REFINERY SCIENCE CORP. WARRANT TO PURCHASE COMMON STOCK
EXHIBIT
4.5
WARRANT
TO PURCHASE COMMON STOCK
| Warrant No.: __________________ |
Number
of
Shares:
___________
Warrant
Exercise Price: $15.00
Expiration
Date:
_____________, 2009
|
Date
of
Issuance: ______________, 2009
THIS
IS
TO CERTIFY that, for value received and subject to these terms and conditions,
_______________, or such person to whom this Warrant is transferred (the
“Holder”), is entitled to exercise this Warrant to purchase ______________ fully
paid and nonassessable shares of Refinery Science Corp., a Texas corporation
(the “Company”), $.001 par value per share, Common Stock (the “Warrant Stock”)
at a price per share of $15.00 (the “Exercise Price”) (such number of shares,
type of security and the Exercise Price being subject to adjustment as provided
below).
1.
Method
of Exercise.
Subject
to Section 4, this Warrant may be exercised by the Holder, at any time after
the
date of issuance, but not later than ______________, 2009 (the “Exercise
Period”), in whole by delivering to the Company (i) this Warrant certificate,
(ii) a certified or cashier’s check payable to the Company in the amount of the
Exercise Price multiplied by the number of shares for which this Warrant is
being exercised (the “Purchase Price”), and (iii) the Notice of Exercise
attached as Exhibit
A
duly
completed and executed by the Holder. Upon exercise, the Holder shall be
entitled to receive from the Company a stock certificate in proper form
representing the number of shares of Warrant Stock purchased.
2.
Delivery
of Stock Certificates; No Fractional Shares.
2.1
Within 14 days after the payment of the Purchase Price following the exercise
of
this Warrant, the Company at its expense shall issue in the name of and deliver
to the Holder a certificate or certificates for the number of fully paid and
nonassessable shares of Warrant Stock to which the Holder shall be entitled
upon
such exercise. The Holder shall for all purposes be deemed to have become the
holder of record of such shares of Warrant Stock on the date this Warrant was
exercised, irrespective of the date of delivery of the certificate or
certificates representing the Warrant Stock; provided that, if the date such
exercise is made is a date when the stock transfer books of the Company are
closed, such person shall be deemed to have become the holder of record of
such
shares of Warrant Stock at the close of business on the next succeeding date
on
which the stock transfer books are open.
2.2
No
fractional shares shall be issued upon the exercise of this Warrant. In lieu
of
fractional shares, the Company shall pay the Holder a sum in cash equal to
such
fraction multiplied by the Exercise Price.
3.
Covenants
as to Warrant Stock.
The
Company covenants that at all times during the Exercise Period there shall
be
reserved for issuance and delivery upon exercise of this Warrant such number
of
shares of Warrant Stock as is necessary for exercise in full of this Warrant
and, from time to time, it will take all steps necessary to amend its
Certificate of Incorporation to provide sufficient reserves of shares of Warrant
Stock. All shares of Warrant Stock issued pursuant to the exercise of this
Warrant will, upon their issuance, be validly issued and outstanding, fully
paid
and nonassessable, free and clear of all liens and other encumbrances or
restrictions on sale and free and clear of all preemptive rights, except
restrictions arising (i) under federal and state securities laws, (ii) not
by or
through the Company, or (iii) by agreement between the Company and the Holder
or
its successors.
4.
Adjustments;
Termination of Warrant Upon Certain Events.
4.1
Effect
of Reorganization -- Change in Control; Termination of Warrant.
Upon a
merger, consolidation, acquisition of all or substantially all of the property
or stock, liquidation or other reorganization of the Company (collectively,
a
“Reorganization”) during the Exercise Period, as a result of which the
stockholders of the Company receive cash, stock or other property in exchange
for their shares of Warrant Stock and the holders of the Company’s voting equity
securities immediately prior to such Reorganization together own less than
a
majority interest of the voting equity securities of the successor corporation
following such Reorganization, the Holder shall be given notice of such proposed
action as provided in Section 6. If the proposed action is approved according
to
applicable law by the shareholders of all corporations or other entities that
are parties to the proposed action, the Holder shall be so notified in writing
by the Company by registered or certified mail at least 10 business days before
its effectiveness. Notwithstanding the period of exercisability stated on the
face of this Warrant, this Warrant shall become forever null and void to the
extent not exercised on or before 5:00 p.m., Central Time, on the tenth business
day following the delivery of such notice.
4.2
Adjustments
for Stock Splits, Dividends.
If the
Company shall issue any shares of the same class as the Warrant Stock as a
stock
dividend or subdivide the number of outstanding shares of such class into a
greater number of shares, then, in either such case, the Exercise Price in
effect before such dividend or subdivision shall be proportionately reduced
and
the number of shares of Warrant Stock at that time issuable pursuant to the
exercise of this Warrant shall be proportionately increased; and, conversely,
if
the Company shall contract the number of outstanding shares of the same class
as
the Warrant Stock by combining such shares into a smaller number of shares,
then
the Exercise Price in effect before such combination shall be proportionately
increased and the number of shares of Warrant Stock at that time issuable
pursuant to the exercise or conversion of this Warrant shall be proportionately
decreased. Each adjustment in the number of shares of Warrant Stock issuable
shall be to the nearest whole share.
5.
Exchange
of Warrant; Lost or Damaged Warrant Certificate.
This
Warrant is exchangeable upon its surrender by the Holder at the office of the
Company. Upon receipt by the Company of satisfactory evidence of the loss,
theft, destruction or damage of this Warrant and either (in the case of loss,
theft or destruction) reasonable indemnification (including posting of a bond)
or (in the case of damage) the surrender of this Warrant for cancellation,
the
Company will execute and deliver to the Holder, without charge, a new Warrant
of
like denomination.
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6.
Notices
of Record Date, etc.
In the
event of a (i) reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company, or any transfer of all
or
substantially all the assets of the Company to, or consolidation or merger
of,
the Company with or into any person, or (ii) voluntary or involuntary
dissolution, liquidation or winding-up of the Company, the Company will mail
to
the Holder a notice of such event at least 10 business days prior to the date
specified in the notice.
7.
Miscellaneous.
7.1
Holder
as Owner.
The
Company may deem and treat the holder of record of this Warrant as the absolute
owner for all purposes regardless of any notice to the contrary.
7.2
No
Stockholder Rights.
This
Warrant shall not entitle the Holder to any voting rights or any other rights
as
a stockholder of the Company or to any other rights except the rights stated
herein; and no dividend or interest shall be payable or shall accrue in respect
of this Warrant or the Warrant Stock, until this Warrant is exercised.
7.3
Notices.
Unless
otherwise provided, any notice under this Warrant shall be given in writing
and
shall be deemed effectively given (i) upon personal delivery to the party to
be
notified, (ii) upon confirmation of receipt by fax by the party to be notified,
(iii) one business day after deposit with a reputable overnight courier, prepaid
for overnight delivery and addressed as set forth in subsection (iv) of this
Section 7.3, or (iv) three days after deposit with the United States Post
Office, postage prepaid, registered or certified with return receipt requested
and addressed to the party to be notified at the address indicated below, or
at
such other address as such party may designate by 10 days’ advance written
notice to the other party given in the foregoing manner.
| If to the Holder: |
To
the address last furnished
|
in
writing to the Company by the Holder
| If to the Company: |
0000
Xxxxxxxx Xxxxx
El
Paso,
Texas 79968
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
7.4
Amendments
and Waivers.
Any
term of this Warrant may be amended and the observance of any term may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Company and the Holder.
Any
amendment or waiver effected in accordance with this Section 9.4 shall be
binding on each future Holder and the Company.
7.5
Governing
Law; Jurisdiction; Venue.
This
Warrant shall be governed by and construed under the laws of the state of New
York without regard to principles of conflict of laws. The parties irrevocably
consent to the jurisdiction and venue of the state and federal courts located
in
New York, New York in connection with any action relating to this Warrant.
7.6
Successors
and Assigns; Transfer.
This
warrant shall inure to the benefit of and be binding on the respective
successors and assigns of the parties.
3
IN
WITNESS WHEREOF, the Company has executed this Warrant as of the date first
written above.
By:
___________________________________
Name:
____________________________
Title:
_____________________________
4
EXHIBIT
A
NOTICE
OF EXERCISE
The
undersigned hereby irrevocably elects to purchase all shares of Common Stock
of
Refinery Science Corp. (the “Company”) issuable upon the exercise of the
attached Warrant and requests that certificates for such shares be issued in
the
name of and delivered to the address of the undersigned, at the address stated
below.
Payment
enclosed in the amount of $_________________
Dated:
________________________
Name
of
Holder of Warrant: _____________________________________________
(please
print)
Address:
_____________________________
_____________________________
_____________________________
Telephone
No.: _________________________
E-mail
Address: ________________________
Signature:
______________________________________
5
ASSIGNMENT
For
value
received the undersigned sells, assigns and transfers to the transferee named
below the attached Warrant, together with all right, title and interest, and
does irrevocably constitute and appoint the transfer agent of Refinery Science
Corp. (the “Company”) as the undersigned’s attorney, to transfer said Warrant on
the books of the Company, with full power of substitution in the premises.
Dated:
_________________________________
Name
of
Holder of Warrant: ______________________________________________
(please
print)
Address:
________________________________________________________________
Signature:
______________________________________________________________
Name
of
transferee: _____________________________________________________
(please
print)
Address
of transferee: __________________________________________________
Telephone
No. of transferee: ____________________________________________
E-mail
Address of Transferee: ___________________________________________
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