD, PLEDGED,
ASSIGNED, OR HYPOTHECATED, EXCEPT IN A TRANSACTION REGISTERED UNDER SUCH ACTS OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACTS. NO
OFFER OR SALE OF THE SECURITIES OFFERED HEREBY MAY BE MADE IN THE UNITED STATES,
OR TO OR FOR, THE ACCOUNT OR BENEFIT OF A "U.S. PERSON" (AS THAT TERM IS DEFINED
IN REGULATION S OF THE SECURITIES ACT) DURING ANY APPLICABLE "DISTRIBUTION
COMPLIANCE PERIOD" (AS THAT TERM IN DEFINED IN REGULATION S OF THE SECURITIES
ACT) IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITES
ACT. FURTHER, NO HEDGING TRANSACTION INVOLVING THESE SECURITIES MAY BE CONDUCTED
DURING SUCH DISTRIBUTION COMPLIANCE PERIOD UNLESS IN COMPLIANCE WITH THE
REGISTRATION OR EXEMPTION PROVISIONS OF THE SECURITIES ACT.
WARRANT
For the Purchase of Shares of Common Stock of
BBJ Environmental Technologies, Inc.
a Nevada corporation
Void After 5:00 p.m. Eastern Standard Time on July 31, 2005.
Warrant to Purchase
133,333 Shares
THIS WARRANT CERTIFIES THAT, for value received, LOMBARD ODIER DARIER
XXXXXXX & CIE, a corporation, or its registered assigns (the "Holder") is
entitled to acquire from BBJ Environmental Technologies, Inc., a Nevada
corporation (the "Company"), an aggregate of One Hundred Thirty-Three Thousand,
Three Hundred, Thirty-Three (133,333) shares of fully paid, nonassessable shares
of Common Stock, par value $0.001 per share, of the Company ("Common Stock") at
any time on or after the Offering Date (as defined below) and on or prior to
5:00 p.m. Eastern Standard Time on July 31, 2005 (the "Expiration Date"), at
such price and upon such terms and conditions as set forth herein. If not
exercised prior to the Expiration Date, this Warrant and all rights granted
under this Warrant shall expire and lapse.
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The number and character of the securities purchasable upon exercise of
this Warrant and the Purchase Price (defined below) are subject to adjustment as
provided in Section 5 hereof. The term "Warrant" as used herein shall include
this Warrant and any warrants issued in substitution for or replacement of this
Warrant, or any warrant into which this Warrant may be divided or exchanged. The
Common Stock purchasable upon exercise of this Warrant shall be referred to
hereinafter collectively as the "Warrant Shares."
1. Exercise; Issuance of Certificates; Payment for Shares.
(a) Purchase Price. Subject to adjustment as provided in Section 5
hereof, the purchase price of each Warrant Share issuable upon exercise of this
Warrant shall be equal to $0.25 per share ("Purchase Price").
(b) Warrant Exercise. The purchase rights represented by this Warrant
may be exercised by the Holder, in whole or in part, at any time, and from time
to time after the first date on which the Company has issued shares of Common
Stock to the Holder under a Subscription Agreement dated the date hereof between
the Company and the Holder (the "Offering Date") and prior to the Expiration
Date, by the surrender and presentment of this Warrant accompanied by a duly
executed Notice of Exercise in the form attached hereto (the "Exercise Notice"),
together with the payment of the aggregate Purchase Price (the "Aggregate
Purchase Price") for the number of Warrant Shares specified in the Exercise
Notice in the manner specified in Section 1(d) hereof, all of which shall be
presented to the Company, at its principal office as set forth on the signature
page of this Warrant, or at such other place as the Company may designate by
notice in writing to the Holder.
(c) Conditions to Acquisition of Warrant Shares. The Company's
obligation to sell the Warrant Shares to the Holder upon exercise of this
Warrant is subject to the conditions that (i) no preliminary or permanent
injunction or other order against the acquisition, purchase, issuance, or
delivery of the Warrant Shares issued by any federal, state, or foreign court of
competent jurisdiction shall be in effect, and (ii) if the Holder is required by
law, rule, or regulation promulgated by any governmental entity to comply with
or seek approvals from any governmental entity prior to purchasing the Warrant
Shares, such compliance or approvals must have been achieved or obtained by the
Holder and proof thereof furnished to the Company; provided, however, that any
failure by the Company to sell Warrant Shares to the Holder as a result of any
of the foregoing conditions shall not affect or prejudice the Holder's right to
acquire such Warrant Shares upon the subsequent satisfaction of such conditions.
(d) Payment of Purchase Price. The Aggregate Purchase Price of the
Warrant Shares being acquired upon exercise of this Warrant shall be paid by the
Holder to the Company by delivery of a certified bank or cashier's check payable
to the order of the Company, or by wire transfer of immediately available United
States funds, in the amount of the Aggregate Purchase Price which shall be
determined by multiplying the Purchase Price by the number of Warrant Shares
specified in the Exercise Notice to be purchased upon such exercise.
(f) Issuance of Certificates. As soon as practicable after full or
partial exercise of this Warrant, the Company at its expense (including, without
limitation, the payment by it of all taxes and governmental charges applicable
to such exercise and issuance of Warrant
3
Shares) shall cause to be issued in the name of and delivered to the Holder or
such other persons as directed by the Holder, a certificate or certificates for
the total number of Warrant Shares for which this Warrant is being exercised in
such denominations as instructed by the Holder, together with any other
securities and property to which the Holder is entitled upon exercise under the
terms of this Warrant. This Warrant shall be deemed to have been exercised, and
the Warrant Shares acquired thereby shall be deemed issued, and the Holder or
any person(s) designated by the Holder shall be deemed to have become holders of
record of such Warrant Shares for all purposes, as of the close of business on
the date that this Warrant, the duly executed and completed Exercise Notice, and
full payment of the Aggregate Purchase Price has been presented and surrendered
to the Company in accordance with the provisions of Section 1(b) hereof,
notwithstanding that the stock transfer books of the Company may then be closed.
In the event this Warrant is only partially exercised, a new Warrant evidencing
the right to acquire the number of Warrant Shares with respect to which this
Warrant shall not then have been exercised, shall be executed, issued and
delivered by the Company to the Holder simultaneously with the delivery of the
certificates representing the Warrant Shares so purchased.
2. Shares Fully Paid; Reservation of Shares. The Company hereby agrees that
it will at all times on and after the Offering Date and on and prior to the
Expiration Date have authorized and will reserve and keep available, solely for
issuance and delivery to the Holder, that number of shares of its Common Stock
(or other securities and property) that may be required from time to time for
issuance and delivery upon the exercise of this Warrant. All Warrant Shares when
issued in accordance with this Warrant shall be duly and validly issued, shall
be fully paid and nonassessable, free and clear of any claim, lien, encumbrance,
or security interest of any kind whatsoever, and free from all preemptive rights
of any security holders of the Company. The Company shall take all action as may
be necessary to assure that such Warrant Shares (and any other securities and
property) may be issued and delivered as provided herein without violation of
any applicable law or regulation, or of any requirements, of any domestic
securities exchange or inter-dealer quotation system upon which the Common Stock
may be listed; provided, however, that the Company shall not be required to
effect a registration under federal, state, foreign or any other securities
laws. The Company will not take any action which would result in any adjustment
of the Purchase Price (as described in Section 5 hereof) if the total number of
Warrant Shares issuable after such action upon exercise of all the outstanding
Warrants, together with all the Common Stock then outstanding and all Common
Stock issuable upon exercise of all other options and warrants and upon
conversion of all convertible securities then outstanding, would exceed the
total number of shares of Common Stock then authorized by the Company's
Certificate of Incorporation, as amended.
3. Exchange, Assignment, or Loss of Warrant.
(a) This Warrant is exchangeable, without expense other than as
provided in this Section 3, at the option of the Holder upon presentation and
surrender hereof to the Company for other Warrants of different denominations
entitling the Holder thereof to acquire in the aggregate the same number of
Warrant Shares that may be acquired hereunder.
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(b) All of the covenants and provisions of this Warrant by or for the
benefit of the Holder shall be binding upon and shall inure to the benefit of,
its successors and permitted assigns hereunder. This Warrant may be sold,
transferred, assigned, or hypothecated only in compliance with Section 7 herein.
If permitted under Section 7, any such assignment shall be made by surrender of
this Warrant to the Company, together with a duly executed assignment in the
form attached hereto ("Assignment Form"), whereupon the Company shall, without
charge, execute and deliver a new Warrant containing the same terms and
conditions of this Warrant in the name of the assignee as named in the
Assignment Form, and this Warrant shall be cancelled at that time. This Warrant,
if properly assigned, may be exercised by a new Holder without first having the
new Warrant issued.
(c) This Warrant may be divided or combined with other Warrants that
carry the same rights upon presentation and surrender of this Warrant at the
office of the Company, together with a written notice signed by the Holder,
specifying the names and denominations in which new Warrants are to be issued.
(d) The Company will execute and deliver to the Holder a new Warrant
of like tenor and date upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction, or mutilation of this
Warrant; provided, that (i) in the case of loss, theft, or destruction, the
Company receives a reasonably satisfactory indemnity or bond, or (ii) in the
case of mutilation, the Holder shall provide and surrender this Warrant to the
Company for cancellation.
(e) Any new Warrant executed and delivered by the Company in
substitution or replacement of this Warrant shall constitute a contractual
obligation of the Company regardless of whether this Warrant was lost, stolen,
destroyed, or mutilated, and shall be enforceable by any Holder thereof.
(f) The Holder shall pay all transfer and excise taxes applicable to
any issuance of new Warrants under this Section 3.
4. Rights of the Holder. The Holder by virtue hereof shall not be entitled
to any rights of a shareholder in the Company (including, without limitation,
rights to receive dividends, vote or receive notice of meetings) or otherwise
deemed to be a shareholder of the Company, either at law or equity, except as
specifically provided for herein. The Company covenants, however, that for so
long as this Warrant is at least partially unexercised, it will furnish the
Holder with copies of all reports and communications furnished to the
shareholders of the Company. The rights of the Holder are limited to those
expressed in this Warrant and are not enforceable against the Company except to
the extent set forth herein.
5. Adjustment of Purchase Price and Number of Warrant Shares. The number
and kind of securities and other property that may be acquired upon the exercise
of this Warrant and the Purchase Price shall be subject to adjustment, from time
to time, upon the happening of any of the following events:
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(a) Dividends, Subdivisions, Combinations, or Consolidations of Common
Shares.
(i) In the event that the Company shall declare, pay, or make any
dividend upon its outstanding Common Stock payable in Common Stock or shall
effect a subdivision of the outstanding shares of Common Stock into a greater
number of shares of Common Stock, then the number of Warrant Shares that may
thereafter be purchased upon the exercise of the rights represented hereby shall
be increased in proportion to the increase in the number of outstanding shares
of Common Stock through such dividend or subdivision, and the Purchase Price
shall be decreased in such proportion. In case the Company shall at any time
combine the outstanding shares of Common Stock into a smaller number of shares
of Common Stock, the number of Warrant Shares that may thereafter be acquired
upon the exercise of the rights represented hereby shall be decreased in
proportion to the decrease through such combination and the Purchase Price shall
be increased in such proportion.
(ii) If the Company declares, pays, or makes any dividend or
other distribution upon its outstanding Common Stock payable in securities or
other property (excluding cash dividends and dividends payable in shares of
Common Stock, but including, without limitation, shares of any other class of
the Company's stock or stock or other securities convertible into or
exchangeable for Common Stock or any other class of the Company's stock or other
interests in the Company or its assets ("Convertible Securities")), the Holder
of this Warrant shall be entitled to exercise this Warrant and, with respect to
any Warrant Shares so acquired, shall be entitled to all the rights of the other
holders of shares of Common Stock with respect to any such distribution. If the
Holder does not exercise this Warrant prior to the record date relating to a
distribution under this Section 5(a)(ii), then such Holder shall not be entitled
to such distribution.
(b) Effect of Reclassification, Reorganization, Consolidation, Merger,
or Sale of Assets.
(i) Upon the occurrence of any of the following events, the
Holder of this Warrant shall be entitled to exercise this Warrant and, with
respect to any Warrant Shares so acquired, shall be entitled to all the rights
of the other holders of shares of Common Stock with respect to receipt of shares
of stock and other securities, property, and interests that are issued or
payable in connection therewith: (A) reclassification, capital reorganization,
or other change of the outstanding shares of Common Stock (other than a change
as a result of an issuance of shares of Common Stock under Section 5(a)), (B)
consolidation or merger of the Company with or into another corporation or
entity (other than a consolidation or merger subject to Section 5(b)(ii) below,
or in which the Company is the continuing corporation and that does not result
in any reclassification, capital reorganization or other change of the
outstanding Common Stock or the Warrant Shares issuable upon exercise of this
Warrant), or (C) spin-off of assets, a subsidiary, or any affiliated entity. The
foregoing provisions of this Section 5(b)(i) shall similarly apply to successive
reclassifications, capital reorganizations and similar changes of shares of
Common Stock and to successive consolidations, mergers, spin-offs, sales, leases
or exchanges. If the Holder does not exercise this Warrant prior to the record
date relating to an event described in
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this Section 5(b)(i), then the Holder shall not be entitled to the benefits
accruing to holders of the shares of Common Stock, except as may be provided in
Section 5(b)(ii) below.
(ii) If any sale, lease, pledge, mortgage, conveyance, or
exchange of all, or substantially all, of the Company's assets or business or
any dissolution, liquidation or winding up of the Company (a "Termination of
Business") shall be proposed, the Company shall deliver written notice to the
Holder of this Warrant in accordance with Section 6 below as a condition
precedent to the consummation of that Termination of Business. If the result of
the Termination of Business is that shareholders of the Company are to receive
securities or other interests of a successor entity, the Company shall cause an
effective provision to be made so that the Holder shall have the right
thereafter, by exercise of this Warrant, to acquire for the Aggregate Purchase
Price described in this Warrant the kind and amount of securities or other
interests as would be issuable or payable with respect to or in exchange for the
number of Warrant Shares that are then purchasable pursuant to this Warrant as
if such Warrant Shares had been issued to the Holder immediately prior to such
event. However, if the result of the Termination of Business is that
shareholders of the Company are to receive money or property other than
securities or other interests in a successor entity, the Holder of this Warrant
shall be entitled to exercise this Warrant and, with respect to any Warrant
Shares so acquired, shall be entitled to all of the rights of the other holders
of shares of Common Stock with respect to any distribution by the Company in
connection with the Termination of Business. In the event no successor entity is
involved, all acquisition rights under this Warrant shall terminate at the close
of business on the date as of which shareholders of record of the shares of
Common Stock shall be entitled to participate in a distribution of the assets of
the Company in connection with the Termination of Business; provided, that, in
no event shall that date be less than 30 days after delivery to the Holder of
this Warrant of the written notice described above and in Section 6. If the
termination of acquisition rights under this Warrant is to occur as a result of
the event at issue, a statement to that effect shall be included in that written
notice.
(c) Purchase Price Adjustments. Except as otherwise provided in this
Section 5, upon any adjustment of the Purchase Price, the Holder shall be
entitled to purchase, based upon the new Purchase Price, the number of shares of
Common Stock, calculated to the nearest full share, obtained by multiplying the
number of Warrant Shares that may be acquired pursuant to this Warrant
immediately prior to the adjustment of the Purchase Price by the Purchase Price
in effect immediately prior to its adjustment and dividing the product so
obtained by the new Purchase Price.
(d) Application of this Section. The provisions of this Section 5
shall apply to successive events that may occur from time to time but shall only
apply to a particular event if it occurs prior to the expiration of this Warrant
either by its terms or by its exercise in full.
(e) Fractional Shares. No fractional Warrant Shares or shares of Common
Stock or scrip representing fractional shares of Common Stock shall be issued
upon the exercise of this Warrant. In the event that an adjustment in the number
of shares of Common Stock issuable upon exercise of this Warrant made pursuant
to this Section 5 hereof results in a number of shares issuable upon exercise
which includes a fraction, at the Holder's election, this Warrant
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may be exercised for the next larger whole number of shares or the Company shall
make a cash payment equal to that fraction multiplied by the current market
value of that share.
(f) Company-Held Shares. For purposes of Sections 5(a) above, Common
Stock owned or held at any relevant time by, or for the account of, the Company
in its treasury or otherwise, shall not be deemed to be outstanding for purposes
of the calculation and adjustments described therein.
6. Notice to the Holder.
(a) If, prior to the expiration of this Warrant either by its terms or
by exercise in full, any of the following shall occur: (i) the Company shall
declare a dividend or authorize any other distribution on its Common Stock,
including those of the type identified in Section 5(a) hereof; (ii) any
reclassification, reorganization, or similar change of the shares of Common
Stock, or any consolidation or merger to which the Company is a party, or the
sale, lease, pledge, mortgage, exchange, or other conveyance of all or
substantially all of the assets of the Company; (iii) the voluntary or
involuntary dissolution, liquidation or winding up of the Company; or (iv) any
purchase, retirement or redemption by the Company of its Common Stock; then, and
in any such case, the Company shall deliver to the Holder written notice thereof
at least 20 days prior to the earliest applicable date specified below with
respect to which notice is to be given, which notice shall state the following:
(x) the date on which a record is to be taken for the purpose of such dividend,
distribution, or rights, or, if a record is not to be taken, the date as of
which the shareholders of record of the Common Stock to be entitled to such
dividend, distribution, or rights are to be determined; (y) the date on which
such reclassification, reorganization, consolidation, merger, sale, lease,
pledge, mortgage, exchange, transfer, dissolution, liquidation, winding up or
purchase, retirement, or redemption is expected to become effective, and the
date, if any, as of which the Company's holders of record of the Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, reorganization, consolidation,
merger, sale, lease, pledge, mortgage, exchange, transfer, dissolution,
liquidation, winding up, purchase, retirement, or redemption; and (z) if any
matters referred to in the foregoing clauses (x) and (y) are to be voted upon by
holders of shares of Common Stock, the date as of which those shareholders to be
entitled to vote are to be determined.
(b) Upon the happening of an event requiring adjustment of the
Purchase Price or the kind or amount of securities or property purchasable
hereunder, the Company shall forthwith give notice to the Holder which indicates
the event requiring the adjustment, the adjusted Purchase Price and the adjusted
number of Warrant Shares that may be acquired or the kind and amount of any such
securities or property so purchasable upon exercise of this Warrant, as the case
may be, and setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. The Company's independent public
accountant shall determine the method of calculating the adjustment and shall
prepare a certificate setting forth such calculations, the reason for the
methodology chosen, and the facts upon which the calculation is based. Such
certificate shall accompany the notice to be provided to the Holder pursuant to
this Section 6(b).
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7. Transfer to Comply with the Securities Act.
(a) This Warrant and the Warrant Shares or any other security issued
or issuable upon exercise of this Warrant may not be offered or sold except in
compliance with the Securities Act of 1933, as amended (the "Securities Act").
(b) The Company may cause the following legend, or its equivalent, to
be set forth on each certificate representing the Warrant Shares, or any other
security issued or issuable upon exercise of this Warrant, not theretofore
distributed to the public or sold to underwriters, as defined by the Securities
Act, for distribution to the public pursuant to Section 7(d) below:
The securities presented by this certificate have not been registered
under the Securities Act of 1933, as amended, nor the securities laws
of any other jurisdiction and were offered and sold in reliance on
exemptions from the registration requirements of the Securities Act and
such laws. The securities may not be sold, pledged, assigned, or
hypothecated, except in a transaction registered under such acts or
pursuant to an exemption from the registration requirements of such
acts. No offer or sale of the securities offered hereby may be made in
the United States, or to or for, the account or benefit of a "U.S.
person" (as that term is defined in Regulation S of the Securities Act)
during any applicable "distribution compliance period" (as that term in
defined in regulations of the Securities Act) in the absence of an
effective registration statement under the Securities Act or pursuant
to an available exemption from registration under the Securities Act.
Further, no hedging transaction involving these securities may be
conducted during such distribution compliance period unless in
compliance with the registration or exemption provisions of the
Securities Act.
8. Best Efforts. The Company covenants that it will not, by amendment of
its Articles of Incorporation or bylaws, or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities, or
any other voluntary action, avoid or seek to avoid the observation or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in carrying out all those terms and in taking all action necessary
or appropriate to protect the rights of the Holder against dilution or other
impairment.
9. Further Assurances. The Company will take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable Warrant Shares or other securities upon the
exercise of all Warrants from time to time outstanding.
10. Notices. All notices, demands, requests, certificates, or other
communications by the Company to the Holder and by the Holder to the Company
shall be in writing and shall be deemed to have been delivered, given, and
received when personally given or on the third
9
calendar day after it is mailed by registered or certified mail to the Holder,
postage pre-paid and addressed to the Holder at his last registered address or,
if the Holder has designated, by notice in writing to the Company, any other
address, to such other address; and, if to the Company, addressed to it at that
address appearing on the signature page of this Warrant. The Company may change
its address for purposes of service of notice by written notice to the Holder at
the address provided above, and the Holder may change its address by written
notice to the Company.
11. Binding Effect. This Warrant shall be binding upon any corporation or
other entity succeeding the Company by merger, consolidation, or other
acquisition.
12. Corporate Books. The Company will at no time close its transfer books
against the transfer of any warrant or of any shares of Common Stock issued or
issuable upon the exercise of any warrant in any manner which interferes with
the timely exercise of this Warrant.
13. Applicable Law. This Warrant shall be governed by, and construed in
accordance with, the laws of the State of Nevada.
14. Survival. The various rights and obligations of the Holder and of the
Company set forth herein shall survive the exercise and surrender of this
Warrant.
15. No Amendments or Modifications. Neither this Warrant nor any provision
hereof may be amended, modified, waived, or terminated except upon the written
consent of the Company and the Holder of this Warrant.
16. Descriptive Headings. The descriptive headings of the several Sections
of this Warrant are inserted for convenience only and do not constitute a part
of this Warrant.
17. Authorization By Board of Directors. The Board of Directors of the
Company has authorized the issuance of this Warrant by a resolution duly adopted
by the Board of Directors on the date of this Warrant.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by an officer, thereunto duly authorized this 8th day of August 2003.
BBJ ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ____________________________ hereby sell(s),
assign(s), and transfer(s) unto __________________________________, the rights
represented by the within Warrant to purchase ___________________ ( )
shares of the Common Stock of BBJ Environmental Technologies, Inc. (the
"Company") pursuant to the terms and conditions of this Warrant held by the
undersigned. The undersigned hereby authorizes and directs the Company (i) to
issue and deliver to the above-named assignee a new Warrant pursuant to which
the rights to purchase being assigned may be exercised, and (ii) if there are
rights to purchase Warrant Shares remaining pursuant to the undersigned's
Warrant after the assignment contemplated herein, to issue and deliver to the
undersigned a new Warrant evidencing the right to purchase the number of Warrant
Shares remaining after issuance and delivery of this Warrant to the above-named
assignee. Except for the number of shares that may be purchased, the new
Warrants to be issued and delivered by the Company are to contain the same terms
and conditions as the undersigned's Warrant. To complete the assignment
contemplated by this Assignment, the undersigned irrevocably appoints
_________________ as the undersigned's attorney-in-fact to transfer this Warrant
and the rights thereunder on the books of the Company with the full power of
substitution for these purposes.
Dated: ______________________, _______________
_________________________________
Printed Name of the Holder
_________________________________
Signature
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NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Warrant, in every particular, without
alteration or enlargement, or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or trust company, or by a firm having
membership on a registered national securities exchange.
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NOTICE OF EXERCISE
(To be executed by the Holder desiring to exercise the right to acquire shares
of Common Stock of BBJ Environmental Technologies, Inc. pursuant to this
Warrant.)
The undersigned Holder of a Warrant to purchase shares of Common Stock
("Shares") of BBJ Environmental Technologies, Inc., a Nevada corporation, hereby
elects to purchase, pursuant to the provisions of the Holder's Warrant dated
_____________________ held by the undersigned, to the extent of purchasing the
following number of such Shares ( ); and requests that the Certificate for such
Shares be issued in the name of, and delivered to ________________________,
whose address is _____________________________________________; and further
requests, if the number of Shares transferred are not all the Shares that may be
acquired pursuant to the unexercised portion of this Warrant, that a new Warrant
of like tenor for the remaining Shares that may be acquired pursuant to this
Warrant be issued and delivered to the undersigned.
Dated:______________________________, ________
Printed Name:_______________________
Signature: _______________________
Address: _______________________
_______________________
(Signature must conform in all respects to the name of holder as specified on
the face of this Warrant.)
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