Exhibit 4.12
THIS WARRANT AND THE SECURITIES
ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO
(1) REGISTRATION IN COMPLIANCE WITH SUCH ACT AND SUCH STATE
LAWS OR (2) AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED.
WARRANT
To Purchase Class A
Units
BLACKHAWK BIOFUELS,
LLC
June 30, 2006
THIS CERTIFIES THAT
, for good and valuable
consideration, the receipt of which is hereby acknowledged,
or its lawful assignee (the “Holder”) is entitled to
subscribe for and purchase from Blackhawk Biofuels, LLC, an
Illinois limited liability company (the “Company”),
of the Class A Units of the Company pursuant to the terms and
subject to the conditions hereof. The Class A Units that
may be acquired upon exercise of this Warrant are referred to
herein as the “Warrant Units.” As used herein, the
term “Holder” means the Holder, any party who acquires
all or part of this Warrant as a registered transferee of the
Holder, or any record holder or holders of the Warrant Units issued
upon exercise, whether in whole or in part, of the
Warrant.
This Warrant is subject to the
following provisions, terms and conditions:
1. Exercise and Term
.
(a) The right to purchase the
Warrant Units at the Warrant Exercise Price shall be exercisable at
any time from and after the date on which the 30 million
gallon per year biodiesel production plant that the Company
proposes to construct (the “Plant”) commences
operations at its nameplate capacity, as certified by the
design-build firm that the Company engages to construct the Plant,
and continue for a period of one (1) year following such date
(the “Exercise Period”), after which date all such
rights shall terminate.
(b) The rights represented by this
Warrant may be exercised by the Holder hereof, in whole or in
part (but not as to a fractional units), by written notice of
the Holder’s irrevocable election to exercise the purchase
right represented by such Warrant (in the form attached
hereto) delivered to the Company ten (10) days prior to the
intended date of exercise at its principal offices prior to the
expiration of this Warrant along with or preceded by (i) a
certified or bank cashier’s check in payment of the Warrant
Exercise Price for such Units, and (ii) the surrender of this
Warrant.
2. Warrant Exercise Price .
The Warrant Units shall be exercisable at a price of One Dollar and
no cents ($1.00) per unit (the “Warrant Exercise
Price”).
3. Issuance of Securities .
The Company agrees that the Warrant Units purchased hereby shall be
and are deemed to be issued to the record holder hereof as of the
close of business on the date on which this Warrant shall have been
surrendered and the payment made for such Warrant Units as
aforesaid. Within a reasonable time, not exceeding ten
(10) days after the rights represented by this Warrant shall
have been so exercised, and, unless this Warrant has expired, a new
Warrant representing the number of Warrant Units, if any, with
respect to which this Warrant shall not then have been exercised
shall also be delivered to the holder hereof.
4. Status as Accredited
Investor . The Holder represents and warrants to the Company
that as of the date of this Warrant, Holder is an “accredited
investor” as that term is defined under Rule 501 of
Regulation D of the Securities Act of 1933, as amended, and Holder
understands that the Company is relying upon this representation in
connection with the issuance of this Warrant to Holder.
5. Covenants of Company . The
Company agrees that all Warrant Units which may be issued upon
the exercise of the rights represented by this Warrant will, upon
issuance, be duly authorized and issued, fully paid and
nonassessable. The Company further agrees that during the period
within which the rights represented by this Warrant may be
exercised, in the event this Warrant is exercised, the Company will
have authorized, and reserved for the purpose of issue or transfer
upon exercise of the subscription rights evidenced by this Warrant,
a sufficient number of such Warrant Units, to provide for the
exercise of the rights represented by this Warrant.
6. Anti-dilution Adjustments
. The above provisions are, however, subject to the
following:
(a) In case the Company shall at any
time hereafter subdivide or combine its outstanding Class A
Units, the Warrant Exercise Price, in effect immediately prior to
the subdivision or combination shall forthwith be proportionately
increased, in the case of combination, or decreased, in the case of
subdivision, and each Warrant Unit purchasable upon exercise of the
Warrant shall be changed to the number determined by dividing the
then current Warrant Exercise Price by the exercise price as
adjusted after the subdivision or combination.
(b) If any merger, capital
reorganization or reclassification of the outstanding capital stock
of the Company, or consolidation or merger of the Company with
another entity, or the sale of all or substantially all of its
assets to another entity shall be effected in such a way that
holders of the Company’s Class A Units shall be entitled
to receive securities or assets with respect to or in exchange for
their Class A Units (an “Exchange Event”), then,
from and after such E
