NEITHER THIS
COMMON STOCK PURCHASE WARRANT (“THIS WARRANT”) NOR THE
SECURITIES ISSUBALE UPON EXERCISE OF THIS WARRANT HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”) OR ANY STATE SECURITIES LAWS. THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN COMPLIANCE WITH ALL APPLICABLE STATE
SECURITIES LAWS.
FOUR RIVERS BIOENERGY
INC.
COMMON STOCK PURCHASE
WARRANT
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Date of
Issuance: March 5, 2009
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Number of Warrant Shares:
200,000
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FOR VALUE RECEIVED, subject to the provisions
hereinafter set forth, the undersigned, Four Rivers BioEnergy,
Inc., a corporation incorporated under the laws of the State of
Nevada (together with its successors and assigns, the “
Company ”), hereby grants to Kreido Biofuels, Inc., or
its registered assigns (the “ Holder ”), the
right to purchase up to 200,000 shares of common stock, par value
$0.001 per share (the “ Common Stock ”), from
the Company (each such share a “ Warrant Share ”
and all such shares, the “ Warrant Shares ”) at
an exercise price of $8.00 per share, as adjusted from time to time
as provided in Section 6 (the “ Exercise Price
”), at any time and from time to time after the date hereof
and through and including 5:00 p.m., New York City time, on
March 5, 2014 (the “ Expiration Date
”).
(a) In order to exercise this Warrant, the
Notice of Exercise in the form attached hereto must be duly
executed and completed and delivered to the Company, together with
this Warrant and payment of the Exercise Price for the Warrant
Shares being purchased. If this Warrant shall not be exercised at
or before 5:00 p.m., New York City time, on the Expiration Date,
this Warrant shall become and be void without further force or
effect, and all rights represented hereby shall cease and
expire.
(b) (i) If, and only if, (y) one
hundred eighty (180) days following the Expiration Date, the
Warrant Shares are not subject to an effective registration
statement, and (z) the Warrant Shares are Registrable
Securities, as such term is defined in Section 5.1(d), the
Warrant the Holder may, at its election, exercise this Warrant in
whole or in part and, in lieu of making the cash payment otherwise
contemplated to be made to the Company upon such exercise in
payment of the aggregate Exercise Price, elect a “net
issue” or “cashless” exercise and receive upon
such exercise the “ Net Number ” of shares of
Common Stock determined according to the following formula (a
“ Cashless Exercise ”): Net Number = (A x (B -
C))/B.
(ii) For
purposes of the foregoing formula:
A= the total
number shares with respect to which this Warrant is then being
exercised;
B= the last reported sale price (as reported by
the OTC Bulletin Board) of the Common Stock on the trading date
immediately preceding the date of the exercise of this Warrant;
and
C= the Exercise
Price then in effect at the time of such exercise.
(c) For purposes of a Cashless Exercise,
the term “ date of exercise ” means the date on
which the Company shall have received (i) this Warrant,
(ii) a Notice of Exercise (in the form attached to this
Warrant) appropriately completed and duly signed, and
(iii) payment if applicable, of the Exercise Price for the
number of Warrant Shares so indicated by the Warrant Holder to be
purchased.
(d) In the case of a dispute as to the
determination of the Exercise Price or the arithmetic calculation
of the Warrant Shares, the Company shall promptly issue to the
Holder the number of Warrant Shares that are not disputed and
resolve such dispute in accordance with
Section 9.6.
2.2 Legend . Each certificate for Warrant
Shares issued under this Warrant shall bear a legend as follows,
unless such Warrant Shares have been registered under the
Securities Act of 1933, as amended (“Act”):
“THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”) OR APPLICABLE
STATE LAW. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES
LAWS.”
3.1 General Restrictions . The registered
Holder of this Warrant, by its acceptance hereof, agrees that it
will not sell, transfer or assign or hypothecate this Warrant to
anyone except upon compliance with, or pursuant to exemptions from,
applicable securities laws. In order to make any permitted
assignment, the Holder must deliver to the Company the assignment
form attached hereto duly executed and completed, together with
this Warrant and payment of all transfer taxes, if any, payable in
connection therewith. The Company shall immediately transfer this
Warrant on the books of the Company and shall execute and deliver a
new Warrant or Warrants of like tenor to the appropriate
assignee(s) expressly evidencing the right to purchase the
aggregate number of shares of Common Stock purchasable hereunder or
such portion of such number as shall be contemplated by any such
assignment.
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3.2 Restrictions Imposed by the Securities
Act . This Warrant and the Warrant Shares underlying this
Warrant shall not be transferred unless and until (i) the
Company has received the opinion of counsel for the Holder that
such securities may be transferred without compliance with the
registration requirements under Section 5 of the Securities
Act, which opinion is established to the reasonable satisfaction of
the Company, or (ii) a registration statement relating to such
Warrant Shares has been filed by the Company and declared effective
by the Securities and Exchange Commission.
4. New
Warrants to be Issued .
4.1 Partial Exercise or Transfer .
Subject to the restrictions in Section 3 hereof, this Warrant
may be exercised or assigned in whole or in part. In the event of
the exercise or assignment hereof in part only, upon surrender of
this Warrant for cancellation, together with the duly executed
exercise or assignment form and satisfaction of any Exercise Price
and/or transfer tax, the Company shall cause to be delivered to the
Holder without charge a new Warrant of like tenor to this Warrant
in the name of the Holder evidencing the right of the Holder to
purchase the aggregate number of shares of Common Stock purchasable
hereunder as to which this Warrant has not been exercised or
assigned.
4.2 Lost Certificate . Upon receipt by
the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant and of reasonably
satisfactory indemnification, the Company shall execute and deliver
a new Warrant of like tenor and date. Any such new Warrant executed
and delivered as a result of such loss, theft, mutilation or
destruction shall constitute a substitute contractual obligation on
the part of the Company.
5.1 “Piggy-Back”
Registration.
(a) The holder(s) of Registrable Securities
(as defined below) shall have the right from the date hereof
through the date that is one hundred eighty (180) days
following the Expiration Date to include all or any part of their
Registrable Securities as part of any registration of securities
filed by the Company (other than by a registration statement on
Form S-4 or S-8 or any successor form thereto); provided ,
that, if, at anytime after written notice of its intention to
register any securities and prior to the effective date of the
registration statement filed in connection with such registration,
the Company shall determine for any reason either not to register
or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to each
holder of Registrable Securities and, thereupon, (i) in the
case of a determination not to register, shall be relieved of this
obligation to register any Registrable Securities in connection
with such registration, and (ii) in the case of a
determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the
delay in registering such other securities.
(b) The Company shall bear all fees and
expenses attendant to registering the Registrable Securities, but
the holders shall pay any and all underwriting commissions and the
expenses of any legal counsel selected by the holders to represent
them in connection with the sale of the Registrable Securities. In
the event of such a proposed registration, the Company shall
furnish the then holders of outstanding Registrable Securities with
not less than twenty days written notice prior to the proposed date
of filing of such registration statement. The holders of the
Registrable Securities shall exercise the “piggy-back”
rights provided for herein by giving written notice to the Company,
within ten days of the receipt of the Company’s notice. The
Company shall use its commercially reasonably efforts to cause any
registration statement filed pursuant to this Section 5 to
remain effective until all Registrable Securities thereunder have
been sold, or are freely tradable without registration pursuant to
Rule 144 under the Securities Act (or any similar provisions that
are then in effect).
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(c) If the Company proposes to register any
of its securities in connection with an underwritten offering on
behalf of the Company and the managing underwriter of such
underwritten offering for the Company shall advise the Company in
writing that the number of Registrable Securities requested to be
included in such registration statement exceeds the number of
securities which can be sold in an orderly manner in or proximate
to such offering within a price range acceptable to the Company,
then the Company shall include in such registration:
(i) first, all securities proposed by the Company to be sold
for its own account; (ii) second, Registrable Securities
requested by the holders thereof to be included in such
registration, pro rata among such holders, that the managing
underwriter agrees may be included in the registration statement
for the underwritten offering, and such Registrable Securities
shall be only included if the holders thereof agree not to sell
their Registrable Securities for a period of up to 180 days as
the managing underwriter reasonably requests; and (iii) third,
securities of other selling security holders requested to be
included in such registration statement, provided, that all the
Registrable Securities have been included in the registration
statement, unless such securities have equal registration rights
with the Registrable Securities, in which case to the extent the
managing underwriter permits the inclusion of the Registrable
Securities and the securities of others, the included Registrable
Securities and other securities will be pro rated first as to the
holders of the same or similar registration rights and then pro
rated within such group of holders, or as they agree.
(d) As used in this Warrant, the term
“ Registrable Securities ” means this Warrant
and the Warrant Shares. As to any particular Registrable
Securities, such securities will cease to be Registrable Securities
when (i) they have been effectively registered under the
Securities Act and disposed of in accordance with the registration
statement covering them, or (ii) they are or may be sold or
transferred without registration pursuant to Rule 144(i) under the
Securities Act (or any similar provisions that are then in effect)
without regard to any volume limitations set forth in such
rule.
(i) 5.2.1
Indemnification.
(a) The Company shall indemnify the
holder(s) of the Registrable Securities to be sold pursuant to any
registration statement hereunder and each person, if any, who
controls such holder(s) within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Securities Exchange Act
of 1934, as amended (“ Exchange Act ”), against
all loss, claim, damage, expense or liability (including all
reasonable attorneys’ fees) to which any of them may become
subject under the Securities Act, the Exchange Act or otherwise,
arising from such registration statement. The holder(s) of the
Regis
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