EXHIBIT 4.1
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON ITS EXERCISE
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED, SOLD, OR OTHERWISE TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS (I)
PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OR (II) IN COMPLIANCE WITH AN
EXEMPTION THEREFROM AND ACCOMPANIED, IF REQUESTED BY BPI INDUSTRIES, INC., WITH
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER
IS IN COMPLIANCE WITH AN EXEMPTION THEREFROM.
WITHOUT PRIOR WRITTEN APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH
ALL APPLICABLE CANADIAN SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED
ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA
OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT, OR IN ANY OTHER JURISDICTION,
UNTIL MAY 1, 2005.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON
ITS EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN ARTICLE II OF THIS WARRANT
Warrant No. SMH - 1 Number of Shares: 643,200
(subject to adjustment)
Date of Issuance: December 31, 2004
BPI INDUSTRIES INC.
COMMON STOCK PURCHASE WARRANT
THIS IS TO CERTIFY THAT, for value received, XXXXXXX XXXXXX XXXXXX INC., a
Texas corporation (the "Registered Holder"), or its permitted assigns, is
entitled to purchase from BPI INDUSTRIES INC., a British Columbia corporation
(the "Company"), at the place where the Warrant Office designated pursuant to
Section 2.1 is located, at a purchase price per share of US$1.25 (as adjusted
pursuant to the terms of this Warrant, the "Exercise Price"), 643,200 shares of
duly authorized, validly issued, fully paid and nonassessable shares of Common
Stock, $0.001 par value per share, of the Company, and is entitled also to
exercise the other appurtenant rights, powers and privileges hereinafter set
forth. The number of shares of the Common Stock purchasable hereunder and the
Exercise Price are subject to adjustment in accordance with Article III hereof.
This Warrant shall expire at 5:00 p.m., Houston time, on December 31, 2006,
provided, that at such time as the Company no longer is listed on the TSX-V (as
defined in this Warrant) as a Tier 2 Issuer this Warrant shall be automatically
extended and shall expire at 5:00 pm, Houston time, on December 31, 2009.
Certain Terms used in this Warrant are defined in Article IV.
ARTICLE I
Exercise of Warrant
1.1 Method of Exercise. This Warrant may be exercised by the Registered
Holder as a whole or in part from time to time until December 31, 2006, at which
time this Warrant shall expire and be of no further force or effect, provided,
that at such time as the Company no longer is listed on the TSX-V (as defined in
this Warrant) as a Tier 2 Issuer, this Warrant shall be automatically extended
and shall expire at 5:00 pm, Houston time, on December 31, 2009; provided
further, that the minimum number of Warrant Shares that may be purchased on a
single exercise shall be 50,000 or the entire number of shares remaining
available for exercise hereunder, whichever is less. To exercise this Warrant,
the Registered Holder or permitted assignees of all rights of the Registered
Holder shall deliver to the Company, at the Warrant Office designated in Section
2.1(a), a written notice in the form of the Purchase Form attached as Exhibit A
hereto, stating therein the election of the Registered Holder or such permitted
assignees of the Registered Holder to exercise this Warrant in the manner
provided in the Purchase Form, (b) payment in full of the Exercise Price (in the
manner described below) for all Warrant Shares purchased hereunder, and (c) this
Warrant. Subject to compliance with Section 3.1(a)(vi), this Warrant shall be
deemed to be exercised on the date of receipt by the Company of the Purchase
Form, accompanied by payment for the Warrant Shares to be purchased and
surrender of this Warrant, as aforesaid, and such date is referred to herein as
the "Exercise Date." Upon such exercise (subject as aforesaid), the Company
shall issue and deliver to the Registered Holder a certificate for the full
number of the Warrant Shares purchasable by the Registered Holder hereunder,
against the receipt by the Company of the total Exercise Price payable hereunder
for all such Warrant Shares, (a) in cash or by certified or cashier's check or
(b) if the Common Stock is registered under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), by surrendering Warrant Shares having a Current
Market Price equal to the Exercise Price for all the Warrant Shares so
purchased. The Person in whose name the certificate(s) for Common Stock is to be
issued shall be deemed to have become a holder of record of such Common Stock on
the Exercise Date.
1.2 Net Exercise. Notwithstanding any provisions herein to the contrary,
if the Common Stock is registered under the Exchange Act, or if the Common Stock
is listed on the TSX-V (as defined in this Agreement) and the Current Market
Price of one share of Common Stock is greater than the Exercise Price (at the
date of calculation as set forth below), in lieu of exercising this Warrant by
payment of cash, the Registered Holder may elect to receive Warrant Shares equal
to the value (as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the Warrant Office together with the
properly endorsed Purchase Form in which event the Company shall issue the
Registered Holder a number of shares of Common Stock computed as follows:
X = Y(A-B)
-----
A
Where: X = the number of shares of Common Stock to be issued to the
Registered Holder.
Y = the number of shares of Common Stock purchasable
under the Warrant or, if only a portion of the Warrant is
being exercised, the portion of the Warrant being canceled
(at the date of such calculation)
A = the Current Market Price of one share of Common Stock
(at the date of such calculation)
B = Exercise Price (as adjusted to the date of such
calculation)
1.3 Fractional Shares. No fractional shares of Common Stock shall be
issued upon exercise of this Warrant. Instead of any fractional shares of Common
Stock that would otherwise be issuable upon exercise of this Warrant, the
Company shall pay a cash adjustment in respect of such fractional interest equal
to the fair market value of such fractional interest as determined in good faith
by the Board of Directors.
1.4 Termination. Notwithstanding any other provision of this Warrant, the
right to exercise this Warrant shall terminate at the close of business on
December 31, 2006, provided, that at such time as the Company no longer is
listed on the TSX-V (as defined in this Warrant) as a Tier 2 Issuer, this
Warrant shall be automatically extended and shall expire at 5:00 pm, Houston
time, on December 31, 2009.
ARTICLE II
Warrant Office; Transfer
2.1 Warrant Office. The Company shall maintain an office for certain
purposes specified herein (the "Warrant Office"), which office shall initially
be the Company's office at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx X0X 0X0, and may subsequently be such other office of the
Company or of any transfer agent of the Common Stock in the continental United
States of which written notice has previously been given to the Registered
Holder. The Company shall maintain, at the Warrant Office, a register for the
Warrant in which the Company shall record the name and address of the Registered
Holder, as well as the name and address of each permitted assignee of the rights
of the Registered Holder.
2.2 Ownership of Warrant. The Company may deem and treat the Registered
Holder as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer as provided in this
Article II.
2.3 Transfer of Warrants. The Company agrees to maintain at the Warrant
Office books for the registration and transfer of this Warrant. This Warrant may
be transferred in whole or in part only in compliance with the applicable law
and only to shareholders, officers, and employees of Xxxxxxx Xxxxxx Xxxxxx Inc.
or to any person who succeeds to all of the assets of Xxxxxxx Xxxxxx Xxxxxx Inc.
The Company, from time to time, shall register the transfer of this Warrant in
such books upon surrender of this Warrant at the Warrant Office, properly
endorsed, together with a written assignment of this Warrant, substantially in
the form of the Assignment attached as Exhibit B hereto. Upon any such transfer,
a new Warrant shall be issued to the transferee, and the Company shall cancel
the surrendered Warrant. The Registered Holder shall
pay all taxes and all other expenses and charges payable in connection with the
transfer of Warrants pursuant to this Section 2.3.
2.4 Registration Rights. The Company agrees (a) that the Warrant Shares
shall be "Registrable Securities" under the Registration Rights Agreement (the
"Registration Rights Agreement") between the Company and the purchasers of
shares of Common Stock and Investor Warrants of the Company issued and sold
pursuant to the terms of the Placement Agent Agreement dated as of December 9,
2004, between the Company and Xxxxxxx Xxxxxx Xxxxxx Inc. and (b) that the
Registered Holder shall have the rights and obligations of a Holder set forth on
the Registration Rights Agreement.
2.5 No Rights as Shareholder Until Exercise. This Warrant does not entitle
the Registered Holder to any voting rights or other rights as a shareholder of
the Company prior to the exercise hereof. Upon the surrender of this Warrant and
the payment of the aggregate Exercise Price, the Warrant Shares so purchased
shall be and be deemed to be issued to the Registered Holder as the record owner
of such shares as of the close of business on the later of the date of such
surrender or payment.
2.6 Expenses of Delivery of Warrants. Except as provided in Section 2.3
above, the Company shall pay all reasonable expenses, taxes (other than transfer
taxes) and other charges payable in connection with the preparation, issuance
and delivery of Warrants and related Warrant Shares hereunder.
2.7 Compliance with Securities Laws. The Registered Holder (and its
transferees and assigns), by acceptance of this Warrant, covenants and agrees
that such Registered Holder is acquiring the Warrants evidenced hereby, and,
upon exercise hereof, the Warrant Shares, for its own account as an investment
and not with a view to distribution thereof. Neither this Warrant nor the
Warrant Shares issuable hereunder have been registered under the Securities Act
or any state securities laws and no transfer of this Warrant or any Warrant
Shares shall be permitted unless the Company has received notice of such
transfer in the form of the assignment attached hereto as Exhibit B,
accompanied, if requested by the Company, by an opinion of counsel reasonably
satisfactory to the Company that an exemption from registration of such Warrant
or Warrant Shares under the Securities Act is available for such transfer,
except that no such opinion shall be required after the registration for resale
of the Warrant Shares has become effective. Upon any exercise of the Warrants
prior to effective registration for resale or except as in accordance with Rule
144 under the Securities Act, certificates representing the Warrant Shares shall
bear a restrictive legend substantially identical to that set forth as follows:
"The securities evidenced by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be sold,
transferred, assigned, or hypothecated unless there is an effective
registration statement under such act covering such securities, the sale
is made in accordance with Rule 144, or the company received an opinion of
counsel for the holder of these securities reasonably satisfactory to the
Company, stating that such sale, transfer, assignment, or hypothecation is
exempt from the registration and prospectus delivery requirements of such
act."
Any purported transfer of the Warrant or Warrant Shares not in compliance
with the provisions of this section shall be null and void. Stop transfer
instructions have been or will be imposed with respect to the Warrant Shares so
as to restrict resale or other transfer thereof, subject to this Section 2.7.
ARTICLE III
Anti-Dilution Provisions
3.1 Adjustment of Exercise Price and Number of Warrant Shares. The
Exercise Price shall be subject to adjustment from time to time as hereinafter
provided in this Article III. Upon each adjustment of the Exercise Price, except
pursuant to Sections 3.1(a)(iii), (iv), and (v), the Registered Holder shall
thereafter be entitled to purchase, at the Exercise Price resulting from such
adjustment, the number of shares of the Common Stock obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
shares of the Common Stock purchasable pursuant hereto immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment.
(a) Exercise Price Adjustments. The Exercise Price shall be subject to
adjustment from time to time as follows:
(i) Adjustment for Stock Splits and Combinations. If the Company
shall, at any time or from time to time after the date hereof (the
"Original Issue Date") while this Warrant remains outstanding, effect a
subdivision of the outstanding Common Stock, the Exercise Price in effect
immediately before such subdivision shall be proportionately decreased.
Conversely, if the Company shall at any time or from time to time after
the Original Issue Date combine the outstanding shares of Common Stock
into a smaller number of shares, the Exercise Price in effect immediately
before such combination shall be proportionately increased. Any adjustment
under this Section 3.1(a)(i) shall become effective at the close of
business on the date the subdivision or combination becomes effective.
(ii) Adjustment for Common Stock Dividends and Distributions. If the
Company, at any time or from time to time after the Original Issue Date
while this Warrant remains outstanding makes, or fixes a record date for
the determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in additional shares of Common
Stock, in each such event the Exercise Price that is then in effect shall
be decreased as of the time of such issuance or, in the event such record
date is fixed, as of the close of business on such record date, by
multiplying the Exercise Price then in effect by a fraction (i) the
numerator of which is the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the
close of business on such record date, and (ii) the denominator of which
is the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on
such record date plus the number of shares of Common Stock issuable in
payment of such dividend or distribution; provided, however, that if such
record date is fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Exercise
Price shall be recomputed
accordingly as of the close of business on such record date, and
thereafter the Exercise Price shall be adjusted pursuant to this Section
3.1(a)(ii) to reflect the actual payment of such dividend or distribution.
(iii) Adjustment for Reclassification, Exchange and Substitution. If
at any time or from time to time after the Original Issue Date while this
Warrant remains outstanding, the Common Stock is changed into the same or
a different number of shares of any class or classes of stock, whether by
recapitalization, reclassification or otherwise (other than an
Acquisition, Asset Transfer, subdivision or combination of shares, stock
dividend, reorganization, merger, consolidation, or sale of assets
provided for elsewhere in this Section 3.1(a)), in any such event the
Registered Holder shall have the right thereafter to convert such stock
into the kind and amount of stock and other securities and property
receivable upon such recapitalization, reclassification or other change by
holders of the maximum number of shares of Common Stock into which such
shares of Common Stock could have been converted immediately prior to such
recapitalization, reclassification or change, all subject to further
adjustment as provided herein or with respect to such other securities or
property by the terms thereof.
(iv) Reorganizations, Mergers, Consolidations or Sales of Assets. If
at any time or from time to time after the Original Issue Date while this
Warrant remains outstanding, there is a capital reorganization of the
Common Stock (other than an Acquisition, Asset Transfer, recapitalization,
or subdivision, combination, reclassification, exchange, or substitution
of shares provided for elsewhere in this Section 3.1(a)), as a part of
such capital reorganization, provision shall be made so that the
Registered Holder shall thereafter be entitled to receive upon exercise
hereof the number of shares of stock or other securities or property of
the Company to which a holder of the number of shares of Common Stock
deliverable upon exercise immediately prior to such event would have been
entitled as a result of such capital reorganization, subject to adjustment
in respect of such stock or securities by the terms thereof. In any such
case, appropriate adjustment shall be made in the application of the
provisions of this Section 3.1(a) with respect to the rights of the
Registered Holder after the capital reorganization to the end that the
provisions of this Section 3.1(a) (including adjustment of the Exercise
Price then in effect and the number of shares issuable upon exercise)
shall be applicable after that event and be as nearly equivalent as
practicable.
(v) Rounding of Calculations; Minimum Adjustment. All calculations
under this Section 3.1(a) and under Section 3.1(b) shall be made to the
nearest cent. Any provision of this Section 3.1 to the contrary
notwithstanding, no adjustment in the Exercise Price shall be made if the
amount of such adjustment would be less than one percent, but any such
amount shall be carried forward and an adjustment with respect thereto
shall be made at the time of and together with any subsequent adjustment
which, together with such amount and any other amount or amounts so
carried forward, shall aggregate one percent or more.
(vi) Timing of Issuance of Additional Common Stock Upon Certain
Adjustments. In any case in which the provisions of this Section 3.1(a)
shall require that an adjustment shall become effective immediately after
a record date for an event, the
Company may defer until the occurrence of such event issuing to the
Registered Holder after such record date and before the occurrence of such
event the additional shares of Common Stock or other property issuable or
deliverable upon exercise by reason of the adjustment required by such
event over and above the shares of Common Stock or other property issuable
or deliverable upon such exercise before giving effect to such adjustment;
provided, however, that the Company upon request shall deliver to such
Registered Holder a due xxxx or other appropriate instrument evidencing
such Registered Holder's right to receive such additional shares or other
property, and such cash, upon the occurrence of the event requiring such
adjustment.
(vii) Voluntary Adjustment by the Company. The Company may at any
time during the term of this Warrant, reduce the then current Exercise
Price to any amount and for any period of time deemed appropriate by the
Board of Directors, in its sole discretion, of the Company. However,
notwithstanding any provision of this Warrant, the Exercise Price shall
not be less than US$1.25, unless a lesser Exercise Price is determined as
a result of the provisions of Sections 3(a)(i) through 3(a)(iv) of this
Warrant.
(b) Current Market Price. The "Current Market Price" shall mean, as of any
date, 5% of the sum of the average, for each of the 20 consecutive Trading Days
immediately prior to such date, of either: (i) the high and low sales prices of
the Common Stock on such Trading Day as reported on the composite tape for the
principal national securities exchange on which the Common Stock may then be
listed, or (ii) if the Common Stock shall not be so listed on any such Trading
Day, the high and low sales prices of Common Stock in the over-the-counter
market as reported by the Nasdaq Stock Market for National Market Securities, or
(iii) if the Common Shares shall not be included in the Nasdaq Stock Market as a
National Market Security on any such Trading Day, the representative bid and
asked prices at the end of such Trading Day in such market as reported by the
Nasdaq Stock Market or (iv) if there be no such representative prices reported
by the Nasdaq Stock Market, the lowest bid and highest asked prices at the end
of such Trading Day in the over-the-counter market as reported by the OTC
Electronic Bulletin Board or National Quotation Bureau, Inc., or any successor
organization, or the TSX-Venture Exchange (the "TSX-V"). For purposes of
determining Current Market Price, the term "Trading Day" shall mean a day on
which an amount greater than zero can be calculated with respect to the Common
Stock under any one or more of the foregoing categories (i), (ii), (iii) and
(iv), and the "end" thereof, for the purposes of categories (iii) and (iv),
shall mean the exact time at which trading shall end on the New York Stock
Exchange. If the Current Market Price cannot be determined under any of the
foregoing methods, Current Market Price shall mean the fair value per share of
Common Stock on such date as determined by the Board of Directors in good faith,
irrespective of any accounting treatment.
(c) Statement Regarding Adjustments. Whenever the Exercise Price shall be
adjusted as provided in Section 3.1(a), and upon each change in the number of
shares of the Common Stock issuable upon exercise of this Warrant, the Company
shall forthwith file, at the office of any transfer agent for this Warrant and
at the principal office of the Company, a statement showing in detail the facts
requiring such adjustment and the Exercise Price and new number of shares
issuable that shall be in effect after such adjustment, and the Company shall
also cause a copy of such statement to be given to the Registered Holder. Each
such statement shall be signed by the Company's chief financial or accounting
officer. Where appropriate, such copy
may be given in advance and may be included as part of a notice required to be
mailed under the provisions of Section 3.1(d).
(d) Notice to Holders. In the event the Company shall propose to take any
action of the type described in clause (iii) or (iv) of Section 3.1(a), the
Company shall give notice to the Registered Holder, in the manner set forth in
Section 6.6, which notice shall specify the record date, if any, with respect to
any such action and the approximate date on which such action is to take place.
Such notice shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action (to the extent such
effect may be known at the date of such notice) on the Exercise Price and the
number, kind or class of shares or other securities or property which shall be
deliverable upon exercise of this Warrant. In the case of any action which would
require the fixing of a record date, such notice shall be given at least 10 days
prior to the date so fixed, and in case of all other action, such notice shall
be given at least 15 days prior to the taking of such proposed action. Failure
to give such notice, or any defect therein, shall not affect the legality or
validity of any such action.
(e) Treasury Stock. For the purposes of this Section 3.1, the sale or
other disposition of any Common Stock of the Company theretofore held in its
treasury shall be deemed to be an issuance thereof.
3.2 Costs. The Registered Holder shall pay all documentary, stamp,
transfer or other transactional taxes attributable to the issuance or delivery
of the Warrant Shares upon exercise of this Warrant. Additionally, the Company
shall not be required to pay any taxes which may be payable in respect of any
transfer involved in the issuance or delivery of any certificate for such
Warrant Shares. The Registered Holder shall reimburse the Company for any such
taxes assessed against the Company.
3.3 Reservations of Shares. The Company shall reserve at all times so long
as this Warrant remains outstanding, free from preemptive rights, out of its
treasury Common Stock or its authorized but unissued shares of Common Stock, or
both, solely for the purpose of effecting the exercise of this Warrant,
sufficient shares of Common Stock to provide for the exercise hereof.
3.4 Valid Issuance. All shares of Common Stock which may be issued upon
exercise of this Warrant will upon issuance by the Company be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issuance thereof attributable to any act or omission by the
Company, and the Company shall take no action which will cause a contrary result
(including without limitation, any action which would cause the Exercise Price
to be less than the par value, if any, of the Common Stock).
ARTICLE IV
Terms Defined
As used in this Warrant, unless the context otherwise requires, the
following terms have the respective meanings set forth below or in the Section
indicated:
Board of Directors means the Board of Directors of the Company.
Common Stock means the Company's authorized Common Stock, $0.001 par value
per share.
Company means BPI Industries Inc., a British Columbia corporation, and any
other corporation assuming or required to assume the obligations undertaken in
connection with this Warrant.
Current Market Price is defined in Section 3.1(b).
Exchange Act is defined in Section 1.1.
Exercise Date is defined in Section 1.1.
Exercise Price is defined in the Preamble.
Original Issue Date is defined in Section 3.1(a)(i).
Outstanding means when used with reference to Common Stock at any date,
all issued shares of Common Stock (including, but without duplication, shares
deemed issued pursuant to Article III) at such date, except shares then held in
the treasury of the Company.
Person means any individual, corporation, partnership, trust,
organization, association or other entity.
Registered Holder is defined in the Preamble.
Securities Act means the Securities Act of 1933 and the rules and
regulations promulgated thereunder, all as the same shall be in effect at the
time.
Trading Day is defined in Section 3.1(b).
Warrant means this Warrant and any successor or replacement Warrant
delivered in accordance with Section 2.3 or 6.8.
Warrant Office is defined in Section 2.1.
Warrant Shares means the shares of Common Stock purchased or purchasable
by the Registered Holder, or the permitted assignees of such Registered Holder,
upon exercise of this Warrant pursuant to Article I hereof.
ARTICLE V
Covenant of the Company
The Company covenants and agrees that this Warrant shall be binding upon
any corporation succeeding to the Company by merger, consolidation, or
acquisition of all or substantially all of the Company's assets.
ARTICLE VI
Miscellaneous
6.1 Entire Agreement. This Warrant and the Registration Rights Agreement
contain the entire agreement between the Registered Holder and the Company with
respect to the Warrant Shares that it can purchase upon exercise hereof and the
related transactions and supersedes all prior arrangements or understanding with
respect thereto.
6.2 Governing Law. This Warrant shall be governed by and construed in
accordance with the internal laws of the State of Texas, without regard to its
conflict of law provisions.
6.3 Waiver and Amendment. Any term or provision of this Warrant may be
waived at any time by the party which is entitled to the benefits thereof, and
any term or provision of this Warrant may be amended or supplemented at any time
by the written consent of the parties (it being agreed that an amendment to or
waiver under any of the provisions of Article III of this Warrant shall not be
considered an amendment of the number of Warrant Shares or the Exercise Price).
No waiver by any party of any default, misrepresentation, or breach of warranty
or covenant hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising because of any prior
or subsequent such occurrence.
6.4 Illegality. In the event that any one or more of the provisions
contained in this Warrant shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in any other respect and the remaining
provisions of this Warrant shall not, at the election of the party for whom the
benefit of the provision exists, be in any way impaired.
6.5 Copy of Warrant. A copy of this Warrant shall be filed among the
records of the Company.
6.6 Notice. Any notice or other document required or permitted to be given
or delivered to the Registered Holder shall be delivered at, or sent by
certified or registered mail to such Registered Holder at, the last address
shown on the books of the Company maintained at the Warrant Office for the
registration of this Warrant or at any more recent address of which the
Registered Holder shall have notified the Company in writing. Any notice or
other document required or permitted to be given or delivered to the Company,
other than such notice or documents required to be delivered to the Warrant
Office, shall be delivered at, or sent by
certified or registered mail to, the office of the Company at 000 Xxxx XxXxxxx
Xxxxxx, Xxxxxx, XX 00000 or any other address within the continental United
States of America as shall have been designated in writing by the Company
delivered to the Registered Holder.
6.7 Limitation of Liability; Not Stockholders. Subject to the provisions
of Article III, until the exercise of this Warrant, the Registered Holder shall
not have or exercise any rights by virtue hereof as a stockholder of the
Company, including, without limitation, the right to vote, to receive dividends
and other distributions, or to receive notice of, or attend meetings of
stockholders or any other proceedings of the Company. Until the exercise of this
Warrant, no provision hereof, and no mere enumeration herein of the rights or
privileges of the Registered Holder, shall give rise to any liability of such
Registered Holder for the purchase price of any shares of Common Stock or as a
stockholder of the Company, whether such liability is asserted by the Company or
by creditors of the Company.
6.8 Exchange, Loss, Destruction, etc. of Warrant. Upon receipt of evidence
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory evidence) of the loss, theft, mutilation or destruction of this
Warrant, and, in the case of any such loss, theft or destruction, upon delivery
of a bond of indemnity in such form and amount as shall be reasonably
satisfactory to the Company, or, in the event of such mutilation upon surrender
and cancellation of this Warrant, the Company will make and deliver a new
Warrant of like tenor, in lieu of such lost, stolen, destroyed or mutilated
Warrant; provided, however, that the original Registered Holder of this Warrant
shall not be required to provide any such bond of indemnity and may in lieu
thereof provide his agreement of indemnity. Any Warrant issued under the
provisions of this Section 6.8 in lieu of any Warrant alleged to be lost,
destroyed or stolen, or in lieu of any mutilated Warrant, shall constitute an
original contractual obligation on the part of the Company. This Warrant shall
be promptly canceled by the Company upon the surrender hereof in connection with
any exchange or replacement. The Registered Holder of this Warrant shall pay all
taxes (including securities transfer taxes) and all other expenses and charges
payable in connection with the preparation, execution and delivery of
replacement Warrant(s) pursuant to this Section 6.8.
6.9 Headings. The Article and Section and other headings herein are for
convenience only and are not a part of this Warrant and shall not affect the
interpretation thereof.
6.10 Successors and Assigns. Subject to applicable securities laws, this
Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors of the Company and the successors
and permitted assigns of Registered Holder. The provisions of this Warrant are
intended to be for the benefit of all Registered Holders from time to time of
this Warrant and shall be enforceable by any such Registered Holder or holder of
Warrant Shares.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name.
Dated: December 31, 2004
BPI INDUSTRIES INC.
By_____________________________
Name: Xxxxx Xxxxx
Title: Vice-President
Exhibit A
PURCHASE FORM
To: BPI Industries Inc. Dated:__________, 200__
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
The undersigned, pursuant to the provisions set forth in the attached
Warrant (No. ____), hereby irrevocably elects to purchase ________ shares of the
Common Stock covered by such Warrant.
The undersigned herewith makes payment of the full exercise price for such
shares at the price per share provided for in such Warrant, which is $_____ per
share in lawful money of the United States.
[___________________________________]
____________________________________
Name:_______________________________
Title:______________________________
Exhibit B
ASSIGNMENT
For value received, _____________________________, hereby sells, assigns and
transfers unto _______________________________ the within Warrant, together with
all right, title and interest therein and does hereby irrevocably constitute and
appoint attorney, to transfer said Warrant on the books of the Company, with
full power of substitution.
__________________________
Dated: ___________________, 200_
