EXHIBIT 10.2
EGPI FIRECREEK, INC.
NEITHER THIS WARRANT NOR THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, PLEDGED OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
Warrant Date:
4,000,000 January 30, 2006
EGPI FIRECREEK, INC.
Warrant Certificate
EGPI FIRECREEK, INC., ("EGPI"), certifies that, for value received, Xxxxxx
Xxxxxx, or registered assigns (the "Holder"), is the owner of a Warrant of EGPI
(the "Warrant"). The Warrant entitles the Holder to purchase from EGPI at any
time prior to the Expiration Date (as defined below) up to 4,000,000 shares of
Common Stock of EGPI. This Warrant is issued pursuant to an Extension and
Amendment Agreement, dated January 30, 2006 to a Corporate Advisory Agreement
between Xxxxxx Xxxxxx and EGPI. The exercise price for the Warrant shall be
$0.05 per share of Common Stock (the "Exercise Price"). The Warrant Holder has
paid $100 for this Warrant.
1. Vesting; Expiration Date; Exercise
1.1 VESTING. The Warrant granted hereunder shall be deemed fully vested,
i.e., become exercisable as of the date hereof.
1.2 EXPIRATION DATE. The Warrant shall expire three (3) years from date
hereof (the "Expiration Date.") After the Expiration Date, the Warrant shall
expire and be of no further force or effect.
1.3 MANNER OF EXERCISE. The Warrant is exercisable by delivery to EGPI of
the following (the "Exercise Documents"): (a) this Certificate (b) a written
notice of election to exercise the Warrant; and (c) by payment of the Exercise
Price in cash, by check in good funds, or by wire. Within 5 days following
receipt of the foregoing, EGPI shall execute and deliver to the Holder: (a) a
certificate or certificates representing the aggregate number of shares of
Common Stock purchased by the Holder, and (b) if less than all of the shares
covered by the Warrant evidenced by this Certificate is exercised, a new
certificate evidencing the Warrant not so exercised shall be provided to Holder.
2. Adjustments of Exercise Price and Number and Kind of Conversion
Shares
2.1 In the event that EGPI shall at any time hereafter (a) pay a dividend
in Common Stock or securities convertible into Common Stock; (b) subdivide or
split its outstanding Common Stock; (c) combine its outstanding Common Stock
into a smaller number of shares; (d) spin-off to its shareholders a subsidiary
or operating-business unit; then the number of shares to be issued immediately
after the occurrence of any such event shall be adjusted so that the Holder
thereafter may receive the number of shares of Common Stock or the equivalent
value it would have owned immediately following such action if it had exercised
the Warrant immediately prior to such action and the Exercise Price shall be
adjusted to reflect such proportionate increases or decreases in the number of
shares.
2.2 In case of any reclassification of the outstanding shares of Common
Stock (other than a change covered by Section 2.1 hereof or a change which
solely affects the par value of such shares) or in the case of any merger or
consolidation or merger in which EGPI is not the continuing corporation and
which results in any reclassification or capital reorganization of the
outstanding shares), the Holder shall have the right thereafter (until the
Expiration Date) to receive upon the exercise hereof, for the same aggregate
Exercise Price payable hereunder immediately prior to such event, the kind and
amount of shares of stock or other securities or property receivable upon such
reclassification, capital reorganization, merger or consolidation, by a Holder
of the number of shares of Common Stock obtainable upon the exercise of the
Warrant immediately prior to such event; and if any reclassification also
results in a change in shares covered by Section 2.1, then such adjustment shall
be made pursuant to both this Section 2.2 and Section 2.1.
The provisions of this Section 2.2 shall similarly apply to successive
reclassifications, capital reorganizations and mergers or consolidations, sales
or other transfers.
3. TRANSFER. Subject to compliance with applicable securities laws, the
Warrant is transferable on the books of EGPI maintained for such purpose by EGPI
in person, or by duly authorized attorney, upon surrender of this Certificate
properly endorsed and upon payment of any necessary transfer tax or other
governmental charge imposed upon such transfer. If less than all of the Warrant
evidenced by this Certificate is transferred, EGPI will, upon transfer, execute
and deliver to the Holder a new certificate evidencing the Warrant not so
transferred.
4. RESERVATION OF SHARES. EGPI shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock, such number
of shares of Common Stock as shall from time to time be issuable upon exercise
of the Warrant. If at any time the number of authorized but unissued shares of
Common Stock shall not be sufficient to permit the exercise of the Warrant, EGPI
shall promptly seek such corporate action as may necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall
be sufficient for such purpose.
5. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment in the
Exercise Price, or number or type of shares issuable upon exercise of the
Warrant, the Chief Financial Officer of EGPI shall compute such adjustment in
accordance with the terms of the Warrant and prepare a certificate setting forth
such adjustment and showing in detail the facts upon which such adjustment is
based, including a statement of the adjusted Exercise Price. EGPI shall promptly
send (by facsimile and by either first class mail, postage prepaid or overnight
delivery) a copy of each such certificate to the Holder.
6. LOSS OR MUTILATION. Upon receipt of evidence reasonably satisfactory
to EGPI of the ownership of and the loss, theft, destruction or mutilation of
this Certificate, and of indemnity reasonably satisfactory to it, and (in the
case of mutilation) upon surrender and cancellation of the Warrant, EGPI will
execute and deliver in lieu thereof a new Certificate of like tenor as the lost,
stolen, destroyed or mutilated Certificate.
7. Representations and Warranties of EGPI hereby represents and Warrant
to Holder that:
7.1 DUE AUTHORIZATION. All corporate action on the part of EGPI, its
officers, directors and shareholders necessary for (a) the authorization,
execution and delivery of, and the performance of all obligations of EGPI under
this Warrant, and (b) the authorization, issuance, reservation for issuance and
delivery of all of the Common Stock issuable upon exercise of this Warrant, has
been duly taken. This Warrant constitute a valid and binding obligation of EGPI
enforceable in accordance with their terms, subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency, moratorium, reorganization and
similar laws affecting creditors' rights generally and to general equitable
principles.
7.2
ORGANIZATION. EGPI is a corporation duly organized, validly existing
and in good standing under the laws of its incorporation and has all requisite
corporate power to own, lease and operate its property and to carry on its
business as now being conducted and as currently proposed to be conducted.
7.3
VALID ISSUANCE OF STOCK. Any shares of Common Stock issued upon
exercise of this Warrant will be duly and validly issued, fully paid, and
non-assessable.
7.4 GOVERNMENTAL CONSENTS. All consents, approvals, orders,
authorizations or registrations, qualifications, declarations or filings with
any federal or state governmental authority on the part of EGPI required in
connection with the consummation of the transactions contemplated herein have
been obtained.
8. NOTICES OF RECORD DATE.
In case:
8.1 EGPI shall take a record of the holders of its Common Stock (or other
stock or securities at the time receivable upon the exercise of this Warrant),
for the purpose of entitling them to receive any dividend or other distribution,
or any right to subscribe for or purchase any shares of stock of any class or
any other securities or to receive any other right; or
8.2
of any consolidation or merger of EGPI with or into another
corporation, any capital reorganization of EGPI, any reclassification of the
capital stock of EGPI, or any conveyance of all or substantially all of the
assets of EGPI to another corporation in which holders of EGPI's stock are to
receive stock, securities or property of another corporation; or
8.3 of any voluntary dissolution, liquidation or winding-up of EGPI; or
8.4 of any redemption or conversion of all outstanding Common Stock;
then, and in each such case, EGPI will mail or cause to be mailed to the Holder
a notice specifying, as the case may be, (a) the date on which a record is to be
taken for the purpose of such dividend, distribution or right, or (b) the date
on which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation, winding-up, redemption or conversion is to
take place, and the time, if any is to be fixed, as of which the holders of
record of Common Stock or (such stock or securities as at the time are
receivable upon the exercise of this Warrant), shall be entitled to exchange
their shares of Common Stock (or such other stock or securities), for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up. EGPI
shall use all reasonable efforts to ensure such notice shall be delivered at
least 15 days prior to the date therein specified.
9. SEVERABILITY. If any term, provision, covenant or restriction of the
Warrant is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of the Warrant shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
10. NOTICES. All notices, requests, consents and other communications
required hereunder shall be in writing and by first class mail or by registered
or certified mail, postage prepaid, return receipt requested, and (other than in
connection with the exercise of the Warrant) shall be deemed to have been duly
made when received or, if sent registered or certified mail, postage prepaid,
return receipt requested, on the third day following deposit in the mails: if
addressed to the Holder, at the last address of such Holder on the books of
EGPI; and if addressed to EGPI at EGPI FIRECREEK, INC., 0000 Xxxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxx or such other address as
it may designate in writing.
11. NO RIGHTS AS SHAREHOLDER. The Holder shall have no rights as a
shareholder of EGPI with respect to the shares issuable upon exercise of the
Warrant until the receipt by EGPI of all of the Exercise Documents. Except as
may be provided by Section 2 of this Certificate, no adjustment shall be
made for dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record date is
prior to the date EGPI receives all of the Exercise Documents.
EGPI FIRECREEK, INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------ Its:
Xxxxxx Xxxxxxxxx
Chairman and CFO
EXHIBIT "A" -TO THE WARRANT
NOTICE OF EXERCISE
(To be signed only upon exercise of the Warrant)
To:
EGPI FIRECREEK, INC.
The undersigned hereby elects to purchase shares of Common Stock (the
"Warrant Shares") of EGPI FIRECREEK, INC. ("EGPI"), pursuant to the terms of the
enclosed warrant certificate (the "Certificate"). The undersigned tenders
herewith payment of the exercise price pursuant to the terms of the Certificate.
The undersigned hereby represents and Warrant to, and agrees with, EGPI as
follows:
1. Holder is acquiring the Warrant Shares for its own account, for
investment purposes only.
2. Holder understands that an investment in the Warrant Shares involves
a high degree of risk, and Holder has the financial ability to bear the economic
risk of this investment in the Warrant Shares, including a complete loss of such
investment. Holder has adequate means for providing for its current financial
needs and has no need for liquidity with respect to this investment.
3. Holder has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an investment
in the Warrant Shares and in protecting its own interest in connection with this
transaction.
4. Holder understands that the Warrant Shares have not been registered
under the Securities Act or under any state securities laws. Holder is familiar
with the provisions of the Securities Act and Rule 144 thereunder and
understands that the restrictions on transfer on the Warrant Shares may result
in Holder being required to hold the Warrant Shares for an indefinite period of
time.
5. Holder agrees not to sell, transfer, assign, gift, create a security
interest in, or otherwise dispose of, with or without consideration
(collectively, "Transfer") any of the Warrant Shares except pursuant to an
effective registration statement under the Securities Act or an exemption from
registration. As a further condition to any such Transfer, except in the event
that such Transfer is made pursuant to an effective registration statement under
the Securities Act, if in the reasonable opinion of counsel to EGPI any Transfer
of the Warrant Shares by the contemplated transferee thereof would not be exempt
from the registration and prospectus delivery requirements of the Securities
Act, EGPI may require the contemplated transferee to furnish EGPI with an
investment letter setting forth such information and agreements as may be
reasonable requested by EGPI to ensure compliance by such transferee with the
Securities Act.
Each certificate evidencing the Warrant Shares will bear the following
legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE EXERCISED, SOLD, PLEDGED OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR UNLESS AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
Number of Warrant Exercised:
----------------
Dated:
[Name]
