Exhibit
10.5
EXECUTION
COPY
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 TRANSFERRED, OFFERED OR SOLD EXCEPT PURSUANT (A) TO THE
TERMS OF THIS WARRANT, (B) TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, OR (C) 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
(Subject to transfer
restrictions.)
Date of Original
Issuance: April 6, 2009
Number
of Warrant Shares: 200,000
1.
Warrant
.
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
BlueCrest Strategic Limited (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 5 (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 31 December 2012 (the “ Expiration Date
”).
This warrant
(“the Warrant ”) is being issued in connection
with that certain Subscription and Shareholders Agreement relating
to BF Group Holdings Limited, a company incorporated in England and
Wales under number 6831250 (“ BF ”), dated April
6, 2009 (the “ Shareholders Agreement ”), and
certain provision of that agreement require the exercise of this
Warrant and restrict its transfer.
Capitalized terms not
otherwise defined in this Warrant shall have the meaning given to
them in the Shareholders Agreement.
2.
Exercise
.
2.1
Exercise
Form .
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. Payment
of the Exercise Price shall only be paid in cash, by specie,
certified check or wire transfer and no other consideration of any
kind or nature. 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.
2.2
Mandatory Exercise
Requirement . The Holder agrees that in
connection with the “ Put Option ” as defined in
and as provided in the Shareholders Agreement, it will exercise
this Warrant in accordance with the terms hereof, to the extent
such Warrant has not been partially exercised before the exercise
of the Put Option.
2.3
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 (the " Securities 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.
Transfer
.
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 (i) to any “ Permitted Transferee ” (as
defined in the Shareholders Agreement), (ii) pursuant to the
provisions of Clause 7.2.2 of the Shareholders Agreement, or (iii)
to a transferee of “ Shares ” (as defined in the
Shareholders Agreement) from the Holder or a Permitted Transferee
(as defined in the Shareholders Agreement) or a “BlueCrest
Fund” (as defined in the Shareholders Agreement) pursuant to
and in accordance with Article 8.10 of the articles of association
of BF, in each case (a) in accordance with the Shareholders
Agreement and/or the articles of association of BF, as applicable,
and (b) upon compliance with, or pursuant to exemptions from,
applicable Federal, national, state, provincial and local
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 substantially similar in all material terms
to the appropriate assignee(s) expressly evidencing the right and
obligation 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.
3.2
Restrictions Imposed
by the Securities Act . This Warrant, subject to the
terms hereof and the Shareholders Agreement, 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. For an abundance of
clarity, the Company has no obligation to prepare, file, have
declared effective or maintain as effective any registration of
this Warrant and the Warrant Shares for transfer or otherwise, with
any governmental authority.
4.
New Warrants to be
Issued .
4.1
Partial Exercise or
Transfer .
Subject to the restrictions set forth herein, 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 or Warrants
substantially similar in all material terms 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.
2
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 or Warrants substantially similar in all material terms 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.
Adjustments .
5.1
Adjustments to
Exercise Price and Number of Securities . The Exercise Price and the
number of shares of Common Stock underlying this Warrant shall be
subject to adjustment from time to time as hereinafter set
forth:
5.1.1
Stock Dividends -
Recapitalization, Reclassification, Split-Ups
. If after the
date hereof, and subject to the provisions of Section 5.2, the
number of outstanding shares of Common Stock is increased by a
stock dividend on the Common Stock payable in shares of Common
Stock or by a split-up, recapitalization or reclassification of
shares of Common Stock or other similar event, then, on the
effective date thereof, the number of shares of Common Stock
issuable on exercise of this Warrant shall be increased in
proportion to such increase in outstanding shares.
5.1.2
Aggregation of
Shares .
If after the date hereof, and subject to the provisions of
Section 5.2, the number of outstanding shares of Common Stock is
decreased by a consolidation, combination or reclassification of
shares of Common Stock or other similar event, then, upon the
effective date thereof, the number of shares of Common Stock
issuable on exercise of this Warrant shall be decreased in
proportion to such decrease in outstanding shares of Common
Stock.
5.1.3
Adjustments in
Exercise Price . Whenever the number of
shares of Common Stock purchasable upon the exercise of this
Warrant is adjusted, as provided in this Section 5.1, the Exercise
Price shall be adjusted (to the nearest cent) by multiplying such
Exercise Price immediately prior to such adjustment by a fraction
(x) the numerator of which shall be the number of shares of Common
Stock purchasable upon the exercise of this Warrant immediately
prior to such adjustment, and (y) the denominator of which shall be
the number of shares of Common Stock so purchasable immediately
thereafter.
5.1.4
Replacement of
Securities upon Reorganization, etc . In case the Company at
any
