Exhibit 10.2
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") NOR UNDER ANY STATE SECURITIES LAW AND NEITHER THIS WARRANT NOR ANY
SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF MAY BE PLEDGED,
SOLD, ASSIGNED OR OTHERWISE TRANSFERRED UNTIL (1) A REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW HAS BECOME EFFECTIVE
WITH RESPECT THERETO, OR (2) RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL
TO THE EFFECT THAT REGISTRATION UNDER THE ACT OR APPLICABLE STATE SECURITIES
LAW IS NOT REQUIRED IN CONNECTION WITH THE PROPOSED TRANSFER.
No. _____ _______ Shares
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
OF
STARTECH ENVIRONMENTAL CORPORATION
This is to certify that, FOR VALUE RECEIVED, INTERCAPITAL GROUP,
LLC, a California limited liability company (the "Holder") is entitled to
purchase, subject to the provisions of this Warrant (this "Warrant"), from
Startech Environmental Corporation, a Colorado corporation (the "Company"),
at any time or from time to time during the period beginning on ____________,
2005 (the "Commencement Date"), until ____________, 2008 (the "Expiration
Date"), __________ fully paid, validly issued and nonassessable shares of
common stock, no par value, of the Company (the "Common Stock") at an
exercise price of $______ per share (subject to adjustment pursuant to
Section 2(b) hereof) (the "Exercise Price"). The shares of Common Stock
deliverable upon such exercise are hereinafter sometimes referred to as
"Warrant Shares."
This Warrant is being issued in connection with the private
placement of shares of the Company's common stock, no par value, in
accordance with the terms of a Securities Purchase and Registration Rights
Agreement dated as of March 21, 2005 by and between the Company and the
Holder (the "Purchase Agreement"). Any capitalized terms not otherwise
defined herein shall have the meanings set forth in the Purchase Agreement.
1. Exercise of Warrant. This Warrant may be exercised in whole at
any time or in part from time to time on or after the Commencement Date and
until 5:00 p.m. (Eastern Standard Time), on the Expiration Date; provided,
however, that if such day is a day on which banking institutions in the State
of Connecticut are authorized by law to close, then on the next succeeding
day which shall not be such a day. This Warrant may be exercised by
presentation and surrender hereof to the Company at its principal office, or
at the office of its stock transfer agent, if any, with the Purchase Form,
annexed hereto, duly executed and accompanied by payment of the Exercise
Price in the form of a wire transfer or Federal funds check for the number of
Warrant Shares specified in such form. As soon as practicable after each
such exercise hereof, the Company shall issue and deliver to the Holder a
certificate or certificates for the Warrant Shares issuable upon such
exercise, registered in the name of the Holder or its designee. If this
Warrant should be exercised in part only, the Company shall, upon surrender
of this Warrant for cancellation, execute and deliver a new Warrant
evidencing the rights of the Holder thereof to purchase the balance of the
Warrant Shares purchasable hereunder. Upon receipt by the Company of this
Warrant at its office, or by the stock transfer agent of the Company at its
office, if any, in proper form for exercise,
the Holder shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock transfer
books of the Company shall then be closed or that certificates representing
such shares of Common Stock shall not then be physically delivered to the
Holder.
2. Adjustment of Exercise Price and Number of Warrant Shares.
(a) In the event the Company shall, at any time or from time to
time after the Commencement Date, issue any shares of Common Stock as a stock
dividend to the holders of Common Stock, or subdivide or combine the
outstanding shares of Common Stock into a greater or lesser number of shares
(any such issuance, subdivision or combination being herein called a "Change
of Shares"), then, and thereafter upon each further Change of Shares, the
Exercise Price in effect immediately prior to such Change of Shares shall be
changed to a price (including any applicable fraction of a cent) determined
by multiplying (x) the Exercise Price in effect immediately prior thereto by
(y) a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such Change of Shares and the
denominator of which shall be the number of shares of Common Stock
outstanding immediately after giving effect to such Change of Shares. Such
adjustment shall be made successively whenever such an issuance is made.
(b) Upon each adjustment of the Exercise Price pursuant to
Section 2(a) hereof, the total number of shares of Common Stock purchasable
upon the exercise of this Warrant shall be such number of shares (calculated
to the nearest tenth) purchasable at the Exercise Price in effect immediately
prior to such adjustment multiplied by a fraction, the numerator of which
shall be the Exercise Price in effect immediately prior to such adjustment
and the denominator of which shall be the Exercise Price in effect
immediately after giving effect to such adjustment.
(c) In case of any reclassification, capital reorganization or
other change of outstanding shares of Common Stock, or in case of any
consolidation or merger of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the continuing
corporation or other entity and which does not result in any
reclassification, capital reorganization or other change of outstanding
shares of Common Stock), or in case of any sale or conveyance to another
corporation or other entity of the property of the Company as, or
substantially as, an entirety (other than a sale/leaseback, mortgage or other
financing transaction), the Company shall cause effective provision to be
made so that the Holder of this Warrant shall have the right thereafter, by
exercising this Warrant, to purchase the kind and number of shares of stock
or other securities or property (including cash) receivable upon such
reclassification, capital reorganization or other change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common
Stock that would have been purchased upon exercise in full of this Warrant
immediately prior to such reclassification, capital reorganization or other
change, consolidation, merger, sale or conveyance. Any such provision shall
include provision for adjustments that shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Section 2. The
Company shall not effect any such consolidation, merger or sale unless prior
to or simultaneously with the consummation thereof the successor (if other
than the Company) resulting from such consolidation or merger or the
corporation or other entity purchasing such assets or other appropriate
corporation or entity shall assume, by written instrument executed and
delivered to the Company, the obligation to deliver to the Holder of this
Warrant such shares of stock, securities or property (including cash) as, in
accordance with the foregoing provisions, the Holder may be entitled to
purchase and the other obligations of the Company under this Warrant. The
foregoing provisions shall similarly apply to successive reclassifications,
capital reorganizations and other changes of outstanding shares of Common
Stock and to successive consolidations, mergers, sales or conveyances.
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(d) Irrespective of any adjustments or changes in the Exercise
Price or the number of shares of Common Stock purchasable upon exercise of
this Warrant, this Warrant certificate shall continue to express the Exercise
Price per share and the number of shares of Common Stock purchasable
hereunder as the Exercise Price per share and the number of shares of Common
stock purchasable therefor as were expressed in this Warrant certificate when
the same was originally issued.
(e) After each adjustment of the Purchase Price pursuant to
this Section 2, the Company will promptly prepare a certificate signed by the
Chairman, the President or the Chief Financial Officer of the Company setting
forth: (1) the Exercise Price as so adjusted, (2) the number of shares of
Common Stock purchasable upon exercise of this Warrant after such adjustment,
and (3) a brief statement of the facts accounting for such adjustment. The
Company will promptly cause a copy of such certificate to be sent by ordinary
first class mail to the Holder of this Warrant at such Holder's last address
as it shall appear on the registry books of the Company. No failure to mail
such notice nor any defect therein or in the mailing thereof shall affect the
validity of any such adjustment.
3. Reservation of Shares. The Company shall at all times reserve
for issuance and/or delivery upon exercise of this Warrant such number of
shares of its Common Stock as shall be required for issuance and delivery
upon exercise of this Warrant.
4. Exchange, Transfer, Assignment of Loss of Warrant. This Warrant
is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its
stock transfer agent, if any, for other warrants of like tenor and of
different denominations entitling the holder thereof to purchase in the
aggregate the same number of shares of Common Stock purchasable hereunder.
Upon surrender of this Warrant to the Company at its principal office or at
the office of its stock transfer agent, if any, with the assignment form
annexed hereto duly executed and funds sufficient to pay any transfer tax,
the Company shall, without charge, execute and deliver a new Warrant in the
name of the assignee named in such instrument of assignment and this Warrant
shall promptly be canceled. As a condition of such assignment, however, such
assignee shall deliver to the Company an opinion of counsel to the effect
that registration of such transfer under the Securities Act of 1933, as
amended, and applicable state securities laws is not required. This Warrant
may be divided or combined with other warrants which carry the same rights
upon presentation hereof at the principal office of the Company or at the
office of its stock transfer agent, if any, together with a written notice
specifying the names and denominations in which new Warrants are to be issued
and signed by the Holder hereof. The term "Warrant" as used herein includes
any Warrants into which this Warrant may be divided or exchanged. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of reasonably satisfactory indemnification, and upon surrender
and cancellation of this Warrant, if mutilated, the Company will execute and
deliver a new Warrant of like tenor and date. Any such new Warrant executed
and delivered shall constitute an additional contractual obligation on the
part of the Company, whether or not this Warrant so lost, stolen, destroyed
or mutilated shall be at any time enforceable by anyone.
5. Restrictive Legend. Each Warrant Share, when issued, shall
include a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY OTHER
JURISDICTION. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN FORM,
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SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, THAT
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE
144 UNDER THE SECURITIES ACT.
THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT
HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF
THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR THE
PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF
SECURITIES IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100,
25102, OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS
OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON
THE QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
6. Holder Not Deemed Stockholder. The Holder of this Warrant shall
not, as such, be entitled to vote or to receive dividends or be deemed the
holder of Common Stock that may at any time be issuable upon exercise of this
Warrant for any purpose whatsoever, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any of the
rights of a stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action (whether upon
any recapitalization, issue or reclassification of stock, change of par value
or change of stock to no par value, consolidation, merger or conveyance or
otherwise), or to receive notice of meetings, or to receive dividends or
subscription rights, until the Holder shall have exercised this Warrant in
accordance with the provisions hereof.
7. Agreement of Warrant Holders. The Holder of this Warrant, by
such Holder's acceptance thereof, consents and agrees with the Company that:
(a) This Warrant is transferable only on the registry books of
the Company by the Holder thereof in person or by his attorney duly
authorized in writing and only if this Warrant certificate is surrendered at
the office of the Company, duly endorsed or accompanied by a proper
instrument of transfer satisfactory to the Company in its sole discretion; and
(b) The Company may deem and treat the person in whose name
this Warrant certificate is registered as the holder and as the absolute,
true and lawful owner of this Warrant for all purposes, and the Company shall
not be affected by any notice or knowledge to the contrary.
8. Governing Law. This Warrant shall be governed by and construed
in accordance with the laws of the State of Connecticut, without reference to
principles of conflict of laws.
9. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the Company and its respective successors and assigns, and
the registered Holder from time to time of this Warrant certificate. Nothing
in this Warrant is intended or shall be construed to confer upon any other
person any right, remedy or claim, in equity or at law, or to impose upon any
other person any duty, liability or obligation.
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10. Transfer Taxes. The issuance of certificates for shares of
Common Stock shall be made without charge for any tax in respect of such
issuance. However, if any such certificate is to be issued in a name other
than that of the Holder, the Company shall not be required to issue or
deliver any stock certificate or certificates unless and until the Holder has
paid to the Company the amount of any tax which may be payable in respect of
any transfer involved in such issuance or shall establish to the satisfaction
of the Company that such tax has been paid or is not due.
11. Certain Notices. In case at any time the Company shall propose
to:
(a) pay any dividend or make any distribution on shares of
Common Stock in shares of Common Stock or make any other distribution (other
than regularly scheduled cash dividends) to all holders of Common Stock; or
(b) issue any rights, warrants or other securities to all
holders of Common Stock entitling them to purchase any additional shares of
Common Stock or any other rights, warrants or other securities; or
(c) effect any reclassification or change of outstanding shares
of Common Stock, or any consolidation or merger with or into any corporation
or other entity in which the Company is not the surviving corporation or any
sale, lease or conveyance of all or substantially all of its assets; or
(d) effect any liquidation, dissolution or winding-up of the
Company (whether voluntary or involuntary);
then, and in any one or more of such cases, the Company shall give written
notice thereof, by certified mail, postage prepaid, to the Holder at the
Holder's address as it shall appear on the books of the Company, mailed at
least fifteen (15) days prior to (i) the date as of which the holders of
record of shares of Common Stock to be entitled to receive any such dividend,
distribution, rights, warrants or other securities are to be determined, or
(ii) the date on which any such reclassification, change of outstanding
shares of Common Stock, consolidation, merger, sale, lease, conveyance,
liquidation, dissolution or winding-up is expected to become effective and
the date as of which it is expected that holders of record of shares of
Common Stock shall be entitled to exchange their shares for shares of stock
or other securities or property, including cash, if any, deliverable upon
such reclassification, change of outstanding shares, consolidation, merger,
sale, lease, conveyance, liquidation, dissolution or winding-up.
12. Amendment. This Warrant may not be amended by the Company
without the prior written consent of the Holder; any amendment to which the
Holder so consents shall bind its successors and permitted transferees and
assigns.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has executed this Warrant as of
_____________, 2005.
STARTECH ENVIRONMENTAL CORPORATION
By:_________________________________
Xxxxxx X. Xxxxx
Chairman, Chief Executive Officer and
President
[SEAL]
Dated: ___________, 2005
Attest:
By:__________________________________
Xxxxx Xxxxxxx
Chief Financial Officer, Treasurer and Secretary
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PURCHASE FORM
-------------
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _________ shares of Common Stock and
hereby makes payment of $_________ in payment of the full exercise price
therefor.
INSTRUCTIONS FOR REGISTRATION OF STOCK
--------------------------------------
Name_________________________________________________________
(Please typewrite or print in block letters)
Address______________________________________________________
Social Security No./Taxpayer ID No.
_____________________________________________________________
Signature____________________________________________________
Dated________________________________________________________
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ASSIGNMENT FORM
---------------
FOR VALUE RECEIVED,_____________________ hereby sells, assigns
and transfers unto
Name___________________________________________________________
(Please typewrite or print in block letters)
Address________________________________________________________
the right to purchase shares Common Stock represented by this Warrant to the
extent of _______ shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint___________________ Attorney, to transfer the
same on the books of the Company with full power of substitution in the
premises.
Date:_____________________________
Signature_________________________
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