EXHIBIT 10.1
ADVISORY SERVICE AGREEMENT
THIS ADVISORY SERVICE AGREEMENT (the "Agreement") is made this 1st day
of March 2006 by and between EGPI Firecreek, Inc. (the "Company") and Xxxxxx X.
Xxxxxxx III, 0000 Xxxx Xxxx Xxxxx Xxxxx Xxxxx, XX. 00000, (the "Advisor").
WHEREAS, Advisor and Advisor's personnel and contacts have experience
in advising corporate management, strategic planning, corporate development and
forecasting, marketing, structuring investor relations programs, contract
negotiations and performing general administrative duties for publicly-held
companies and developing state investment ventures.
NOW THEREFORE, in consideration of the mutual promises and conditions
set forth herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. ENGAGEMENT. The Company hereby engages Advisor as of the date hereof and
continuing until the termination as provided herein to provide or assist the
Company with the following:
Design and arrange public and investor relations campaigns for the company
Distribute company news and relevant information to market makers, financial
media outlets, selected internet stock pages/threads and the OTC analyst
community
Create advertisements for financial periodicals to enhance market awareness
programs
Write, edit and proof any and all correspondence related to public filings and
announcements on behalf of the Company
Distribute and disseminate public materials to investor's and shareholders
Present client to various media and periodical sources, when appropriate;
Interact with national
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and regional media outlets including appropriate trade journals
Lend assistance when requested to create any Corporate Overview and /or /Due
Diligence packages for dissemination to potential investor's, shareholder's and
client's
Create and develop a broker/lead campaign; Assist in the development of a
marketing strategy
Write, edit and proof all press releases as appropriate and in concert with
client milestones and newsworthy events
Consult with the company on general business and financial issue's
Perform due diligence presentations to market makers at the company's request
If necessary, negotiate or assist in the negotiation of source, distribution and
marketing agreements with third party sources
Attend e-commerce and other industry conferences on behalf of the company
If necessary, assist in the preparation and completion of all Securities and
Exchange Commission ("SEC") filings, including annual and quarterly reports,
registration statements and any other SEC filing deemed necessary
Create a virtual office complete with dedicated phone lines, fax lines and a
email address to allow more accessibility to the Company by the investment
public. The investment public will include broker's, industry analysts,
potential investor's and shareholder's. The virtual office would also provide
more flexibility to communicate through audio grams and conference calls either
between ourselves or to the general public/data base we will develop as time
progresses. Advisor will take responsibility for guaranteeing a 24hr. turnaround
time in response to information that needs to be sent, emails and verbal
responses to question's as related to general questions or press releases.
Advisor shall give any ongoing consulting support deemed necessary by client;
(collectively the "Services").
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2. TERM. Unless sooner terminated in accordance with the termination provisions
set forth in this Agreement, the term of this Agreement shall be for an initial
term of (6) six months commencing on the date hereof (the "Initial Term"), and
shall be automatically renewed for an additional term of (6) six months, unless
at least (30) thirty days prior to the end of the Initial Term either party
shall advise the other of its desire to terminate this Agreement (the
"Additional Term").
3. TIME AND EFFORT OF ADVISOR SERVICES. Advisor shall allocate such time and
assign such of Advisor's personnel as it deems necessary to complete the
Services to be provided under this Agreement.
Advisor agrees to allocate all necessary time and to dedicate its
services solely to the Company for a period of 90 day's beginning January 1,
2006. The Company agrees to provide any and all information and or documents
reasonably requested by Advisor and/or Advisor's personnel to assist in the
performance of the Services required hereunder.
4. LIMITATION OF ADVISORS LIABILITY. In the absence of willful malfeasance, bad
faith, negligence, or reckless disregard for the obligations and duties
hereunder by Advisor, neither Advisor nor Advisor's personnel shall be liable to
the Company or any of its subsidiaries, officers, directors or shareholders for
any act or omission in the course of or connected with rendering the Services,
including, but not limited to, losses that may be sustained in any corporate act
in any subsequent business opportunity undertaken by the Company as a result of
advice provided by Advisor or Advisor's personnel.
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5. ADVISORY SERVICES COMPENSATION. The Company shall pay to Advisor as
compensation for the services under this Agreement during the first six (6)
months of the initial term the amount of six thousand dollars (6,000) to set up
the virtual office. Advisor will send copies of all invoices used for such
office development and keep a schedule of such expenditures for audit of the set
up budget. Company shall also pay the first month's fee of five thousand dollars
($5,000) Thereafter, Advisor knowing the current budgetary restrictions on the
parent Company agrees that the monthly fees shall be accrued but not paid until
the Company closes on its next round of financing with a minimum of five hundred
thousand dollars ($500,000). Should the next financing be through any contact or
introduction made be Advisor then Advisor agrees to waive all additional monthly
fees against any finder's fee agreed to between Advisor and Company for
assisting in such financing, Company agrees that if and when it achieves further
financing of an aggregate minimum of five hundred thousand dollars ($500,000)
without any assistance from Advisor then it shall paid all accrued monthly fees
and shall then maintain agree monthly compensation. Before the end of the six
months during the initial term Company will notify Advisor if monthly fee will
be renewed for the second six months of the initial term of this agreement. The
Company shall also issue to the Advisor 1,500,000 (One and a Half Million)
warrants with the following strike prices: 500,000 warrants exercisable at
$0.022 cents per share, 500,000 warrants exercisable at $0.06 cents per share
and 500,000 warrants exercisable at $0.12 cents per share.
All 144 shares underlying the warrants in part or whole shall carry
unlimited piggyback registration rights. Upon the exercising of the underlying
shares of the warrants in part or whole, such shares upon their registration
shall convert into free trading shares of common stock.
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All monies as well as shares/warrant's shall be deemed fully earned as
of the date of the signing of this agreement.
6. COSTS AND EXPENSES. All third party costs and out-of-pocket expenses incurred
by Advisor in excess of $500.00 shall be reimbursed to Advisor within ten (10)
days of presentation of written notice to the Company. During the Initial Term
and Additional Term, Advisor shall provide the Company with quarterly statements
of the time, costs and out-of-pocket expenses incurred in performance of the
Services. Additionally, all expenses shall be pre approved by the Company in
advance to any monies being spent for reimbursement.
7. PLACE OF SERVICES. The Services to be provided hereunder shall be performed
in such place as Advisor, in its sole discretion, deems is the best location for
such Services and may include, but not be limited to the Advisor's offices, the
Company's offices or such other location as required for the particular service
to be performed.
8. INDEPENDENT CONTRACTOR. Advisor and Advisor's personnel will act as
independent contractors in the performance of the Services under this Agreement.
Accordingly, Advisor will be responsible for payment of all federal, state, and
local taxes on compensation paid under this Agreement, including income and
social security taxes, unemployment insurance, and any other taxes due relative
to Advisor's personnel, and any and all business license fees as may be
required. This Agreement neither expressly nor impliedly creates a relationship
of principal and agent, or employment and employer, between Advisor and
Advisor's personnel and the Company.
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Neither Advisor nor Advisor's personnel are authorized to enter into
any agreements on behalf of the Company. The Company expressly retains the right
to approve, in its sole discretion, each opportunity introduced by Advisor, and
to make all final decisions with respect to whether or not to accept or reject
any business opportunity suggested or introduced by Advisor or Advisor's
personnel.
9. REJECTED ASSET OPPORTUNITY OR BUSINESS OPPORTUNITY. If, during the Initial
Term of this Agreement or the Additional Term, the Company elects not to proceed
to acquire, participate or invest in any business opportunity identified and/or
selected by Advisor or Advisor's personnel, notwithstanding the time and expense
the Company may have incurred reviewing such transaction, such business
opportunity shall revert back to and become proprietary to Advisor, and Advisor
shall be entitled to acquire or broker the sale or investment in such rejected
business opportunity for its own account, or submit such assets or business
opportunity elsewhere. In such event, Advisor shall be entitled to any and all
profits or fees resulting from Advisor's purchase, referral or placement of any
such rejected business opportunity, or the Company's subsequent purchase or
financing with such business opportunity in circumvention of Advisor.
10. NO AGENCY EXPRESS OR IMPLIED. This Agreement neither expressly nor impliedly
creates a relationship of principal and agent between the Company and Advisor,
or employee and employer as between Advisor and Advisor's personnel and the
Company.
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11. TERMINATION. The Company and Advisor may terminate this Agreement at any
time with mutual consent and either party name give notice of termination thirty
(30) days prior to the Additional Term. Failing such mutual consent, without
prejudice to any other remedy to which the terminating party may be entitled, if
any, either party may terminate this Agreement with thirty (30) days written
notice under the following conditions:
(A) BY THE COMPANY.
(1) If during the Initial Term of this Agreement or the
Additional Term, Advisor is unable to provide the Services as
set forth herein for thirty (30) consecutive business days
because of illness, or other incapacity of Advisor's
personnel; or,
(2) If Advisor willfully breaches or neglects the duties required
to be performed hereunder.
(B) BY ADVISOR.
(1) If the Company breaches this Agreement or fails to make any
payments or provide information or documents required
hereunder; or,
(2) If the Company ceases business or sells a controlling
interest to a third party, or agrees to a consolidation or
merger of itself with or into another corporation, or enters
into such a transaction outside of the scope of this
Agreement, or sells substantially all of its
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assets to another corporation, entity or individual outside
the scope of this Agreement; or, (3) If the Company
subsequent to the execution hereof has a receiver appointed
for its business or assets, or otherwise becomes insolvent or
unable to timely satisfy its obligations in the ordinary
course of its business; or
(4) If the Company subsequent to the execution hereof institutes,
makes a general assignment for the benefit of creditors, has
instituted against it any bankruptcy proceeding for
reorganization or rearrangement of its financial affairs,
files a petition in a court of bankruptcy, or is adjudicated
a bankrupt; or
(5) If any of the disclosures made herein or subsequent hereto by
the Company to Advisor are determined to be materially false
or misleading.
In the event either party elects to terminate for cause or this Agreement is
terminated prior to the expiration of the Initial Term or if this Agreement is
terminated by mutual written agreement, the Company shall be responsible to pay
Advisor for unreimbursed expenses due hereunder.
12. INDEMNIFICATION. Subject to the provisions herein, the Company and Advisor
agree to indemnify, defend and hold each other harmless from and against all
demands, claims, actions, losses, damages, liabilities, costs and expenses,
including without
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limitation, interest, penalties and attorney's fees and expenses asserted
against or imposed or incurred by either party by reason of or resulting from
any action or a breach of any representation, warranty, covenant, condition, or
agreement of the other party to this Agreement.
13. REMEDIES. Any and all remedies available hereunder shall be cumulative and
nonexclusive and shall be in addition to any other remedy to which the parties
may be entitled.
14. MISCELLANEOUS.
(A) SUBSEQUENT EVENTS. Advisor and the Company each agree to notify the
other party if, subsequent to the date of this Agreement, either party incurs
obligations that could compromise its efforts and obligations under this
Agreement.
(B) AMENDMENT. This Agreement may be amended or modified at any time
and in any manner only by an instrument in writing executed by the parties
hereto.
(C) FURTHER ACTIONS AND ASSURANCES. At any time and from time to time,
each party agrees, at its or their expense, to take actions and to execute and
deliver documents as may be reasonably necessary to effectuate the purpose of
this Agreement.
(D) WAIVER. Any failure of any party to this Agreement to comply with
any of its obligations, agreements, or conditions hereunder may be waived in
writing by the party to whom such compliance is owed. The failure of any party
to this Agreement to enforce at any time of the provision of this Agreement
shall in no way be construed to be a waiver of any such provision or a waiver of
the right of such party thereafter to enforce each and every
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such provision. No waiver of any breach of or noncompliance with this Agreement
shall be held to be a waiver of any other or subsequent breach or noncompliance.
(E) ASSIGNMENT. Neither this Agreement nor any right created by it
shall be assignable by either party without the prior written consent of both
parties.
(F) NOTICES. Any notice or other communication required or permitted by
this Agreement must be in writing and shall be deemed to be properly given when
delivered in person to an officer of the other party, when deposited in the
United States mail for transmittal be certified or registered mail, postage
prepaid, or when deposited with a recognized courier service for transmittal, or
(G) when sent by facsimile transmission and such transmission is
evidenced by log as satisfactorily transmitted, and in each case provided that
the communication is addressed:
(1) In the case of the Advisor: Infinity Consulting Group, LLC
0000 Xxxx Xxxx Xxxxx
Xxxxx Xxxxx, XX. 00000
Xxxxxx X. Xxxxxxx, III,
Managing Director
(2) In the case of Company: EGPI/Firecreek Int'l, Inc.
0000 Xxxxx Xxxx Xxxx
Xxxx of Paradise Valley
Xxxxxx Xxxxxxxxx,
Chairman and CFO
or to such other person or address designated in writing by the Company or
advisor to receive notice and served on the other party in accordance with this
section.
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(H) HEADINGS. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(I) GOVERNING LAW. This Agreement was negotiated and its being
contracted for in Florida, and shall be governed by the laws of the State of
Florida. The parties expressly agree to venue in Broward County, Florida for any
and all actions commenced relative to this Agreement.
(J) BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors, and assigns.
(K) ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior agreements,
arrangements, or understandings between the parties relating to the subject
matter of this Agreement.
(L) SEVERABILITY. If any party of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
(M) COUNTERPARTS. A facsimile, telecopy, or other reproduction of this
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. The executed copy of this Agreement shall be valid
and binding upon a party when transmitted by facsimile to the other party. At
the request of any party hereto, all parties
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agree to execute an original of this Agreement, as well as, any facsimile,
telecopy or other reproduction hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date above written.
Date Signed March 3, 2006
/s/ /s/
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Infinity Consulting Group, LLC EGPI/Firecreek Int'l, Inc.
Xxxxxx X. Xxxxxxx III Xxxxxx Xxxxxxxxx
Managing director Chairman and CFO
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EXHIBITS "A-1" THROUGH "A-3"
TERMS OF WARRANTS - DATED MARCH 1, 2006
TO AN
ADVISORY SERVICE AGREEMENT
BETWEEN EGPI FIRECREEK, INC. AND XXXXXX X. XXXXXXX III;
(Attached on the Following Page)
EXHIBIT A-1
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:
500,000 March 1, 2006
EGPI FIRECREEK, INC.
Warrant Certificate
EGPI FIRECREEK, INC., ("EGPI"), certifies that, for value received, Xxxxxx
X. Xxxxxxx III, 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 500,000 shares
of Common Stock of EGPI. This Warrant is issued pursuant to an Advisory Services
Agreement between Xxxxxx X. Xxxxxxx III and EGPI. The exercise price for the
Warrant shall be $0.022 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 10 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:
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Xxxxxx Xxxxxxxxx
Its: 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]
EXHIBIT A-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:
500,000 March 1, 2006
EGPI FIRECREEK, INC.
Warrant Certificate
EGPI FIRECREEK, INC., ("EGPI"), certifies that, for value received, Xxxxxx
X. Xxxxxxx III, 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 500,000 shares
of Common Stock of EGPI. This Warrant is issued pursuant to an Advisory Services
Agreement between Xxxxxx X. Xxxxxxx III and EGPI. The exercise price for the
Warrant shall be $0.06 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 10 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:
-----------------------------------
Xxxxxx Xxxxxxxxx
Its: 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]
EXHIBIT A-3
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:
500,000 March 1, 2006
EGPI FIRECREEK, INC.
Warrant Certificate
EGPI FIRECREEK, INC., ("EGPI"), certifies that, for value received, Xxxxxx
X. Xxxxxxx III, 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 500,000 shares
of Common Stock of EGPI. This Warrant is issued pursuant to an Advisory Services
Agreement between Xxxxxx X. Xxxxxxx III and EGPI. The exercise price for the
Warrant shall be $0.12 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 10 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:
-----------------------------------
Xxxxxx Xxxxxxxxx
Its: 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]
