Current Report — Form 8-K Filing Table of Contents
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1: 8-K Current Report HTML 33K
2: EX-4.1 Instrument Defining the Rights of Security Holders HTML 80K
3: EX-4.2 Instrument Defining the Rights of Security Holders HTML 49K
4: EX-10.1 Material Contract HTML 34K
5: EX-10.2 Material Contract HTML 140K
6: EX-99.1 Miscellaneous Exhibit HTML 13K
EX-4.2 — Instrument Defining the Rights of Security Holders
THE
WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SHARES ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), OR ANY STATE SECURITIES LAWS IN RELIANCE ON EXEMPTIONS FROM
REGISTRATION REQUIREMENTS UNDER SAID LAWS, AND NEITHER SUCH SECURITIES NOR
ANY
INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE
TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS
EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE
COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER
CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
APPLICABLE STATE SECURITIES LAWS.
THE
TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED
HEREIN.
ENERTECK
CORPORATION
1,000,000Warrants
for the Purchase of 1,000,000 Shares of
Common
Stock, par value $0.001 per share
No. W-41
1,000,000
Shares
THIS
CERTIFIES that, for value received, BATL
BIOENERGY, LLC,
a
Delaware limited liability company (including any transferee, the “Holder”), is
entitled to subscribe for and purchase from ENERTECK
CORPORATION,
a
Delaware corporation (the “Company”), the amount of shares set forth above (the
“Shares”) upon the terms and conditions set forth herein. This Warrant is being
issued in connection with a certain Securities Purchase Agreement between the
Company and the Holder and is subject to its terms and conditions. Each Warrant
(collectively, the “Warrants”) grants the Holder the right to purchase from the
Company one share of its common stock at the exercise price of $2.00
per
share (“Exercise Price”), during the period commencing as of the date hereof and
expiring at 11:59 p.m., Eastern Time, on December8, 2010.
As used
herein, the term “this Warrant” shall mean and include this Warrant and any
Warrant or Warrants hereafter issued as a consequence of the exercise or
transfer of this Warrant in whole or in part.
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1. This
Warrant may be exercised during the Exercise Period as to all of the Shares
by
the surrender of this Warrant (with the Exercise Form attached hereto as Exhibit
A, duly executed) to the Company at its office at 10701 Corporate Drive, Suite
150, Stafford, Texas77477,
Attention:
President, or at such other place as is designated in writing by the Company,
together with a certified or bank cashier’s check payable to the order of the
Company in an amount equal to the Exercise Price of $2.00 multiplied by the
number of Shares for which this Warrant is being exercised.
2. Upon
each
exercise of the Holder’s rights to purchase Shares, the Holder shall be deemed
to be the holder of record of the Shares issuable upon such exercise,
notwithstanding that the transfer books of the Company shall then be closed
or
certificates representing such Shares shall not then have been actually
delivered to the Holder. As soon as practicable after each such exercise of
this
Warrant, the Company shall issue and deliver to the Holder a certificate or
certificates for the Shares issuable upon such exercise, registered in the
name
of the Holder or its designee. If this Warrant should be exercised in part
only,
the Company shall, upon surrender of this Warrant for cancellation, execute
and
deliver a new Warrant evidencing the right of the Holder to purchase the balance
of the Shares (or portions thereof) subject to purchase hereunder.
3. (a) Any
Warrants issued upon the transfer or exercise in part of this Warrant shall
be
numbered and shall be registered in a Warrant Register as they are issued.
The
Company shall be entitled to treat the registered holder of any Warrant on
the
Warrant Register as the owner in fact thereof for all purposes and shall not
be
bound to recognize any equitable or other claim to or interest in such Warrant
on the part of any other person, and shall not be liable for any registration
or
transfer of Warrants which are registered or to be registered in the name of
a
fiduciary or the nominee of a fiduciary unless made with the actual knowledge
that a fiduciary or nominee is committing a breach of trust in requesting such
registration or transfer, or with the knowledge of such facts that its
participation therein amounts to bad faith. This Warrant shall be transferable
only on the books of the Company upon delivery thereof duly endorsed by the
Holder or by his duly authorized attorney or representative the Form of
Assignment, a copy of which is attached hereto as Exhibit B, or accompanied
by
proper evidence of succession, assignment, or authority to transfer. In all
cases of transfer by an attorney, executor, administrator, guardian, or other
legal representative, duly authority shall be produced. Upon any registration
of
transfer, the Company shall deliver a new Warrant or Warrants to the person
entitled thereto. This Warrant may be exchanged, at the option of the Holder
thereof, for another Warrant, or other Warrants of different denominations,
of
like tenor and representing in the aggregate the right to purchase a like number
of Shares (or portions thereof), upon surrender to the Company or its duly
authorized agent. Notwithstanding the foregoing, the Company may require prior
to registering any transfer of a Warrant an opinion of counsel reasonably
satisfactory to the Company that such transfer complies with the provisions
of
the Securities Act of 1933, as amended (the “Act”), and the rules and
regulations thereunder.
(b) The
Holder acknowledges that he/she has been advised by the Company that neither
this Warrant nor the Shares have been registered under the Act, that this
Warrant is being or has been issued and the Shares may be issued on the basis
of
the statutory exemption provided by Section 4(2) of the Act, relating to
transactions by an issuer not involving any public offering, and that the
Company’s reliance thereon is based in part upon the representations made herein
by the Holder. The Holder acknowledges that he has been informed by the Company
of, or is otherwise familiar with, the nature of the limitations imposed by
the
Act and the rules and regulations thereunder on the transfer of securities.
In
particular, the Holder agrees that no sale, assignment or transfer of this
Warrant or the Shares issuable upon exercise hereof shall be valid or effective,
and the Company shall not be required to give any effect to any such sale,
assignment or transfer, unless (i) the sale, assignment or transfer of this
Warrant or such Shares is registered under the Act, it being understood that
neither this Warrant nor such Shares are currently registered for sale and
that
the Company has no obligation or intention to so register this Warrant or such
Shares except as otherwise provided for herein including, without limitation,
Section 9 hereof, or (ii) this Warrant or such Shares are sold, assigned or
transferred in accordance with all the requirements and limitations of Rule
144
under the Act, or (iii) such sale, assignment, or transfer is otherwise exempt
from registration under the Act in the opinion of counsel reasonably acceptable
to the Company.
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4. The
Company shall at all times reserve and keep available out its authorized and
unissued Common Stock, solely for the purpose of providing for the exercise
of
the rights to purchase all Shares granted pursuant to the Warrants, such number
of shares of Common Stock as shall, from time to time, be sufficient therefor.
The Company covenants that all shares of Common Stock issuable upon exercise
of
this Warrant, upon receipt by the Company of the full Exercise Price therefor,
shall be validly issued, fully paid, nonassessable, and free of preemptive
rights.
5. (a) In
case
the Company shall at any time after the date the Warrants were first issued
(i) declare a dividend on the outstanding Common Stock payable in shares
of
its capital stock, (ii) subdivide the outstanding Common Stock,
(iii) combine the outstanding Common Stock into a smaller number of
shares,
or (iv) issue any shares of its capital stock by reclassification of
the
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation),
then, in each case, the Exercise Price, and the number of Shares issuable upon
exercise of this Warrant, in effect at the time of the record date for such
dividend or of the effective date of such subdivision, combination, or
reclassification, shall be proportionately adjusted so that the Holder after
such time shall be entitled to receive the aggregate number and kind of shares
which, if such Warrant had been exercised immediately prior to such time, he/she
would have owned upon such exercise and been entitled to receive by virtue
of
such dividend, subdivision, combination, or reclassification. Such adjustment
shall be made successively whenever any event listed above shall
occur.
(b) In
case
the Company shall issue or fix a record date for the issuance to all holders
of
Common Stock of rights, options, or warrants to subscribe for or purchase Common
Stock (or securities convertible into or exchangeable for Common Stock) at
a
price per share (or having a conversion or exchange price per share, if a
security convertible into or exchangeable for Common Stock) less than the then
applicable Exercise Price per share on such record date, then, in each case,
the
Exercise Price shall be adjusted by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding on such record date
plus the number of shares of Common Stock which the aggregate offering price
of
the total number of shares of Common Stock so to be offered (or the aggregate
initial conversion or exchange price of the convertible or exchangeable
securities so to be offered) would purchase at such Exercise Price and the
denominator of which shall be the number of shares of Common Stock outstanding
on such record date plus the number of additional shares of Common Stock to
be
offered for subscription or purchase (or into which the convertible or
exchangeable securities so to be offered are initially convertible or
exchangeable). Such adjustment shall become effective at the close of business
on such record date; provided, however, that, to the extent the shares of Common
Stock (or securities convertible into or exchangeable for shares of Common
Stock) are not delivered, the Exercise Price shall be readjusted after the
expiration of such rights, options, or warrants (but only with respect to
warrants exercised after such expiration), to the Exercise Price which would
then be in effect had the adjustments made upon the issuance of such rights,
options, or warrants been made upon the basis of delivery of only the number
of
shares of Common Stock (or securities convertible into or exchangeable for
shares of Common Stock) actually issued. In case any subscription price may
be
paid in a consideration part or all of which shall be in a form other than
cash,
the value of such consideration shall be as determined in good faith by the
board of directors of the Company, whose determination shall be
conclusive.
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(c) In
case
the Company shall distribute to all holders of Common Stock (including any
such
distribution made to the stockholders of the Company in connection with a
consolidation or merger in which the Company is the continuing corporation)
evidences of its indebtedness, cash (other than any cash dividend which,
together with any cash dividends paid within the 12 months prior to the record
date for such distribution, does not exceed 5% of the then applicable Exercise
Price at the record date for such distribution) or assets (other than
distributions and dividends payable in shares of Common Stock), or rights,
options, or warrants to subscribe for or purchase Common Stock, or securities
convertible into or exchangeable for shares of Common Stock (excluding those
with respect to the issuance of which an adjustment of the Exercise Price is
provided pursuant to Section 5(b) hereof), then, in each case, the Exercise
Price shall be adjusted by multiplying the Exercise Price in effect immediately
prior to the record date for the determination of stockholders entitled to
receive such distribution by a fraction, the numerator of which shall be the
then applicable Exercise Price per share of Common Stock on such record date,
less the fair market value (as determined in good faith by the board of
directors of the Company, whose determination shall be conclusive absent
manifest error) of the portion of the evidences of indebtedness or assets so
to
be distributed, or of such rights, options, or warrants or convertible or
exchangeable securities, or the amount of such cash, applicable to one share,
and the denominator of which shall be such Exercise Price per share of Common
Stock. Such adjustment shall become effective at the close of business on such
record date.
(d) No
adjustment in the Exercise Price shall be required if such adjustment is less
than $.01; provided, however, that any adjustments which by reason of this
Section 5 are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section
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shall be made to the nearest cent or to the nearest one-thousandth of a share,
as the case may be.
(e) In
any
case in which this Section 5 shall require that an adjustment in the Exercise
Price be made effective as of a record date for a specified event, the Company
may elect to defer, until the occurrence of such event, issuing to the Holder,
if the Holder exercised this Warrant after such record date, the shares of
Common Stock, if any, issuable upon such exercise over and above the shares
of
Common Stock, if any, issuable upon such exercise on the basis of the Exercise
Price in effect prior to such adjustment; provided, however, that the Company
shall deliver to the Holder a due bill or other appropriate instrument
evidencing the Holder’s right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(f) Upon
each
adjustment of the Exercise Price as a result of the calculations made in
Sections 5(b) or 5(c) hereof, this Warrant shall thereafter evidence
the
right to purchase, at the adjusted Exercise Price, that number of shares
(calculated to the nearest thousandth) obtained by dividing (i) the
product
obtained by multiplying the number of shares purchasable upon exercise of this
Warrant prior to adjustment of the number of shares by the Exercise Price in
effect prior to adjustment of the Exercise Price by (ii) the Exercise
Price
in effect after such adjustment of the Exercise Price.
(g) Whenever
there shall be an adjustment as provided in this Section 5, the Company shall
promptly cause written notice thereof to be sent by registered mail, postage
prepaid, to the Holder, at its address as it shall appear in the Warrant
Register, which notice shall be accompanied by an officer’s certificate setting
forth the number of Shares purchasable upon the exercise of this Warrant and
the
Exercise Price after such adjustment and setting forth a brief statement of
the
facts requiring such adjustment and the computation thereof, which officer’s
certificate shall be conclusive evidence of the correctness of any such
adjustment absent manifest error.
(h) The
Company shall not be required to issue fractions of shares of Common Stock
or
other capital stock of the Company upon the exercise of this Warrant. If any
fraction of a share would be issuable on the exercise of this Warrant (or
specified portions thereof), the Company shall purchase such fraction for an
amount in cash equal to the same fraction of the Exercise Price of such share
of
Common Stock on the date of exercise of this Warrant.
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6. (a) In
case
of any consolidation with or merger of the Company with or into another
corporation (other than a merger or consolidation in which the Company is the
surviving or continuing corporation), or in case of any sale, lease, or
conveyance to another corporation of the property and assets of any nature
of
the Company as an entirety or substantially as an entirety (collectively an
“Extraordinary Event”), such successor, leasing, or purchasing corporation, as
the case may be, shall, as a condition precedent to the consummation of such
consolidation or merger, (i) execute with the Holder an agreement providing
that
the Holder shall have the right thereafter to receive upon exercise of this
Warrant solely the kind and amount of shares of stock and other securities,
property, cash, or any combination thereof (collectively “Extraordinary Event
Consideration”) receivable upon such consolidation, merger, sale, lease, or
conveyance by a holder of the number of shares of Common Stock for which this
Warrant might have been exercised immediately prior to such consolidation,
merger, sale, lease, or conveyance, and (ii) make effective provision in its
certificate of incorporation or otherwise, if necessary, to effect such
agreement. Such agreement shall provide for adjustments that shall be as nearly
equivalent as practicable to the adjustments in Section 5.
(b) In
case
of any reclassification or change of the shares of Common Stock issuable upon
exercise of this Warrant (other than a change in par value or from no par value
to a specified par value, or as a result of a subdivision or combination, but
including any change in the shares into two or more classes or series of
shares), or in case of any consolidation or merger of another corporation into
the Company in which the Company is the continuing corporation and in which
there is a reclassification or change (including a change to the right to
receive cash or other property) of the shares of Common Stock (other than a
change in par value, or from no par value to a specified par value, or as a
result of a subdivision or combination, but including any change in the shares
into two or more classes or series of shares), the Holder shall have the right
thereafter to receive upon exercise of this Warrant solely the kind and amount
of shares of stock and other securities, property, cash, or any combination
thereof receivable upon such reclassification, change, consolidation, or merger
by a holder of the number of shares of Common Stock for which this Warrant
might
have been exercised immediately prior to such reclassification, change,
consolidation, or merger. Thereafter, appropriate provision shall be made for
adjustments that shall be as nearly equivalent as practicable to the adjustments
in Section 5.
(c) The
above
provisions of this Section 6 shall similarly apply to successive
reclassifications and changes of shares of Common Stock and to successive
consolidations, mergers, sales, leases, or conveyances.
7. In
case
at any time the Company shall propose to:
(a) pay
any
dividend or make any distribution on shares of Common Stock in shares of Common
Stock or make any other distribution (other than regularly scheduled cash
dividends which are not in a greater amount per share than the most recent
such
cash dividend) to all holders of Common Stock; or
(b) issue
any
rights, warrants, or other securities to all holders of Common Stock entitling
them to purchase any additional shares of Common Stock or any other rights,
warrants, or other securities; or
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(c) effect
any reclassification or change of outstanding shares of Common Stock, or any
consolidation, merger, sale, lease, or conveyance of property; or
(d) effect
any liquidation, dissolution, or winding-up of the Company; or
(e) take
any
other action that would cause an adjustment to the Exercise Price;
then,
and
in any one or more of such cases, the Company shall give written notice thereof,
by registered mail, postage prepaid, to the Holder at the Holder’s address as it
shall appear in the Warrant Register, mailed at least 15 days prior to (i)
the
date as of which the holders of record of shares of Common Stock to be entitled
to receive any such dividend, distribution, rights, warrants, or other
securities are to be determined, (ii) the date on which any such
reclassification, change of outstanding shares of Common Stock, consolidation,
merger, sale, lease, conveyance of property, liquidation, dissolution, or
winding-up is expected to become effective, and the date as of which it is
expected that holders of record of shares of Common Stock shall be entitled
to
exchange their shares for securities or other property, if any, deliverable
upon
such reclassification, change of outstanding shares, consolidation, merger,
sale, lease, conveyance of property, liquidation, dissolution, or winding-up,
or
(iii) the date of such action which would require an adjustment to the Exercise
Price.
8. The
issuance of any shares or other securities upon the exercise of this Warrant,
and the delivery of certificates or other instruments representing such shares
or other securities, shall be made without charge to the Holder for any tax
or
other charge in respect of such issuance. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery of any certificate in a name other than that of the
Holder and the Company shall not be required to issue or deliver any such
certificate unless and until the person or persons requesting the issue thereof
shall have paid to the Company the amount of such tax or shall have established
to the satisfaction of the Company that such tax has been paid.
9. The
provisions of the Registration Rights Agreement entered into between the Company
and the Holder, contemporaneously with the issuance of this Warrant, pertaining
to the rights to registration under the Act are hereby incorporated herein
by
reference and made a part hereof and shall be deemed to apply to the
registration of the Shares issued upon exercise of this Warrant.
10. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction,
or mutilation of any Warrant (and upon surrender of any Warrant if mutilated),
the Company shall execute and deliver to the Holder thereof a new Warrant of
like date, tenor, and denomination.
11. The
Holder of any Warrant shall not have solely on account of such status, any
rights of a stockholder of the Company, either at law or in equity, or to any
notice of meetings of stockholders or of any other proceedings of the Company,
except as provided in this Warrant.
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12. This
Warrant may not be amended or modified without the prior written consent of
the
Holder.
13. This
Warrant has been negotiated and consummated in the State of New York and shall
be construed in accordance with the laws of the State of New York applicable
to
contracts made and performed within such State, without regard to principles
governing conflicts of law.