EXHIBIT 10.4
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT (this "AMENDMENT")
is made and entered into as of April 20, 2005 among BPI Industries Inc., a
British Columbia corporation (the "COMPANY"), and the holders of shares of the
Company's Common Stock that are listed on the signatures pages to this Amendment
(the "PURCHASERS").
A. The Purchasers have purchased Units from the Company, each Unit
consisting of two shares of the Company's Common Stock and one Investor Warrant,
in connection with an offering by the Company that initially closed on December
31, 2004 (the "OFFERING").
B. In connection with the purchase by the Purchasers of the Units, the
Company and the Purchasers entered into a Registration Rights Agreement, dated
as of December 31, 2004 (the "REGISTRATION RIGHTS AGREEMENT").
C. The Company desires to amend the Registration Rights Agreement, for
among other reasons, to clarify certain ambiguities that exist between the
Registration Rights Agreement and the offering memorandum circulated in
connection with the Offering, as the same was amended (the "OFFERING
MEMORANDUM").
D. This Amendment will become effective upon the execution of counterpart
signature pages hereto by the Company and Purchasers holding a majority of the
number of shares of Registrable Securities outstanding as of the date hereof
(the "CONSENTING PURCHASERS"), pursuant to Section 10(h) of the Registration
Rights Agreement.
The Company and the Consenting Purchasers, on behalf of all of the
Purchasers, hereby agree as follows.
1. Defined Terms. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Registration Rights
Agreement.
2. Amendments. The Registration Rights Agreement is hereby amended as
follows:
(i) The first clause of the first sentence of Section 3(a) is
amended to read in its entirety as follows:
On or before June 30, 2005, the Company shall file with the
Commission a shelf registration statement on Form S-1, relating to
the resale by the Holders of all of the Registrable Securities;
(ii) Section 3(d) is amended to read in its entirety as follows:
If a Registration Event occurs, then the Company will make payments
to each Purchaser and SMH (to the extent that it has exercised the
Warrant)(a "QUALIFIED PURCHASER"), as liquidated damages for the
minimum amount of damages to the
1
Qualified Purchaser by reason thereof, and not as a penalty, at a
rate equal to one and one-half percent (1.5%) of the Offering Price
per Unit or, with respect to SMH, one-tenth of one and one-half
percent (0.15%) of the Offering Price for each share of Common Stock
acquired upon exercise of the Warrant held by such Qualified
Purchaser per month, for each calendar month of the Registration
Default Period (pro rated for any period less than 30 days). Each
such payment shall be due and payable within five days after the end
of each calendar month of the Registration Default Period until
termination of the Registration Default Period and within five days
after such termination. Such payments shall not constitute the
Qualified Purchaser's exclusive remedy for a Registration Event. The
amounts payable as liquidated damages pursuant to this Section 3(d)
shall be payable in lawful money of the United States. Amounts
payable as liquidated damages shall cease, with respect to the
Registrable Securities of any Qualified Purchaser, to the extent
that the Qualified Purchaser no longer holds such shares of
Registrable Securities. SMH acknowledges and agrees that the
liquidated damages provided for in this Section 3(d) shall apply to
Registrable Securities of SMH only to the extent SMH has exercised
the Warrant.
(iii) Section 4(k) is amended to read in its entirety as follows:
use its commercially reasonable best efforts, on and after the SEC
Effective Date, to cause the Common Stock, including all of the
Registrable Securities covered by the Registration Statement, to be
listed or quoted on an Approved Market.
(iv) Section 1 is amended by deleting the defined term "Registration
Default Date" from such section, and amending the defined terms "Registration
Default Period" and "Registration Event" to read in their entirety as follows:
"Registration Default Period" means (a) if the Company has failed to
file the Registration Statement with the Commission on or before
June 30, 2005, the period commencing on July 1, 2005 and ending on
the date that the Company files the Registration Statement with the
Commission and (b) if the Company has failed to use its commercially
reasonable best efforts, on and after the SEC Effective Date, to
cause the Common Stock, including all of the Registrable Securities
covered by the Registration Statement, to be listed or quoted on an
Approved Market, the period commencing on the first date after the
SEC Effective Date that the Company fails to use such efforts and
ending on the earlier of (x) the date the Company commences or
recommences using such efforts and (y) the date such Common Stock
becomes listed or quoted on an Approved Market.
"Registration Event" means that (a) the Company has failed to file
the Registration Statement on or before June 30, 2005 or (b) the
Company has failed to use its commercially reasonable best efforts,
on and after the SEC Effective Date, to cause the Common Stock,
including all of the Registrable Securities
2
covered by the Registration Statement, to be listed or quoted on an
Approved Market.
3. Acknowledgment. The Purchasers acknowledge and agree that,
notwithstanding any reference to the contrary contained in the Offering
Memorandum, the Company is not prohibited from including in any registration
statement filed by the Company pursuant to the Registration Rights Agreement any
shares of Common Stock or other securities issued by the Company prior to or
after the Offering, including without limitation any shares of Common Stock or
other securities held by officers or other affiliates of the Company.
4. Units Owned. For purposes of permitting the Company to ascertain when
this Amendment shall become effective, each Purchaser that signs this Amendment
hereby confirms, on behalf of such Purchaser only, that such Purchaser currently
owns the same number of Units purchased by such Purchaser in the Offering.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute but one and the same agreement. Counterpart signatures
may be delivered by facsimile or electronic transmission, each of which shall
have the same force and effect as an original signed copy.
All other provisions of the Registration Rights Agreement shall remain
unchanged and shall remain in full force and effect as of the date hereof.
[signature pages appear on the following pages]
3
IN WITNESS WHEREOF, the Company and the Purchasers executing counterpart
signature pages hereto have executed this Amendment as of the date set forth
above.
BPI Industries Inc.
By:_________________________
Name:_______________________
Title:______________________
Sanders Morris Harris Inc.
By:_________________________
Name:_______________________
Title:______________________
IftCo as nominee for Natural Resources
Portfolio of The Prudential Series Fund, Inc.
By:_________________________
Name:_______________________
Title:______________________
Backport & Co as nominee for Jennison
Natural Resources Fund, Inc.
By:_________________________
Name:_______________________
Title:______________________
_____________________________
Jan Bartholomew
Signature Page-1
______________________________
IRA FBO Melton R. Pipes
Pershing LLC as Custodian
______________________________
George Zilich
______________________________
Seth Silberman
Crestview Capital Funds
By:_____________________________
Name:___________________________
Title:__________________________
JMG Trinton Offshore Fund, Ltd.
By:_____________________________
Name:___________________________
Title:__________________________
JMG Capital Partners, LP
By:_____________________________
Name:___________________________
Title:__________________________
Signature Page-2
______________________________
George L. Ball
______________________________
Richard E. Bean
______________________________
Robert E. Garrison, II
______________________________
Ben T. Morris
______________________________
Frederic L. Saalwachter
______________________________
Don A. Sanders Restricted
Signature Page-3
______________________________
Katherine U. Sanders
____________________________________
Donald V. Weir TTEE Sanders 1998
Children's Trust DTD 12/01/97
Sanders Opportunity Fund, L.P.
By:________________________
Name:______________________
Title:_____________________
_____________________________________
Eric G. Weir TTEE FBO Weir 1998
Children's Trust U/A/D 08/14/98
______________________________________
______________________________________
Don Weir and Julie Ellen Weir T/I/C
Signature Page-4
________________________________________
________________________________________
Lee H. Corbin & Daniel A. Corbin JT/TEN
________________________________________
________________________________________
T. Buchanan & J. Buchanan CO/TTEES
for the Buchanan Advisors, Inc.
Defined Benefit Plan V/A DTD 1/1/2002
Hunter & Company LLC Pension Trust
By:________________________
Name:______________________
Title:_____________________
_________________________________________________
Elisa Medhus TTEE for the Atlantis Software
Company Employee Pro SH PL UAD
01/01/93
________________________________________
________________________________________
Rune Medhus and Elisa Medhus MD TIC
Signature Page-5
________________________________________
T. Scott O'Keefe
________________________________________
Jan Rask
________________________________________
Vincent Vazquez
________________________________________
IRA FBO Charles L. Ramsay, Jr.
Pershing LLC as Custodian
________________________________________
Mark Newton Davis
________________________________________
Steven R. Elliott
Signature Page-6
________________________________________
Marie Mildren
________________________________________
Gerald W. Pope TTEE
for the Gerald W. Pope REV TR
U/A DTD 11/30/78
________________________________________
David L. Shadid
________________________________________
Edwin Freedman
Sanders Opportunity Fund
(Institutional), L.P.
By:___________________________
Name:_________________________
Title:_________________________
Signature Page-7
________________________________________
________________________________________
John H. Malanga and Jodi F. Malanga,
JT/TEN
________________________________________
Carl Pipes
________________________________________
Mark Leszczynski
Vessels Coal Gas, Inc.
By:______________________________
Name:____________________________
Title:___________________________
________________________________________
________________________________________
Thomas Asarch and Barbara Asarch JT/TEN
Signature Page-8
________________________________________
IRA FBO Scott M Marshall
Pershing LLC as Custodian
________________________________________
Bascom Baynes
________________________________________
Lenny Olim
CFSIL a/c Colonial First State Wholesale
Global Resources Fund
By:___________________________
Name:_________________________
Title:________________________
Crescent International, Ltd.
By:____________________________
Name:__________________________
Title:__________________________
________________________________________
Brian Kuhn
Signature Page-9
________________________________________
Rose Anna Marshall
Nite Capital L.P.
By:_______________________
Name:_____________________
Title:___________________
________________________________________
Thomas J. Vessels
Delaware Charter Guarantee and Trust Co.
F/B/O Erik Klefos IRRA
By:__________________________
Name:________________________
Title:_______________________
Delaware Charter Guarantee and Trust Co.
F/B/O Brede C. Klefos IRA
By:_________________________
Name:_______________________
Title:______________________
________________________________________
Mathew Dobbs
31 Gresham Street
Signature Page-10
________________________________________
Mark Bridgeman
________________________________________
Sarah-Jane Bridgeman
________________________________________
Peter Bridgeman
Signature Page-11