Exhibit 99.10
US Subscription Agreement
SUBSCRIPTION AGREEMENT, dated as of July 29, 2003 (this "Agreement"),
by and between BBJ Environmental Technologies, Inc. a Nevada corporation (the
"Company"), located at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx, XX 00000, and the
individual named on the signature page hereto (the "Stockholder").
WHEREAS, the Stockholder desires to contribute cash to the Company in
exchange for shares of common stock, par value 0.001 per share, of the Company
(the "Common Stock"); and
WHEREAS, simultaneously herewith, certain other persons are entering
into subscription agreements, substantially similar to this Agreement and dated
as of the date hereof;
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Contribution and Subscription. Pursuant to the terms and subject to the
conditions set forth in this Agreement, the Stockholder hereby
contributes $75,000 to the Company in exchange for 300,000 shares of
Common Stock. All payments being made by wire transfer shall be made to
the order of BBJ Environmental Technologies, Inc. and shall be wired to
the Company's bank account as follows:
For BBJ Environmental Technologies, Inc.
For further credit of BBJ Environmental Solutions, Inc.
Account Number: 7966309700
ABA Routing Number: 000000000
AmSouth Bank - Dolphin Village Branch #171
Attn: Xxxxx Xxxxx
0000 Xxxx Xxxx.
Xx. Xxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
2. Limitations on Transfer. The Stockholder acknowledges that it is aware
that since the shares of the Common Stock will not be, and the
Stockholder has no right to require that they be, registered under
the Securities Act of 1933, as amended (the "Securities Act"), such
securities may not be sold unless such sale is exempt from such
registration under said Securities Act. The Stockholder further
acknowledges that it shall be responsible for compliance with all
conditions on transfer imposed by any state blue sky or securities
law administrator.
3. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to, and covenants and agrees with, the
Company as follows:
a. This Agreement constitutes a valid and binding
agreement of Stockholder enforceable against it in accordance with
its terms, except as such enforceability may be limited by
applicable bankruptcy, moratorium, insolvency, reorganization,
fraudulent conveyance or other laws affecting the enforcement of
creditors' rights generally or by general equitable principles,
including, without limitation, those limiting the availability of
specific performance, injunctive relief and other equitable
remedies and those providing for equitable defenses.
b. The Stockholder has adequate means of providing
for its current needs and possible contingencies, it anticipates
no need now or in the foreseeable future to sell the shares of
Common Stock for which it hereby subscribes and it can afford the
loss of its entire investment in the Company.
c. The Stockholder has such knowledge and experience
in financial and business matters that it is capable of evaluating
the merits and risks of investment in the Company and of making an
informed investment decision.
d. The Stockholder will be the only owner,
beneficial or otherwise, of the shares of Common Stock being
subscribed for hereby.
e. The Stockholder has received, and read, and is
familiar with the Offering Memorandum of the Company dated July
21, 2003 and confirms that all documents, records and books which
the Stockholder has requested pertaining to the Stockholder's
proposed investment in the Company have been made available to it.
The Stockholder is aware that no federal or state agency has
passed upon the shares of Common Stock or made any finding or
determination concerning the fairness of this investment.
f. The Stockholder has had an opportunity to ask
questions of, and receive answers from, representatives of the
Company concerning the terms and conditions of this investment,
and all such questions have been answered to the full satisfaction
of the Stockholder. The Stockholder understands that no person
other than the Company has been authorized to make any
representation and if made, such representation may not be relied
on unless it is made in writing and signed by the Company. The
Company has not, however, rendered any investment advice to the
Stockholder with respect to the suitability of an investment in
the Shares of Common Stock.
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g. The shares of Common Stock for which the
Stockholder hereby subscribes will be acquired for the
Stockholder's own account for investment. The Stockholder intends
to hold the Shares of Common Stock for indefinitely and it is not
acquiring the Shares of Common Stock with a view toward
distribution in a manner which would require registration under
the Securities Act, and it does not presently have any reasons to
anticipate any change in its circumstances or other particular
occasion or event which would cause it to sell such Shares of
Common Stock.
h. The Stockholder is aware that: (i) an investment
in the Company involves a high degree of risk; and (ii) no
federal, state, local or foreign income tax consequences which may
be relevant to it are discussed in any documents provided in
connection with the acquisition of Shares of Common Stock.
i. The Stockholder has received no representations
or warranties from the Company other than those furnished in
writing and signed by the Company.
j. The Stockholder (i) has the capacity to purchase
and hold the Shares of Common Stock and represents that the
acquisition of the Shares of Common Stock will not result in any
breach of, or violation of the terms or provisions of, or
constitute a default under, any indenture or other agreement or
instrument by which the Stockholder or the Stockholder's property
is bound, or violate any applicable law, regulation or court
decree; (ii) has obtained such tax advice that the Stockholder has
deemed necessary; and (iii) represents that the Stockholder's
residence is as set forth on the signature page hereof.
k. No consent, approval or authorization of, or
filing, registration or qualification with, any court or
governmental authority on the part of the Stockholder is required
for the execution and delivery of this Agreement by the
Stockholder and the performance of the Stockholder's obligations
and duties hereunder.
l. The Stockholder understands that the Company will
have the right to rescind the subscription of any investor if any
of the representations, warranties, covenants, or agreements
contained herein are found to be misleading, false, or incorrect.
m. The Stockholder has not paid, and will not pay, a
commission, finder's fee, or other selling cost or fee to any
person in connection with its subscription.
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n. The Stockholder is an "accredited investor" as
such term is defined in Regulation D of the Act. Accredited
Investors include, but are not limited to:
(i) Any organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000;
(ii) Any director, executive officer, or general partner of
the issuer of the securities being offered or sold, or any director, executive
officer, or general partner of a general partner of that issuer;
(iii) Any natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of his purchase exceeds
$1,000,000;
(iv) Any natural person who had an individual income in excess
of $200,000 in each of the two most recent years or joint income with that
person's spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current year;
(v) Any entity in which all of the equity owners are
accredited investors; or
(vi) Any bank as defined in Section 3(a)(2) of the Act
(defined below), or savings and loan association or other institution as defined
in Section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary
capacity.
o. The Stockholder acknowledges that any
certificate(s) for shares received pursuant to this Agreement will
bear the following legend:
THE SECURITIES COVERED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND MAY NOT BE OFFERED OR SOLD EXCEPT IN ACCORDANCE WITH
REGULATIONS UNDER THE SECURITIES ACT, PURSUANT TO REGISTRATION
OF THE SECURITIES UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
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4. Representation and Warranties of the Company. Except as expressly set
forth herein, neither the officers or directors of the Company nor
the Company makes any representation, warranty, covenant or agreement
regarding the Company or its respective businesses, operations,
properties or assets or those of their subsidiaries or any other
matter, and neither the officers or directors nor the Company shall
have any liability to the Stockholder regarding any of the foregoing
except to the extent expressly provided herein.
5. Indemnification. The Stockholder acknowledges that it understands the
meaning and legal consequences of the representations and warranties
in Paragraph 3 hereof, and hereby agrees to indemnify and hold
harmless the Company, and its officers, directors and affiliates,
from and against any and all loss, damage, or liability due to, or
arising out of, a breach of any such representations or warranties.
Notwithstanding the foregoing, however, no representation, warranty,
acknowledgment, or agreement made herein by the Stockholder shall, in
any manner, be deemed to constitute a waiver of any rights granted to
the Stockholder under federal or state securities laws.
6. No Third Party Beneficiaries. Except for with respect to the rights of
the indemnified parties under Paragraph 5, nothing in this Agreement,
expressed or implied, is intended to confer upon any creditor or any
other person, other than the parties hereto or their respective
successors, any rights, remedies, benefits, obligations or
liabilities of any nature whatsoever under or by reason of this
Agreement.
7. Miscellaneous.
a. This Agreement may not be modified, waived or
terminated except by an instrument in writing, signed by a party
against whom enforcement of such modification, waiver, or
termination is sought.
b. Except as otherwise provided herein, this
Agreement shall be binding upon, and inure to the benefit of the
parties hereto and their heirs, executors, administrators,
successors, legal representatives, and permitted assigns, and the
agreements, representations, warranties, covenants and
acknowledgments contained herein shall be deemed to be made by,
and be binding upon, such heirs, executors, administrators,
successors, legal representatives and permitted assigns.
c. This Agreement shall be construed in accordance
with, and governed in all respects by the laws of the State of
Nevada applicable to contracts made and to be performed wholly
within the State of Nevada.
d. This Agreement may be executed in one or more
counterparts and by different parties in separate counterparts,
with the same
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effect as if all parties hereto had signed the same document. All
counterparts so executed and delivered shall be construed together
and shall constitute one and the same agreement.
e. All the agreements, representations and
warranties made by the Stockholder in this Agreement shall survive
the acceptance of the Stockholder's subscription by the Company.
Unless the Stockholder notifies the Company in writing to the
contrary before the closing of the offering, all the
representations and warranties of the Stockholder contained in
this Agreement will be deemed to have been reaffirmed and
confirmed as of the closing of the offering, taking into account
all information received by the Stockholder.
f. The Stockholder agrees that in the event further
action or execution of documents is required of the Stockholder,
the Stockholder will take any and all such actions and execute any
such documents as are necessary or appropriate in connection with
the business of the Company.
g. This Agreement constitutes the entire agreement
of the Stockholder and the Company relating to the matters
contained herein, and supersedes all prior contracts or
agreements, whether oral or written.
h. Common nouns and pronouns shall be deemed to
refer to the masculine, feminine, neuter, singular and plural, as
the identity of the person may in the context require.
[Remainder Intentionally Left Blank]
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IN WITNESS WHEREOF, the Stockholder has executed this Subscription
Agreement as of the date first written above.
By:/s/ Xxxxxxxx Xxxxxxxxx IV
--------------------------------------
Name: Xxxxxxxx Xxxxxxxxx IV as trustee for
Xxxxxxxx Xxxxxxxxx III Trust Dated 4/5/99
FBO X. Xxxxxxxxx XX
Address:
The Company hereby accepts the foregoing contribution and subscription and
acknowledges receipt of the purchase price of the date set forth thereon.
BBJ ENVIRONMENTAL TECHNOLOGIES, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title:
NEITHER THE WARRANTS NOR THE SHARES OF COMMON STOCK TO BE ISSUED UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, NOR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND WERE AND WILL BE
OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND SUCH LAWS. THE SECURITIES MAY NOT BE SOLD, PLEDGED,
ASSIGNED, OR HYPOTHECATED, EXCEPT IN A TRANSACTION REGISTERED UNDER SUCH ACTS OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACTS. NO
OFFER OR SALE OF THE SECURITIES OFFERED HEREBY MAY BE MADE IN THE UNITED STATES,
OR TO OR FOR, THE ACCOUNT OR BENEFIT OF A "U.S. PERSON" (AS THAT TERM IS DEFINED
IN REGULATION S OF THE SECURITIES ACT) DURING ANY APPLICABLE "DISTRIBUTION
COMPLIANCE PERIOD" (AS THAT TERM IN DEFINED IN REGULATION S OF THE SECURITIES
ACT) IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITES
ACT. FURTHER, NO HEDGING TRANSACTION INVOLVING THESE SECURITIES MAY BE CONDUCTED
DURING SUCH DISTRIBUTION COMPLIANCE PERIOD UNLESS IN COMPLIANCE WITH THE
REGISTRATION OR EXEMPTION PROVISIONS OF THE SECURITIES ACT.
WARRANT
For the Purchase of Shares of Common Stock of
BBJ Environmental Technologies, Inc.
a Nevada corporation
Void After 5:00 p.m. Eastern Standard Time on July 31, 2005.
Warrant to Purchase
100,000 Shares
THIS WARRANT CERTIFIES THAT, for value received, XXXXXXXX XXXXXXXXX IV,
Trustee, for XXXXXXXX XXXXXXXXX III TR, DTD 4/5/99 FBO X. XXXXXXXXX XX, a trust,
or its registered assigns (the "Holder") is entitled to acquire from BBJ
Environmental Technologies, Inc., a Nevada corporation (the "Company"), an
aggregate of One Hundred Thousand (100,000) shares of fully paid, nonassessable
shares of Common Stock, par value $0.001 per share, of the Company ("Common
Stock") at any time on or after the Offering Date (as defined below) and on or
prior to 5:00 p.m. Eastern Standard Time on July 31, 2005 (the "Expiration
Date"), at such price and upon such terms and conditions as set forth herein. If
not exercised prior to the Expiration Date, this Warrant and all rights granted
under this Warrant shall expire and lapse.
The number and character of the securities purchasable upon exercise of
this Warrant and the Purchase Price (defined below) are subject to adjustment as
provided in Section 5 hereof. The term "Warrant" as used herein shall include
this Warrant and any warrants issued in substitution for or replacement of this
Warrant, or any warrant into which this Warrant may be divided or exchanged. The
Common Stock purchasable upon exercise of this Warrant shall be referred to
hereinafter collectively as the "Warrant Shares."
1. Exercise; Issuance of Certificates; Payment for Shares.
(a) Purchase Price. Subject to adjustment as provided in Section 5
hereof, the purchase price of each Warrant Share issuable upon exercise of this
Warrant shall be equal to $0.25 per share ("Purchase Price").
(b) Warrant Exercise. The purchase rights represented by this
Warrant may be exercised by the Holder, in whole or in part, at any time, and
from time to time after the first date on which the Company has issued shares of
Common Stock to the Holder under a Subscription Agreement dated the date hereof
between the Company and the Holder (the "Offering Date") and prior to the
Expiration Date, by the surrender and presentment of this Warrant accompanied by
a duly executed Notice of Exercise in the form attached hereto (the "Exercise
Notice"), together with the payment of the aggregate Purchase Price (the
"Aggregate Purchase Price") for the number of Warrant Shares specified in the
Exercise Notice in the manner specified in Section 1(d) hereof, all of which
shall be presented to the Company, at its principal office as set forth on the
signature page of this Warrant, or at such other place as the Company may
designate by notice in writing to the Holder.
(c) Conditions to Acquisition of Warrant Shares. The Company's
obligation to sell the Warrant Shares to the Holder upon exercise of this
Warrant is subject to the conditions that (i) no preliminary or permanent
injunction or other order against the acquisition, purchase, issuance, or
delivery of the Warrant Shares issued by any federal, state, or foreign court of
competent jurisdiction shall be in effect, and (ii) if the Holder is required by
law, rule, or regulation promulgated by any governmental entity to comply with
or seek approvals from any governmental entity prior to purchasing the Warrant
Shares, such compliance or approvals must have been achieved or obtained by the
Holder and proof thereof furnished to the Company; provided, however, that any
failure by the Company to sell Warrant Shares to the Holder as a result of any
of the foregoing conditions shall not affect or prejudice the Holder's right to
acquire such Warrant Shares upon the subsequent satisfaction of such conditions.
(d) Payment of Purchase Price. The Aggregate Purchase Price of the
Warrant Shares being acquired upon exercise of this Warrant shall be paid by the
Holder to the Company by delivery of a certified bank or cashier's check payable
to the order of the Company, or by wire transfer of immediately available United
States funds, in the amount of the Aggregate Purchase Price which shall be
determined by multiplying the Purchase Price by the number of Warrant Shares
specified in the Exercise Notice to be purchased upon such exercise.
(f) Issuance of Certificates. As soon as practicable after full or
partial exercise of this Warrant, the Company at its expense (including, without
limitation, the payment by it of all taxes and governmental charges applicable
to such exercise and issuance of Warrant
Shares) shall cause to be issued in the name of and delivered to the Holder or
such other persons as directed by the Holder, a certificate or certificates for
the total number of Warrant Shares for which this Warrant is being exercised in
such denominations as instructed by the Holder, together with any other
securities and property to which the Holder is entitled upon exercise under the
terms of this Warrant. This Warrant shall be deemed to have been exercised, and
the Warrant Shares acquired thereby shall be deemed issued, and the Holder or
any person(s) designated by the Holder shall be deemed to have become holders of
record of such Warrant Shares for all purposes, as of the close of business on
the date that this Warrant, the duly executed and completed Exercise Notice, and
full payment of the Aggregate Purchase Price has been presented and surrendered
to the Company in accordance with the provisions of Section 1(b) hereof,
notwithstanding that the stock transfer books of the Company may then be closed.
In the event this Warrant is only partially exercised, a new Warrant evidencing
the right to acquire the number of Warrant Shares with respect to which this
Warrant shall not then have been exercised, shall be executed, issued and
delivered by the Company to the Holder simultaneously with the delivery of the
certificates representing the Warrant Shares so purchased.
2. Shares Fully Paid; Reservation of Shares. The Company hereby agrees
that it will at all times on and after the Offering Date and on and prior to the
Expiration Date have authorized and will reserve and keep available, solely for
issuance and delivery to the Holder, that number of shares of its Common Stock
(or other securities and property) that may be required from time to time for
issuance and delivery upon the exercise of this Warrant. All Warrant Shares when
issued in accordance with this Warrant shall be duly and validly issued, shall
be fully paid and nonassessable, free and clear of any claim, lien, encumbrance,
or security interest of any kind whatsoever, and free from all preemptive rights
of any security holders of the Company. The Company shall take all action as may
be necessary to assure that such Warrant Shares (and any other securities and
property) may be issued and delivered as provided herein without violation of
any applicable law or regulation, or of any requirements, of any domestic
securities exchange or inter-dealer quotation system upon which the Common Stock
may be listed; provided, however, that the Company shall not be required to
effect a registration under federal, state, foreign or any other securities
laws. The Company will not take any action which would result in any adjustment
of the Purchase Price (as described in Section 5 hereof) if the total number of
Warrant Shares issuable after such action upon exercise of all the outstanding
Warrants, together with all the Common Stock then outstanding and all Common
Stock issuable upon exercise of all other options and warrants and upon
conversion of all convertible securities then outstanding, would exceed the
total number of shares of Common Stock then authorized by the Company's
Certificate of Incorporation, as amended.
3. Exchange, Assignment, or Loss of Warrant.
(a) This Warrant is exchangeable, without expense other than as
provided in this Section 3, at the option of the Holder upon presentation and
surrender hereof to the Company for other Warrants of different denominations
entitling the Holder thereof to acquire in the aggregate the same number of
Warrant Shares that may be acquired hereunder.
(b) All of the covenants and provisions of this Warrant by or for the
benefit of the Holder shall be binding upon and shall inure to the benefit of,
its successors and permitted assigns hereunder. This Warrant may be sold,
transferred, assigned, or hypothecated only in compliance with Section 7 herein.
If permitted under Section 7, any such assignment shall be made by surrender of
this Warrant to the Company, together with a duly executed assignment in the
form attached hereto ("Assignment Form"), whereupon the Company shall, without
charge, execute and deliver a new Warrant containing the same terms and
conditions of this Warrant in the name of the assignee as named in the
Assignment Form, and this Warrant shall be cancelled at that time. This Warrant,
if properly assigned, may be exercised by a new Holder without first having the
new Warrant issued.
(c) This Warrant may be divided or combined with other Warrants that
carry the same rights upon presentation and surrender of this Warrant at the
office of the Company, together with a written notice signed by the Holder,
specifying the names and denominations in which new Warrants are to be issued.
(d) The Company will execute and deliver to the Holder a new Warrant
of like tenor and date upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction, or mutilation of this
Warrant; provided, that (i) in the case of loss, theft, or destruction, the
Company receives a reasonably satisfactory indemnity or bond, or (ii) in the
case of mutilation, the Holder shall provide and surrender this Warrant to the
Company for cancellation.
(e) Any new Warrant executed and delivered by the Company in
substitution or replacement of this Warrant shall constitute a contractual
obligation of the Company regardless of whether this Warrant was lost, stolen,
destroyed, or mutilated, and shall be enforceable by any Holder thereof.
(f) The Holder shall pay all transfer and excise taxes applicable to
any issuance of new Warrants under this Section 3.
4. Rights of the Holder. The Holder by virtue hereof shall not be
entitled to any rights of a shareholder in the Company (including, without
limitation, rights to receive dividends, vote or receive notice of meetings) or
otherwise deemed to be a shareholder of the Company, either at law or equity,
except as specifically provided for herein. The Company covenants, however, that
for so long as this Warrant is at least partially unexercised, it will furnish
the Holder with copies of all reports and communications furnished to the
shareholders of the Company. The rights of the Holder are limited to those
expressed in this Warrant and are not enforceable against the Company except to
the extent set forth herein.
5. Adjustment of Purchase Price and Number of Warrant Shares. The number
and kind of securities and other property that may be acquired upon the exercise
of this Warrant and the Purchase Price shall be subject to adjustment, from time
to time, upon the happening of any of the following events:
(a) Dividends, Subdivisions, Combinations, or Consolidations of
Common Shares.
(i) In the event that the Company shall declare, pay, or make
any dividend upon its outstanding Common Stock payable in Common Stock or shall
effect a subdivision of the outstanding shares of Common Stock into a greater
number of shares of Common Stock, then the number of Warrant Shares that may
thereafter be purchased upon the exercise of the rights represented hereby shall
be increased in proportion to the increase in the number of outstanding shares
of Common Stock through such dividend or subdivision, and the Purchase Price
shall be decreased in such proportion. In case the Company shall at any time
combine the outstanding shares of Common Stock into a smaller number of shares
of Common Stock, the number of Warrant Shares that may thereafter be acquired
upon the exercise of the rights represented hereby shall be decreased in
proportion to the decrease through such combination and the Purchase Price shall
be increased in such proportion.
(ii) If the Company declares, pays, or makes any dividend or
other distribution upon its outstanding Common Stock payable in securities or
other property (excluding cash dividends and dividends payable in shares of
Common Stock, but including, without limitation, shares of any other class of
the Company's stock or stock or other securities convertible into or
exchangeable for Common Stock or any other class of the Company's stock or other
interests in the Company or its assets ("Convertible Securities")), the Holder
of this Warrant shall be entitled to exercise this Warrant and, with respect to
any Warrant Shares so acquired, shall be entitled to all the rights of the other
holders of shares of Common Stock with respect to any such distribution. If the
Holder does not exercise this Warrant prior to the record date relating to a
distribution under this Section 5(a)(ii), then such Holder shall not be entitled
to such distribution.
(b) Effect of Reclassification, Reorganization, Consolidation,
Merger, or Sale of Assets.
(i) Upon the occurrence of any of the following events, the
Holder of this Warrant shall be entitled to exercise this Warrant and, with
respect to any Warrant Shares so acquired, shall be entitled to all the rights
of the other holders of shares of Common Stock with respect to receipt of shares
of stock and other securities, property, and interests that are issued or
payable in connection therewith: (A) reclassification, capital reorganization,
or other change of the outstanding shares of Common Stock (other than a change
as a result of an issuance of shares of Common Stock under Section 5(a)), (B)
consolidation or merger of the Company with or into another corporation or
entity (other than a consolidation or merger subject to Section 5(b)(ii) below,
or in which the Company is the continuing corporation and that does not result
in any reclassification, capital reorganization or other change of the
outstanding Common Stock or the Warrant Shares issuable upon exercise of this
Warrant), or (C) spin-off of assets, a subsidiary, or any affiliated entity. The
foregoing provisions of this Section 5(b)(i) shall similarly apply to successive
reclassifications, capital reorganizations and similar changes of shares of
Common Stock and to successive consolidations, mergers, spin-offs, sales, leases
or exchanges. If the Holder does not exercise this Warrant prior to the record
date relating to an event described in
this Section 5(b)(i), then the Holder shall not be entitled to the benefits
accruing to holders of the shares of Common Stock, except as may be provided in
Section 5(b)(ii) below.
(ii) If any sale, lease, pledge, mortgage, conveyance, or
exchange of all, or substantially all, of the Company's assets or business or
any dissolution, liquidation or winding up of the Company (a "Termination of
Business") shall be proposed, the Company shall deliver written notice to the
Holder of this Warrant in accordance with Section 6 below as a condition
precedent to the consummation of that Termination of Business. If the result of
the Termination of Business is that shareholders of the Company are to receive
securities or other interests of a successor entity, the Company shall cause an
effective provision to be made so that the Holder shall have the right
thereafter, by exercise of this Warrant, to acquire for the Aggregate Purchase
Price described in this Warrant the kind and amount of securities or other
interests as would be issuable or payable with respect to or in exchange for the
number of Warrant Shares that are then purchasable pursuant to this Warrant as
if such Warrant Shares had been issued to the Holder immediately prior to such
event. However, if the result of the Termination of Business is that
shareholders of the Company are to receive money or property other than
securities or other interests in a successor entity, the Holder of this Warrant
shall be entitled to exercise this Warrant and, with respect to any Warrant
Shares so acquired, shall be entitled to all of the rights of the other holders
of shares of Common Stock with respect to any distribution by the Company in
connection with the Termination of Business. In the event no successor entity is
involved, all acquisition rights under this Warrant shall terminate at the close
of business on the date as of which shareholders of record of the shares of
Common Stock shall be entitled to participate in a distribution of the assets of
the Company in connection with the Termination of Business; provided, that, in
no event shall that date be less than 30 days after delivery to the Holder of
this Warrant of the written notice described above and in Section 6. If the
termination of acquisition rights under this Warrant is to occur as a result of
the event at issue, a statement to that effect shall be included in that written
notice.
(c) Purchase Price Adjustments. Except as otherwise provided in this
Section 5, upon any adjustment of the Purchase Price, the Holder shall be
entitled to purchase, based upon the new Purchase Price, the number of shares of
Common Stock, calculated to the nearest full share, obtained by multiplying the
number of Warrant Shares that may be acquired pursuant to this Warrant
immediately prior to the adjustment of the Purchase Price by the Purchase Price
in effect immediately prior to its adjustment and dividing the product so
obtained by the new Purchase Price.
(d) Application of this Section. The provisions of this Section 5
shall apply to successive events that may occur from time to time but shall only
apply to a particular event if it occurs prior to the expiration of this Warrant
either by its terms or by its exercise in full.
(e) Fractional Shares. No fractional Warrant Shares or shares of
Common Stock or scrip representing fractional shares of Common Stock shall be
issued upon the exercise of this Warrant. In the event that an adjustment in the
number of shares of Common Stock issuable upon exercise of this Warrant made
pursuant to this Section 5 hereof results in a number of shares issuable upon
exercise which includes a fraction, at the Holder's election, this Warrant
may be exercised for the next larger whole number of shares or the Company shall
make a cash payment equal to that fraction multiplied by the current market
value of that share.
(f) Company-Held Shares. For purposes of Sections 5(a) above, Common
Stock owned or held at any relevant time by, or for the account of, the Company
in its treasury or otherwise, shall not be deemed to be outstanding for purposes
of the calculation and adjustments described therein.
6. Notice to the Holder.
(a) If, prior to the expiration of this Warrant either by its terms
or by exercise in full, any of the following shall occur: (i) the Company shall
declare a dividend or authorize any other distribution on its Common Stock,
including those of the type identified in Section 5(a) hereof; (ii) any
reclassification, reorganization, or similar change of the shares of Common
Stock, or any consolidation or merger to which the Company is a party, or the
sale, lease, pledge, mortgage, exchange, or other conveyance of all or
substantially all of the assets of the Company; (iii) the voluntary or
involuntary dissolution, liquidation or winding up of the Company; or (iv) any
purchase, retirement or redemption by the Company of its Common Stock; then, and
in any such case, the Company shall deliver to the Holder written notice thereof
at least 20 days prior to the earliest applicable date specified below with
respect to which notice is to be given, which notice shall state the following:
(x) the date on which a record is to be taken for the purpose of such dividend,
distribution, or rights, or, if a record is not to be taken, the date as of
which the shareholders of record of the Common Stock to be entitled to such
dividend, distribution, or rights are to be determined; (y) the date on which
such reclassification, reorganization, consolidation, merger, sale, lease,
pledge, mortgage, exchange, transfer, dissolution, liquidation, winding up or
purchase, retirement, or redemption is expected to become effective, and the
date, if any, as of which the Company's holders of record of the Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, reorganization, consolidation,
merger, sale, lease, pledge, mortgage, exchange, transfer, dissolution,
liquidation, winding up, purchase, retirement, or redemption; and (z) if any
matters referred to in the foregoing clauses (x) and (y) are to be voted upon by
holders of shares of Common Stock, the date as of which those shareholders to be
entitled to vote are to be determined.
(b) Upon the happening of an event requiring adjustment of the
Purchase Price or the kind or amount of securities or property purchasable
hereunder, the Company shall forthwith give notice to the Holder which indicates
the event requiring the adjustment, the adjusted Purchase Price and the adjusted
number of Warrant Shares that may be acquired or the kind and amount of any such
securities or property so purchasable upon exercise of this Warrant, as the case
may be, and setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. The Company's independent public
accountant shall determine the method of calculating the adjustment and shall
prepare a certificate setting forth such calculations, the reason for the
methodology chosen, and the facts upon which the calculation is based. Such
certificate shall accompany the notice to be provided to the Holder pursuant to
this Section 6(b).
7. Transfer to Comply with the Securities Act.
(a) This Warrant and the Warrant Shares or any other security issued
or issuable upon exercise of this Warrant may not be offered or sold except in
compliance with the Securities Act of 1933, as amended (the "Securities Act").
(b) The Company may cause the following legend, or its equivalent,
to be set forth on each certificate representing the Warrant Shares, or any
other security issued or issuable upon exercise of this Warrant, not theretofore
distributed to the public or sold to underwriters, as defined by the Securities
Act, for distribution to the public pursuant to Section 7(d) below:
The securities presented by this certificate have not been
registered under the Securities Act of 1933, as amended,
nor the securities laws of any other jurisdiction and were
offered and sold in reliance on exemptions from the
registration requirements of the Securities Act and such
laws. The securities may not be sold, pledged, assigned, or
hypothecated, except in a transaction registered under such
acts or pursuant to an exemption from the registration
requirements of such acts. No offer or sale of the
securities offered hereby may be made in the United States,
or to or for, the account or benefit of a "U.S. person" (as
that term is defined in Regulation S of the Securities Act)
during any applicable "distribution compliance period" (as
that term in defined in regulations of the Securities Act)
in the absence of an effective registration statement under
the Securities Act or pursuant to an available exemption
from registration under the Securities Act. Further, no
hedging transaction involving these securities may be
conducted during such distribution compliance period unless
in compliance with the registration or exemption provisions
of the Securities Act.
8. Best Efforts. The Company covenants that it will not, by amendment of
its Articles of Incorporation or bylaws, or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities, or
any other voluntary action, avoid or seek to avoid the observation or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in carrying out all those terms and in taking all action necessary
or appropriate to protect the rights of the Holder against dilution or other
impairment.
9. Further Assurances. The Company will take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable Warrant Shares or other securities upon the
exercise of all Warrants from time to time outstanding.
10. Notices. All notices, demands, requests, certificates, or other
communications by the Company to the Holder and by the Holder to the Company
shall be in writing and shall be deemed to have been delivered, given, and
received when personally given or on the third
calendar day after it is mailed by registered or certified mail to the Holder,
postage pre-paid and addressed to the Holder at his last registered address or,
if the Holder has designated, by notice in writing to the Company, any other
address, to such other address; and, if to the Company, addressed to it at that
address appearing on the signature page of this Warrant. The Company may change
its address for purposes of service of notice by written notice to the Holder at
the address provided above, and the Holder may change its address by written
notice to the Company.
11. Binding Effect. This Warrant shall be binding upon any corporation
or other entity succeeding the Company by merger, consolidation, or other
acquisition.
12. Corporate Books. The Company will at no time close its transfer
books against the transfer of any warrant or of any shares of Common Stock
issued or issuable upon the exercise of any warrant in any manner which
interferes with the timely exercise of this Warrant.
13. Applicable Law. This Warrant shall be governed by, and construed in
accordance with, the laws of the State of Nevada.
14. Survival. The various rights and obligations of the Holder and of
the Company set forth herein shall survive the exercise and surrender of this
Warrant.
15. No Amendments or Modifications. Neither this Warrant nor any
provision hereof may be amended, modified, waived, or terminated except upon the
written consent of the Company and the Holder of this Warrant.
16. Descriptive Headings. The descriptive headings of the several
Sections of this Warrant are inserted for convenience only and do not constitute
a part of this Warrant.
17 Authorization By Board of Directors. The Board of Directors of the
Company has authorized the issuance of this Warrant by a resolution duly adopted
by the Board of Directors on the date of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by an officer, thereunto duly authorized this 8th day of August 2003.
BBJ ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ______________________ hereby sell(s),
assign(s), and transfer(s) unto_____________________, the rights represented by
the within Warrant to purchase ___________ ( ) shares of the Common Stock of BBJ
Environmental Technologies, Inc. (the "Company") pursuant to the terms and
conditions of this Warrant held by the undersigned. The undersigned hereby
authorizes and directs the Company (i) to issue and deliver to the above-named
assignee a new Warrant pursuant to which the rights to purchase being assigned
may be exercised, and (ii) if there are rights to purchase Warrant Shares
remaining pursuant to the undersigned's Warrant after the assignment
contemplated herein, to issue and deliver to the undersigned a new Warrant
evidencing the right to purchase the number of Warrant Shares remaining after
issuance and delivery of this Warrant to the above-named assignee. Except for
the number of shares that may be purchased, the new Warrants to be issued and
delivered by the Company are to contain the same terms and conditions as the
undersigned's Warrant. To complete the assignment contemplated by this
Assignment, the undersigned irrevocably appoints as the undersigned's
attorney-in-fact to transfer this Warrant and the rights thereunder on the books
of the Company with the full power of substitution for these purposes.
Dated:________________, ________
_____________________________________
Printed Name of the Holder
_____________________________________
Signature
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Warrant, in every particular, without
alteration or enlargement, or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or trust company, or by a firm having
membership on a registered national securities exchange.
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NOTICE OF EXERCISE
(To be executed by the Holder desiring to exercise the right to acquire shares
of Common Stock of BBJ Environmental Technologies, Inc. pursuant to this
Warrant.)
The undersigned Holder of a Warrant to purchase shares of Common Stock
("Shares") of BBJ Environmental Technologies, Inc., a Nevada corporation, hereby
elects to purchase, pursuant to the provisions of the Holder's Warrant dated
_____________________ held by the undersigned, to the extent of purchasing the
following number of such Shares ______________( ); and requests that the
Certificate for such Shares be issued in the name of, and delivered to
________________________, whose address is
_____________________________________________; and further requests, if the
number of Shares transferred are not all the Shares that may be acquired
pursuant to the unexercised portion of this Warrant, that a new Warrant of like
tenor for the remaining Shares that may be acquired pursuant to this Warrant be
issued and delivered to the undersigned.
Dated:__________________, ____
Printed Name:____________________________
Signature: ____________________________
Address: ____________________________
____________________________
(Signature must conform in all respects to the name of holder as specified on
the face of this Warrant.)
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