EXHIBIT 4.5
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER
ANY APPLICABLE STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION AND
QUALIFICATION WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY STATING
THAT SUCH REGISTRATION AND QUALIFICATION IS NOT REQUIRED.
50,000 SHARES
COMMON STOCK PURCHASE WARRANT
OF KFx INC.
June 19, 1997
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
THIS IS TO CERTIFY that, for value received and subject to the provisions
hereinafter set forth, Xxxxx X. Xxxxxx, an individual with his principal place
of business at 00 Xxxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx 00000 (the "Warrant
Holder") (or his assigns), is entitled to purchase from KFx Inc, a Delaware
corporation ("Company")50,000 shares (the "Warrant Shares") of the Company's
$.001 par value common stock (the "Common Stock" or "Shares"), for an aggregate
purchase price equal to $4.375 multiplied by fifty thousand (50,000) shares
("Aggregate Original Warrant Price"), all on and subject to the terms,
provisions and conditions hereinafter set forth. This Warrant may be exercised
as to all or part (comprising a whole number) of the Shares represented hereby
at any time or times before August 2, 1998 ("Expiration Date"). This Warrant
shall be void and of no effect, and all rights, restrictions, and obligations
hereunder shall cease to the extent not exercised prior to the Expiration Date.
This Warrant replaces the Warrant for 50,000 shares dated August 2, 1995 and
expiring August 2, 1997.
ARTICLE I
EXERCISE OF WARRANT
Section 1.1 Duration. Subject to the provisions of Sections 1.2 and 1.4
hereof, this Warrant may be exercised at any time on or after 5:00 p.m., Denver,
Colorado time, on June 19, 1997 and at or before 5:00 p.m., Denver, Colorado
time, on August 2, 1998 (or, if such day is not a business day, at or before
5:00 p.m., Denver, Colorado time, on the next following business day). If this
Warrant is not exercised on or before the Expiration Date, it shall become void,
and all rights hereunder shall thereupon cease.
Section 1.2 Exercise of Warrant. Subject to the conditions contained
herein, this Warrant may be exercised in whole or in part at any time or times
before the Expiration Date by the surrender of this Warrant or any duly
authorized replacements hereto (with a duly executed subscription agreement in
the form attached hereto) at the principal office of the Company in Denver,
Colorado, and upon payment to the Company of the Aggregate Original Warrant
Price (or, if exercised in part, upon payment to the Company of the applicable
proportionate part of the Aggregate Original Warrant Price) for each Share so
purchased in lawful money of the United States, or by check, or postal or
express money order payable in United States dollars to the order of the Company
or by funds wired to an account as specified by the Company, and upon compliance
with and subject to the conditions set forth herein.
Upon receipt of this Warrant with the form of exercise duly executed and
accompanied by payment of the Aggregate Original Warrant Price for the shares of
Common Stock for which this Warrant is then being exercised, the Company will
cause to be issued certificates for the total number of whole Warrant Shares (as
provided in Article V hereof) for which this Warrant is being exercised in such
denominations as are required for delivery to the Warrant Holder, and the
Company shall thereupon deliver such certificates to the Warrant Holder or his
assignee.
In case the Warrant Holder shall exercise this Warrant with respect to less
than all of the shares of Common Stock that may be purchased under this Warrant,
the Company will execute a new Warrant substantially in the form of this Warrant
for the balance of the shares of Common Stock that may be purchased upon
exercise of this Warrant and deliver such new Warrant to the Warrant Holder.
The Company shall pay any and all transfer taxes payable in connection with
the issue of this Warrant or the issue of any Warrant Shares upon exercise of
this Warrant. The Company shall not, however, be required to pay any tax which
may be payable in respect of any transfer involved in the issuance or delivery
of this Warrant or the Warrant Shares in a name other than that of the Warrant
Holder at the time of surrender, and until the payment of such tax the Company
shall not be required to issue such Warrant Shares.
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Section 1.3 Warrant Holder Representation and Certificate Legend.
Unless the issuance of the Warrant Shares shall have been registered under the
Securities Act of 1933, as amended (the "1933 Act"), as a condition of its
delivery of certificates for the Warrant Shares or upon the split-up,
combination, exchange, transfer or loan of the Warrant, the Company may require
the Warrant Holder (including the transferee of the Warrant in whose name the
Warrant Shares are to be registered) to deliver to the Company, in writing,
representations regarding the Warrant Holder's sophistication, investment
intent, acquisition for his own account and such other matters as are reasonable
and customary for purchasers of securities in an unregistered private offering.
The Company may place conspicuously upon each new Warrant and upon each
certificate representing the Warrant Shares a legend substantially in the
following form, the terms of which are agreed to by the Warrant Holder
(including each transferee):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED SOLELY
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE SECURITIES LAW. SUCH
SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH SALE, OFFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE 1933 ACT AND OF
ANY APPLICABLE STATE SECURITIES LAWS.
The Company need not register a transfer of this Warrant or the Warrant
Shares unless the conditions specified in such legend are satisfied. Subject to
the transfer restrictions set forth in this Article I and in Articles IX and X
herein, this Warrant is transferable, in whole or in part, on the books of the
Company, upon surrender of this Warrant to the Company, together with a written
assignment duly executed by the Warrant Holder.
Section 1.4 Vesting. This Warrant shall vest and be exercisable
effective June 19, 1997.
Section 1.5 Exercise Price. The initial exercise price shall be $4.375
per share (the "Exercise Price").
ARTICLE II
ANTIDILUTION
Section 2.1 Subdivisions or Combinations. In case the Company shall at
any time after the date of this Warrant (i) subdivide the outstanding Shares or
(ii) combine the outstanding Shares into a smaller number of Shares, the
Exercise Price and the number and kind of Shares receivable upon exercise, in
effect at the time of the effective date of such subdivision or combination,
shall be proportionately adjusted so that the holder of the Warrant exercised
after such time shall be entitled to receive the same percentage and kind of
shares which, if the Warrant had been exercised
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immediately prior to such date, the holder would have owned upon such exercise
and been entitled to receive by virtue of such subdivision or combination. Such
adjustment shall be made successively whenever any event listed above shall
occur and shall be retroactive to the record date, if any, for such event. Any
adjustment made pursuant to this Section 2.1 shall become effective immediately
upon the effective date of such event retroactive to the record date, if any,
for such event. All calculations made under this Section 2.1 shall be made to
the nearest cent or to the nearest Share, as the case may be.
Section 2.2 Reorganization, Reclassification or Consolidation. In case
of any capital reorganization of the Company, or of any reclassification of
Shares (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of subdivision or combination),
or in case of the consolidation of the Company with or the merger of the Company
into any other person (other than a consolidation or merger in which the Company
is the continuing corporation) or of the sale of the properties and assets of
the Company as, or substantially as, an entirety to any other corporation, the
Warrant shall after such reorganization, reclassification, consolidation, merger
or sale be exercisable, upon the terms and conditions specified in this
Agreement, for the number of shares of stock or other securities, cash or other
property to which a holder of the number of Shares purchasable (at the time of
such reorganization, reclassification, consolidation, merger or sale) upon
exercise of the Warrant would have been entitled upon such reorganization,
reclassification, consolidation, merger or sale; and in any such case, if
necessary, the provisions set forth in this Section 2.2 with respect to the
rights and interests thereafter of the holders of the Warrant shall be
appropriately adjusted so as to be applicable, as nearly as may reasonably be,
to any shares of stock or other securities, cash or other property thereafter
deliverable on the exercise of the Warrant. The subdivision or combination of
Shares at any time outstanding into a greater or lesser number of Shares shall
not be deemed to be a reclassification of the Common Stock for the purposes of
this Section 2.2. The Company shall not effect any such consolidation, merger
or sale unless prior to or simultaneously with the consummation thereof the
successor corporation (if other than the Company) resulting from such
consolidation or merger or the person purchasing such assets or other
appropriate corporation or entity shall assume, by written instrument executed
and delivered to the Company's and successor person's transfer agent, if any,
the obligation to deliver to the holders of the Warrant such shares of stock,
other securities, cash or other property as, in accordance with the foregoing
provisions, such holders may be entitled to purchase and the other obligations
of the Company under this Warrant.
Section 2.3 Notices to the Warrant Holder. Upon any adjustment of the
Exercise Price or of the number or kind of Shares for which the outstanding
Warrant may be exercised pursuant to Article II, the Company, within 20 calendar
days thereafter, shall cause to be given to all of the holders of the Warrant,
at such holders' addresses appearing on the register or other records maintained
for such purpose, an officer's certificate showing the adjusted Exercise Price
and setting forth in reasonable detail the method of calculation and the facts
upon which such calculations are based and setting forth the number of Shares
purchasable upon exercise of the Warrant after such adjustment. Where
appropriate, such notice may be given in advance and included as a part of the
notice required to be mailed under the other provisions of this Article II.
In case:
4
(a) of any consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of
the conveyance or transfer of the properties and assets of the Company as,
or substantially as, an entirety, or of any capital reorganization or any
reclassification of the Common Stock (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination); or
(b) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be mailed to the Warrant Holder at his address
appearing on the register or other records maintained by the Company for such
purpose, at least 20 calendar days (or 10 calendar days in any case specified in
clauses (a) or (b) above) prior to the applicable record or effective date
hereinafter specified a written notice stating the date on which any such
consolidation, merger, conveyance, transfer, reorganization, reclassification,
dissolution, liquidation or winding up is expected and that holders of record of
shares of Common Stock shall be entitled to exchange such shares for securities,
cash or other property, if any, deliverable upon such consolidation, merger,
conveyance, transfer, reorganization, reclassification, dissolution, liquidation
or winding up. The failure to give the notice required by this Section 2.3 or
any defect therein shall not affect the legality or validity of any
consolidation, merger, conveyance, transfer, reorganization, dissolution,
liquidation or winding up or the vote upon any action.
ARTICLE III
MERGERS, CONSOLIDATIONS, SALES AND
OTHER REORGANIZATIONS
5
In the case of any consolidation or merger of the Company with another
entity, or the sale or all or substantially all or its assets to another entity,
or any reorganization or reclassification of the Common Stock or other equity
securities of the Company, then, as a condition of such consolidation, merger,
sale, reorganization or reclassification, lawful and adequate provision shall be
made whereby the holder of this Warrant shall thereafter have the right to
receive upon the basis and upon the terms and conditions specified herein and in
lieu of the shares of Common Stock immediately theretofore purchasable
hereunder, such shares of stock, securities or assets as may (by virtue of such
consolidation, merger, sale, reorganization or reclassification) be issued or
payable with respect to or in exchange for a number of outstanding shares of
Common Stock equal to the number of shares of Common Stock immediately
theretofore so purchasable hereunder had such consolidation, merger, sale,
reorganization or reclassification not taken place, and in any such case
appropriate provisions shall be made with respect to the rights and interests of
the holder of this Warrant to the end that the provisions hereof shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon exercise of this
Warrant. The Company shall not effect any such consolidation, merger, sale or
reorganization, unless prior to or simultaneously with the consummation thereof,
the successor entity (if other than the Company) resulting from such
consolidation, merger or reorganization or the entity purchasing such assets
shall assume by written instrument executed and mailed or delivered to the
holder of this Warrant, the obligations to deliver to such holder such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
such holder may be entitled to receive. Notwithstanding anything herein to the
contrary, in the event that any shareholders of the Company have an opportunity
to sell or exchange their shares of Common Stock pursuant to a consolidation,
merger, sale or reorganization or otherwise, each of the holders of the Warrant
may, if they so decide in their sole discretion, immediately exercise the
Warrant in whole or in part and, at their option sell or exchange any or all of
the Common Stock thereafter owned by such holders upon terms and conditions no
less favorable than those upon which the other shareholders are selling or
exchanging their shares of Common Stock.
ARTICLE IV
FRACTIONAL SHARES
Anything contained herein to the contrary notwithstanding, the Company
shall not be required to issue any fraction of a share in connection with the
exercise of this Warrant, and in any case where the Warrant Holder would, except
for the provisions of this Article IV, be entitled under the terms of this
Warrant to receive a fraction of a share upon the exercise of this Warrant, the
Company shall upon the exercise of this Warrant and receipt of the Exercise
Price, issue the largest number of whole shares purchasable upon exercise of
this Warrant. The Company shall not be required to make any cash or other
adjustment in respect of such fraction of a share to which the Warrant Holder
would otherwise be entitled. The Warrant Holder, by the acceptance of this
Warrant, expressly waives his right to receive a certificate for any fraction of
a share upon exercise hereof.
6
ARTICLE V
FULLY PAID STOCK; TAXES
The Company covenants and agrees that the shares of stock represented by
each and every certificate representing Common Stock to be delivered on the
exercise of the purchase rights herein provided for shall, at the time of such
delivery, be validly issued and outstanding and be fully paid and nonassessable.
The Company further covenants and agrees that it will pay when due and payable
any and all Federal, State and local taxes which may be payable in connection
with the issuance of this Warrant or any Common Stock or certificates therefor
or the exercise of the rights provided for pursuant to the provisions hereof,
including without limitation any such taxes relating to the exercise of any
purchase, conversion, or other rights contained herein, but specifically
excluding any Federal, State or local income taxes owing by the holders of the
Warrant.
ARTICLE VI
CLOSING OF TRANSFER BOOKS
The right to exercise this Warrant shall not be suspended during any period
that the stock transfer books of the Company may be closed. The Company shall
not be required, however, to deliver certificates representing shares of its
Common Stock upon such exercise while such books are duly closed for any
purpose, but the Company may postpone the delivery of the certificates for such
Common Stock until the opening of such books, and they shall, in such case, be
delivered forthwith upon the opening thereof, or as soon as practicable
thereafter.
ARTICLE VII
REPLACEMENT OF WARRANT
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and, in the case of
such loss, theft or destruction, upon delivery to the Company of indemnity or
security reasonably satisfactory to it and reimbursement to the Company of all
reasonable expenses incidental thereto, or, in the case of any such mutilation,
upon surrender and cancellation of this Warrant, the Company will make and
deliver a new Warrant of like tenor, in lieu of this Warrant.
7
ARTICLE VIII
RESERVATION OF SHARES
The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon the
exercise of this Warrant, such number of shares of Common Stock as shall be
issuable upon the exercise of this Warrant. The Company covenants and agrees
that, upon exercise of this Warrant and payment of the Purchase Price therefor,
all shares of Common Stock issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable.
ARTICLE IX
RESTRICTIONS ON TRANSFERABILITY
OF WARRANTS AND SHARES; COMPLIANCE WITH LAWS
Section 9.1 In General. This Warrant and the Warrant Shares issued upon
the exercise hereof shall not be transferable except upon the conditions
hereinafter specified, which conditions are intended to insure compliance with
the provisions of the 1933 Act (or any similar Federal statute at the time in
effect) and any applicable State securities laws in respect of the transfer of
this Warrant or any such Warrant Shares.
Section 9.2 Restrictive Legends. Each Warrant shall bear on the face
thereof a legend substantially in the form of the notice endorsed on the first
page of this Warrant. Each certificate for shares of Common Stock initially
issued upon the exercise of any Warrant and each certificate for shares of
Common Stock issued to a subsequent transferee of such certificate shall, unless
otherwise permitted by the provisions of this Section 9.2, bear on the face
thereof a legend reading substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED SOLELY
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE SECURITIES LAW. SUCH
SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH SALE, OFFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE 1933 ACT AND OF
ANY APPLICABLE STATE SECURITIES LAWS. THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF THAT CERTAIN WARRANT
AGREEMENT DATED JUNE 19, 1997, PURSUANT TO WHICH THEY WERE ISSUED.
In the event that a registration statement covering the Warrant Shares
shall become effective under the 1933 Act and under any applicable State
securities laws or in the event that the Company shall receive an opinion of
counsel satisfactory to it that, in the opinion of such counsel, such legend
8
is not, or is no longer, necessary or required (including, without limitation,
because of the availability of the exemption afforded by Rule 144 of the General
Rules and Regulations of the Securities and Exchange Commission), the Company
shall, or shall instruct its transfer agents and registrars to, remove such
legend from the certificates evidencing the Warrant Shares or issue new
certificates without such legend in lieu thereof. All fees and expenses of
counsel in connection with the rendition of the opinion provided for in this
Section 9.2 shall be paid by the holder.
Section 9.3 Notice of Proposed Transfer; Registration Not Required. The
holder of this Warrant or of any Warrant Shares, by acceptance thereof, agrees
to give prior written notice to the Company of such holder's intention to
transfer such Warrant or the Warrant Shares relating thereto (or any portion
thereof) describing briefly the manner and circumstances of the proposed
transfer. Promptly after receiving such written notice, the Company shall
present copies thereof to Company counsel and to counsel designated by such
holder, who may be an employee of such holder. If in the opinion of each such
counsel the proposed transfer may be affected without registration or
qualification of such Warrant or the Warrant Shares under any Federal or State
law, the Company, as promptly as practicable, shall notify such holder of such
opinion and of the terms and conditions, if any, to be observed, whereupon such
holder shall be entitled to transfer such Warrant or Warrant Shares, all in
accordance with the terms of the notice delivered to such holder by the Company.
If either of such counsel is unable to render such an opinion (in which case
said counsel shall set forth in writing the basis for the legal conclusions in
this regard), the Company shall promptly notify such holder that the proposed
transfer described in the written notice given pursuant to this subsection may
not be effected without such registration or qualification or without compliance
with the conditions of an exemptive regulation of the Commission and any
applicable State Securities regulatory authority. Such holder shall not be
entitled to effect such transfer until such registration, qualification,
exemption or other compliance has become effective. All fees and expenses of
counsel in connection with the rendition of the opinions provided for in this
subsection shall be paid by the holder requesting the transfer.
ARTICLE X
RIGHT OF FIRST REFUSAL
In the event any holder of Warrants or Warrant Shares ("Offeror") proposes
to sell all or any portion of the Warrants or Warrant Shares owned by the holder
to a person or entity other than an affiliate of the holder, the Offeror shall
first deliver to the Company a written notice ("Notice of Proposed Sale")
specifying the name and address of the proposed purchaser ("Proposed
Purchaser"), the number of Warrants or Warrant Shares proposed to be sold to the
Proposed Purchaser ("Offered Shares"), and all of the terms, including the
price, of the proposed sale and stating that the Company has the right to
purchase the Offered Shares in accordance with the following terms:
(i) During the 30-day period following receipt of the Notice of
Proposed Sale ("Exercise Period"), the Company shall have the right to
purchase all (but not less than all) of the Offered Shares, at the price
and on the terms specified in the Notice of Proposed Sale. The company
shall give written notice of its election to the Offeror during the
Exercise Period.
9
(ii) If the Offered Shares have not been purchased by the Company as
specified herein, the Offeror shall have the right, but only for a period
of six (6) months after the expiration of the Exercise Period, to sell the
Offered Shares to the Proposed Purchaser at the price specified in the
Notice of Proposed Sale.
(iii) Warrants or Warrant Shares sold to a Proposed Purchaser as
provided herein shall continue to be subject to the provisions of this
Warrant, and the Company shall not be obligated to issue a new Warrant
therefor in the name of such Proposed Purchaser unless that Proposed
Purchaser agrees in writing to become bound by the terms hereof.
(iv) For purposes of this Article X an affiliate shall mean each and
every corporation, partnership, person, or other entity controlling,
controlled by, or under common control with, the holder of any Warrant or
Warrant Shares.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Warrant Holder As Owner. Prior to due presentment for
registration of transfer of this Warrant, the Company may deem and treat the
Warrant Holder as the absolute owner of this Warrant (notwithstanding any
notation of ownership or other writing hereon) for the purpose of any exercise
hereof and for all other purposes, and the Company shall not be affected by any
notice to the contrary.
Section 11.2 Warrant Holder Not Shareholder. This Warrant does not
confer upon the holder hereof any right to vote or to consent or to receive
notice as a shareholder of the Company, as such, in respect of any matters
whatsoever, or any other rights or liabilities as a shareholder, prior to the
exercise hereof as hereinbefore provided.
Section 11.3 Warrant Holder Representation. Notwithstanding anything to
the contrary herein, the Warrant Holder represents and warrants that (a) it
acknowledges that the Warrant and the Warrant Shares have not been registered
under the 1933 Act or any state securities laws, (b) the Warrants and the
Warrant Shares (unless such Warrants and/or Warrant Shares, as the case may be,
are registered under the 1933 Act and applicable state securities laws) are
being and will be issued pursuant to an exemption from registration for
nonpublic offerings or offerings to one or more accredited investors, (c) that
the Warrant Holder is acquiring the Warrant and will acquire the Warrant Shares
(unless such Warrants and/or Warrant Shares are registered under the 1933 Act
and applicable state securities laws) for his own account and not with a view
toward their distribution, (d) the Warrant Holder is experienced in making
investments of this nature and has the necessary sophistication to be able to
evaluate the merits of this investment and (e) the Warrant Holder will not sell,
offer for sale, pledge or otherwise hypothecate the Warrant or the Warrant
Shares (unless such shares are registered under the 1933 Act and applicable
state securities laws) in the absence of an opinion of counsel reasonably
acceptable to the Company, that the sale, offer for sale, pledge or
10
hypothecation of the Warrant and Warrant Shares is exempt from the registration
and prospectus delivery requirements of the 1933 Act and applicable state
securities laws.
Section 11.4 Partial Exercise and Partial Assignment.
(a) If this Warrant is exercised in part only, the holder shall upon
surrender hereof be entitled to receive a new Warrant, registered in the
name of the holder or its nominee. This Warrant may be assigned either in
whole or in part by surrender of this Warrant at the principal office of
the Company in Denver, Colorado (with the assignment or, as the case may
be, partial assignment form at the end hereof duly executed). If this
Warrant is assigned, a new Warrant shall be issued to the holder hereof,
registered in the name of such holder or its nominee. The assignee shall
also be entitled to receive a new Warrant, registered in the name of such
assignee or its nominee.
(b) Subject to the provisions of paragraph (a) of this Section 11.4
this Warrant and the Warrant Shares may not be sold or otherwise disposed
of except as follows:
(i) to a person who, in the opinion of counsel reasonably
satisfactory to the Company, is a person to whom this Warrant or the
Warrant Shares may legally be transferred without registration and without
the delivery of a current prospectus under the 1933 Act with respect
thereto and then only against receipt of an agreement of such person to
comply with the provisions of this Warrant with respect to any resale or
other disposition of such securities; or
(ii) to any person upon delivery of a prospectus then meeting the
requirements of the 1933 Act relating to such securities (as to which a
registration statement under the 1933 Act shall then be in effect) and the
offering thereof for such sale or disposition.
Section 11.5 Successors. All the covenants, agreements, representations
and warranties contained in this Warrant shall bind the parties hereto and their
respective heirs, executors, administrators, distributees, successors and
assigns.
Section 11.6 Severability. Should any part of this Warrant for any
reason be declared invalid, such decision shall not affect the validity of any
remaining portion, which remaining portion shall remain in force and effect as
if this Warrant had been executed with the invalid portion thereof eliminated,
and it is hereby declared the intention of the parties hereto that they would
have executed and accepted the remaining portion of this Warrant without
including therein any such part, parts or portion which may, for any reason, be
hereafter declared invalid.
Section 11.7 Notices. Any notices required to be given pursuant to the
terms hereof shall be given (unless otherwise herein expressly provided) in
writing and either (i) personally delivered, (ii) sent by certified, return
receipt requested, (iii) sent by prepaid overnight courier, or (iv) transmitted
by telecopier or similar device, with confirmation of receipt. Notices shall be
addressed, if to holder of Warrants or Warrant Shares, to:
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Xxxxx X. Xxxxxx
00 Xxxxx Xxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
or to such other address of such holder appearing in the register maintained by
the Company, and if to the Company, to:
KFx Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Chief Financial Officer
For purposes of this Warrant, any notice sent by mail shall be demand given
on the date deposited in the mail.
Section 11.8 Headings. The Article headings in this Warrant are inserted
for purposes of convenience only and shall have no substantive effect.
Section 11.9 Law Governing. This Warrant is delivered in the State of
Colorado and shall be construed and enforced in accordance with, and governed
by, the laws of the State of Colorado.
Section 11.10 Amendments and Modifications. This Warrant may be amended or
modified only with the prior written consent of the holder hereof.
WITNESS the seal of the Company and the signatures of its duly authorized
officers.
KFx Inc.
(SEAL)
--------------------------------
Xxxxxxxx Xxxxxxx, Chairman & CEO
--------------------------------
X. X. Xxxxxxx, Secretary
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KFx INC.
SUBSCRIPTION FORM
(To be executed by the Registered Holder
in order to Exercise the Warrant)
The undersigned hereby irrevocably elects to exercise the right to purchase
__________ shares (the "Shares") of common stock, $.001 par value (the "Common
Stock") of KFx Inc. (the "Company") covered by the Common Stock Purchase Warrant
dated ____________, ____ (the "Warrant") and herewith makes payment of the
purchase price of such Shares in accordance with the terms of the Warrant. The
undersigned requests a certificate for such Shares to be registered in the name
of _____________________, whose address is ____________________________________
________________. If said number of Shares is less than all of the Shares
issuable under the Warrant, the undersigned further requests that a new warrant
representing the right to acquire the remaining balance of the Shares to be
registered in the name __________________________________, whose address is
______________________________________________________.
The undersigned hereby represents and warrants that:
(a) the Shares have not been registered under the Securities Act of
1933, as amended (the "Act") or any state securities laws,
(b) the Shares (unless such Shares are registered under the Act and
applicable state securities laws) are being and will be issued pursuant to
an exemption from registration for nonpublic offerings or offerings to one
or more accredited investors,
(c) he is acquiring the Shares (unless such Shares are registered
under the Act and applicable state securities laws) for his own account and
not with a view toward their distribution,
(d) he is experienced in making investments of this nature and has the
necessary sophistication to be able to evaluate the merits of this
investment, and
(e) he will not sell, offer for sale, pledge or otherwise hypothecate
the Shares (unless such Shares are registered under the Act and applicable
state securities laws) in the absence of an opinion of counsel reasonably
acceptable to the Company, that the sale, offer for sale, pledge or
hypothecation of the Shares is exempt from the registration and prospectus
delivery requirements of the Act and applicable state securities laws.
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(f) the Shares are being acquired in accordance with and subject to
the terms, provisions and conditions of the Warrant, to all of which he
hereby expressly assent.
Very truly yours,
____________________________
Print Name: ____________________________
Address: ____________________________
____________________________
Receipt of the above is hereby acknowledged:
KFx Inc.
By: ________________________
Title: ________________________
Date: ________________________
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ASSIGNMENT
----------
FOR VALUE RECEIVED ______________________________________ hereby sells,
assigns and transfers unto _______________________________________ the within
Warrant and all rights evidenced thereby and does irrevocably constitute and
appoint, _______________________________________ as attorney-in-fact, to
transfer the said Warrant on the books of the within named Company.
---------------------------------------
Dated:
---------------------------
PARTIAL ASSIGNMENT
------------------
FOR VALUE RECEIVED ________________________________________ hereby sells,
assigns and transfers unto ________________________________________ that portion
of the within Warrant and the rights evidenced thereby which will on the date
hereof entitle the holder to purchase ____________ shares of Common Stock of
_______________________________, irrevocably constitute and appoint
_____________________________, attorney-in-fact, to transfer that part of the
said Warrant on the books of the within named Company.
---------------------------------------
Dated:
---------------------------
AMENDMENT NO. 2 TO COMMON STOCK PURCHASE WARRANT
This Amendment No. 2 to Common Stock Purchase Warrant (this
"Amendment"), is made by and between KFx Inc., a Delaware corporation (the
"Company") and Xxxxx X. Xxxxxx, an individual ("Warrant Holder"), as of this 3rd
day of August 1998. The Company and Warrant Holder are sometimes collectively
referred to herein as the "Parties."
WHEREAS, the Parties entered into that certain Common Stock Purchase
Warrant dated June 19, 1997 in the amount of 50,000 shares (the "Warrant
Agreement");
WHEREAS, the Company amended the Warrant Agreement on June 19, 1997 to
extend the expiration of the Warrant Agreement to August 2, 1998;
WHEREAS, the Parties now desire to amend the Warrant Agreement pursuant to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in the Warrant Agreement and as hereinafter set forth, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. The introduction paragraph of the Warrant Agreement is hereby
amended in its entirety to read as follows:
THIS IS TO CERTIFY that, for value received and subject to the
provisions hereinafter set forth, Xxxxx X. Xxxxxx, an individual
with his principal place of business at 00 Xxxxx Xxxxx, Xxxxx
Xxxxx, Xxx Xxxx 00000 (the "Warrant Holder") (or his assigns),
is entitled to purchase from KFx Inc., a Delaware corporation
("Company") 50,000 shares (the "Warrant Shares") of the
Company's $.001 par value common stock (the "Common Stock" or
"Shares"), for an aggregate purchase price equal to $4.375
multiplied by fifty thousand (50,000) shares ("Aggregate
Original Warrant Price"), all on and subject to the terms,
provisions and conditions hereinafter set forth. This Warrant
may be exercised as to all or part (comprising a whole number)
of the Shares represented hereby at any time or times before
August 2, 2001 ("Expiration Date"). This Warrant shall be void
and of no effect, and all rights, restrictions, and obligations
hereunder shall cease to the extent not exercised prior to the
Expiration Date.
2. Section 1.1 of the Warrant Agreement is hereby amended in their
entirety to read as follows:
Section 1.1 Duration. Subject to the provisions of Section 1.2
and 1.4 hereof, this Warrant may be exercised at any time on or
after 5:00 p.m., Denver, Colorado time, on June 19, 1997 and at
or before 5:00 p.m., Denver Colorado time on August 2, 2001 (or,
if such day is not a business day, at or before 5:00 p.m.,
Denver, Colorado time, on the next following business day). If
this Warrant is not exercised
on or before the Expiration Date, it shall become void, and all
rights hereunder shall thereupon cease.
2. All capitalized terms used and not otherwise defined herein
shall have the same meanings as set forth in the Warrant
Agreement.
3. As expressly modified by the terms hereof, the terms and
provisions of the Warrant Agreement shall remain in full force
and effect as originally written.
4. Signatures on this Amendment may be communicated by facsimile
transmission and shall be binding upon the Parties transmitting
the same by facsimile transmission. If executed in counterparts,
this Amendment will be as effective as if simultaneously
executed.
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WITNESS, the seal of the Company and the signatures of its duly
authorized officers.
KFx Inc.
---------------------------------------------------
Xxxx X. Xxxxxxxxx
Executive Vice President & Chief Executive Officer
---------------------------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
The undersigned hereby consents to this Amendment as required by Section
11.10 of the Warrant Agreement.
--------------------------------------------------
Xxxxx X. Xxxxxx, an individual
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