EXHIBIT 4.3
UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES
SHALL NOT TRADE THE SECURITIES BEFORE _________________.
WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL
APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR
THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO
OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL ___________________.
THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "U.S. SECURITIES ACT") OR ANY STATE SECURITIES LAWS. THIS WARRANT
MAY NOT BE EXERCISED IN THE UNITED STATES (AS DEFINED IN REGULATION S UNDER THE
U.S. SECURITIES ACT) UNLESS THE WARRANT AND THE COMMON SHARES ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE U.S. SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE AND ESTABLISHED AS SET FORTH IN THIS WARRANT.
THE WARRANTS EVIDENCED HEREBY ARE EXERCISABLE UNTIL 4:30 P.M. (PACIFIC TIME) ON
_____________________, AFTER WHICH TIME THEY WILL EXPIRE AND BE OF NO FURTHER
FORCE AND EFFECT OR VALUE.
NO. _________________ __________________________
_________________ WARRANTS
WARRANT CERTIFICATE
BPI INDUSTRIES INC.
Suite 1500 - 885 West Georgia Street
Vancouver, British Columbia, V6C 3E8
(the "ISSUER")
THIS CERTIFIES that, for value received:
_________________________
(hereinafter referred to as the "Holder")
is the registered holder hereof, and holds that number of _________ Warrants
(the "WARRANTS") set forth above. The Holder agrees to comply with all
applicable securities laws in connection with the holding and exercise of the
Warrants and, as applicable, the purchase, holding and resale of the common
shares (the "SHARES") in the capital of the Issuer issuable on exercise of the
Warrants. All dollar amounts stated in this Warrant Certificate are denominated
in United States dollars.
1. WARRANT EXERCISE TERMS
Subject to adjustment as herein provided, each Warrant shall entitle the Holder
thereof to purchase one fully paid and non-assessable Share, as constituted on
__________, 2004 at a price of $1.50 per Share until 4:30 pm (Pacific Time) on
___________, 2006 (the "EXPIRY DATE"). Provided, that at such time as the resale
in the United States by the Holder of the Shares underlying the Warrants is
covered by a registration statement in effect with the United States Securities
and Exchange Commission, the Expiry Date shall be extended to be two years from
the Expiry Date first stated in this Section 1, and an amendment to this Warrant
Certificate, evidencing such extension, shall be sent to the Holder by the
Issuer.
2. WARRANT EXERCISE PROCEDURE
The Warrants may be exercised by surrendering to the Issuer:
(a) this Warrant Certificate, and
(b) the Subscription Form attached as Schedule "A" hereto, duly
completed and executed, and
(c) a certified cheque or money order made payable to the Issuer in the
aggregate amount of the exercise price,
at its head office at Suite 1500, 885 West Georgia Street, Vancouver, British
Columbia, V6C 3E8, or such other office or agency of the Issuer as it may
designate by notice in writing delivered to the Holder at the address stated
above.
Notwithstanding anything contained herein to the contrary, the Warrants
represented by this certificate shall not be exercisable by the Warrantholder,
in whole or in part, and the Issuer shall not give effect to any such exercise
of the Warrants, if, after giving effect to such exercise, the Warrantholder,
together with any person or company acting jointly or in concert with the holder
(the "Joint Actors") would in the aggregate beneficially own, or exercise
control or direction over that number of voting securities of the Issuer which
is twenty percent (20%) or greater of the total issued and outstanding voting
securities of the Issuer, immediately after giving effect to such exercise. For
greater certainty, the Warrants represented by this certificate shall not be
exercisable by the Warrantholder, in whole or in part, and the Issuer shall not
give effect to any such exercise of the Warrants, if, after giving effect to
such exercise, the Warrantholder, together with its Joint Actors, would be
deemed to hold a number of voting securities sufficient to materially affect the
control of the Issuer.
Upon the due exercise of the Warrants, the Issuer shall issue or cause to be
issued the requisite number of Shares to be issued to the Holder pursuant to
said exercise, registered in the name of the Holder or such other person as may
be requested by the Holder, and each such person shall become the holder of such
Shares with effect from the date of such exercise. If Shares are to be issued to
a person other than the Holder, the Holder's signature on the Subscription Form
must be medallion guaranteed by a Canadian chartered bank, a Canadian trust
company or a an investment dealer who is a member of a recognized stock
exchange.
The Issuer will cause the certificates representing such Shares to be mailed to
the address(es) specified in the Subscription Form or, in the absence of such
instructions, to the Holder at the address stated above, within three business
days of the exercise of the Warrants.
Upon the exercise of a Warrant, all rights under the Warrant, other than the
right to receive certificates representing the Shares to which the Holder is
entitled on such exercise, shall wholly cease and terminate and such Warrants
shall be void and of no further effect or value.
The Issuer covenants and agrees that the Shares which may be issued upon the
exercise of the rights represented by these Warrants will, upon issuance, be
fully paid and non-assessable and free of all liens, charges and encumbrances.
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3. PARTIAL EXERCISE, EXCHANGE AND REPLACEMENT OF CERTIFICATES
The Warrants represented by this Warrant Certificate may be exercised in whole
or in part from time to time. If the Warrants are exercised in part, the Issuer
shall deliver, with the Shares issued pursuant to such exercise, a new Warrant
Certificate representing the balance of the Warrants remaining unexercised.
This Warrant Certificate may be exchanged, upon its surrender to the Issuer and
payment of such administration fee as the Issuer may require, for new Warrant
Certificates of like tenor in denominations which in the aggregate represent the
right to subscribe for and receive the number of Shares which may be subscribed
for hereunder.
If this Warrant Certificate is lost, stolen, mutilated or destroyed, the Issuer
may on such terms as it may in its discretion impose, including but not limited
to the payment of any administration fee and the provision of any indemnity by
the Holder, issue and countersign a new Warrant Certificate of like tenor,
denomination and date as the Warrant Certificate so lost, stolen, mutilated or
destroyed.
All Warrants shall rank pari passu, notwithstanding the actual date of issue
thereof.
4. HOLDING OF WARRANTS
The Issuer may treat the Holder as the absolute owner of the Warrants
represented hereby for all purposes, and the Issuer shall not be affected by any
notice or knowledge to the contrary except where the Issuer is required to take
notice by statute or by order of a court of competent jurisdiction.
Nothing in this Warrant Certificate or in the holding of a Warrant evidenced
hereby shall be construed as conferring upon the Holder any right or interest
whatsoever as a shareholder of the Issuer or entitle the Holder to any right or
interest in respect of any Shares except as herein expressly provided.
5. ANTI-DILUTION PROTECTION:
(1) Definitions: For the purposes of this section 5, unless there is something
in the subject matter or context inconsistent therewith, the words and
terms defined below shall have the respective meanings specified therefor
in this subsection:
(a) "Adjustment Period" means the period commencing on the date of issue
of the Warrants and ending at the Expiry Time;
(b) "Current Market Price" of the Shares at any date means the price per
share equal to the weighted average price at which the Shares have
traded on the TSX Venture Exchange or, if the Shares are not then
listed on the TSX Venture Exchange, on such other Canadian stock
exchange as may be selected by the directors of the Issuer for such
purpose or, if the Shares are not then listed on any Canadian stock
exchange, in the over-the-counter market, or in the United States,
the Over-the-Counter Bulletin Board, the NASDAQ Small Cap Market, or
the American Stock Exchange, during the period of any twenty
consecutive trading days ending not more than five business days
before such date; provided that the weighted average price shall be
determined by dividing the aggregate sale price of all Shares sold
on the said exchange or market, as the case may be, during the said
twenty consecutive trading days by the total number of Shares so
sold; and provided further that if the Shares are not then listed on
any Canadian stock exchange or traded in the over-the-counter
market, then the Current Market Price shall be determined by a firm
of independent chartered accountants selected by the directors of
the Issuer;
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(c) "director" means a director of the Issuer for the time being and,
unless otherwise specified herein, a reference to action "by the
directors" means action by the directors of the Issuer as a board
or, whenever empowered, action by the executive committee of such
board; and
(d) "trading day" with respect to a stock exchange or over-the-counter
market means a day on which such stock exchange or market is open
for business.
(2) Adjustments: The Exercise Price and the number of Shares issuable to the
Warrantholder upon the exercise of the Warrants shall be subject to
adjustment from time to time in the events and in the manner provided as
follows:
(a) If at any time during the Adjustment Period the Issuer shall:
i. fix a record date for the issue of, or issue, Shares to the
holders of all or substantially all of the outstanding Shares
by way of a stock dividend;
ii. fix a record date for the distribution to, or make a
distribution to, the holders of all or substantially all of
the outstanding Shares payable in Shares or securities
exchangeable for or convertible into Shares;
iii. subdivide the outstanding Shares into a greater number of
Shares; or
iv. consolidate the outstanding Shares into a smaller number of
Shares, (any of such events in subclauses (i), (ii), (iii) and
(iv) above being herein called a "Share Reorganization"), the
Exercise Price shall be adjusted on the earlier of the record
date on which holders of Shares are determined for the
purposes of the Share Reorganization and the effective date of
the Share Reorganization to the amount determined by
multiplying the Exercise Price in effect immediately prior to
such record date or effective date, as the case may be, by a
fraction:
A. the numerator of which shall be the number of Shares
outstanding on such record date or effective date, as
the case may be, before giving effect to such Share
Reorganization; and
B. the denominator of which shall be the number of Shares
which shall be outstanding immediately after giving
effect to such Share Reorganization (including in the
case of a distribution of securities exchangeable for or
convertible into Shares the number of Shares that would
have been outstanding had such securities been exchanged
for or converted into Shares on such date).
To the extent that any adjustment in the Exercise Price occurs
pursuant to this clause 1(1)(a) as a result of the fixing by the
Issuer of a record date for the distribution of securities
exchangeable for or convertible into Shares, the Exercise Price
shall be readjusted immediately after the expiry of any relevant
exchange or conversion right to the Exercise Price which would then
be in effect based upon the number of Shares actually issued and
remaining issuable after such expiry and shall be further readjusted
in such manner upon the expiry of any further such right.
(b) If at any time during the Adjustment Period the Issuer shall fix a
record date for the issue or distribution to the holders of all or
substantially all of the outstanding Shares of rights, options or
warrants pursuant to which such holders are entitled, during a
period expiring not more than forty-five days after the record date
for such issue (such period being the
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"Rights Period"), to subscribe for or purchase Shares or securities
exchangeable for or convertible into Shares at a price per share to
the holder (or in the case of securities exchangeable for or
convertible into Shares, at an exchange or conversion price per
share) at the date of issue of such securities of less than 95% of
the Current Market Price of the Shares on such record date (any of
such events being called a "Rights Offering"), the Exercise Price
shall be adjusted effective immediately after the record date for
such Rights Offering to the amount determined by multiplying the
Exercise Price in effect on such record date by a fraction:
i. the numerator of which shall be the aggregate of
A. the number of Shares outstanding on the record date for
the Rights Offering, and
B. the quotient determined by dividing
(1) either (a) the product of the number of Shares
offered during the Rights Period pursuant to the
Rights Offering and the price at which such Shares
are offered, or, (b) the product of the exchange
or conversion price of the securities so offered
and the number of Shares for or into which the
securities offered pursuant to the Rights Offering
may be exchanged or converted, as the case may be,
by
(2) the Current Market Price of the Shares as of the
record date for the Rights Offering; and
ii. the denominator of which shall be the aggregate of the number
of Shares outstanding on such record date and the number of
Shares offered pursuant to the Rights Offering (including in
the case of the issue or distribution of securities
exchangeable for or convertible into Shares the number of
Shares for or into which such securities may be exchanged or
converted).
If by the terms of the rights, options, or warrants referred to in
this clause 5(2)(b), there is more than one purchase, conversion or
exchange price per Share, the aggregate price of the total number of
additional Shares offered for subscription or purchase, or the
aggregate conversion or exchange price of the convertible or
exchangeable securities so offered, shall be calculated for purposes
of the adjustment on the basis of the lowest purchase, conversion or
exchange price per Share, as the case may be. Any Shares owned by or
held for the account of the Issuer shall be deemed not to be
outstanding for the purpose of any such calculation. To the extent
that any adjustment in the Exercise Price occurs pursuant to this
clause 5(2)(b) as a result of the fixing by the Issuer of a record
date for the issue or distribution of rights, options or warrants
referred to in this clause 5(2)(b), the Exercise Price shall be
readjusted immediately after the expiry of any relevant exchange,
conversion or exercise right to the Exercise Price which would then
be in effect based upon the number of Shares actually issued and
remaining issuable after such expiry and shall be further readjusted
in such manner upon the expiry of any further such right.
(c) If at any time during the Adjustment Period the Issuer shall fix a
record date for the issue or distribution to the holders of all or
substantially all of the outstanding Shares of:
i. shares of the Issuer of any class other than Shares;
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ii. rights, options or warrants to acquire Shares or securities
exchangeable for or convertible into Shares (other than
rights, options or warrants pursuant to which holders of
Shares are entitled, during a period expiring not more than
forty-five days after the record date for such issue, to
subscribe for or purchase Shares or securities exchangeable
for or convertible into Shares at a price per share (or in the
case of securities exchangeable for or convertible into Shares
at an exchange or conversion price per share) at the date of
issue of such securities to the holder of at least 95% of the
Current Market Price of the Shares on such record date);
iii. evidences of indebtedness of the Issuer; or
iv. any property or assets of the Issuer;
and if such issue or distribution does not constitute a Share
Reorganization or a Rights Offering (any of such non-excluded events
being herein called a "Special Distribution"), the Exercise Price
shall be adjusted effective immediately after the record date for
the Special Distribution to the amount determined by multiplying the
Exercise Price in effect on the record date for the Special
Distribution by a fraction:
A. the numerator of which shall be the difference between
(1) the product of the number of Shares outstanding on
such record date and the Current Market Price of
the Shares on such record date, and
(2) the fair value, as determined by the directors of
the Issuer, to the holders of Shares of the
shares, rights, options, warrants, evidences of
indebtedness or property or assets to be issued or
distributed in the Special Distribution, and
B. the denominator of which shall be the product obtained
by multiplying the number of Shares outstanding on such
record date by the Current Market Price of the Shares on
such record date.
Any Shares owned by or held for the account of the Issuer shall be
deemed not to be outstanding for the purpose of such calculation. To
the extent that any adjustment in the Exercise Price occurs pursuant
to this clause 5(2)(c) as a result of the fixing by the Issuer of a
record date for the issue or distribution of rights, options or
warrants to acquire Shares or securities exchangeable for or
convertible into Shares referred to in this clause 5(2)(c), the
Exercise Price shall be readjusted immediately after the expiry of
any relevant exercise, exchange or conversion right to the amount
which would then be in effect based upon the number of Shares issued
and remaining issuable after such expiry and shall be further
readjusted in such manner upon the expiry of any further such right.
(d) If at any time during the Adjustment Period there shall occur:
i. a reclassification or redesignation of the Shares, any change
of the Shares into other shares or securities or any other
capital reorganization involving the Shares other than a Share
Reorganization;
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ii. a consolidation, amalgamation or merger of the Issuer with or
into another body corporate which results in a
reclassification or redesignation of the Shares or a change of
the Shares into other shares or securities;
iii. the transfer of the undertaking or assets of the Issuer as an
entirety or substantially as an entirety to another
corporation or entity;
(any of such events being called a "Capital Reorganization"), after
the effective date of the Capital Reorganization the Warrantholder
shall be entitled to receive, and shall accept, for the same
aggregate consideration, upon exercise of the Warrants, in lieu of
the number of Shares to which the Warrantholder was theretofor
entitled upon the exercise of the Warrants, the kind and aggregate
number of shares and other securities or property resulting from the
Capital Reorganization which the Warrantholder would have been
entitled to receive as a result of the Capital Reorganization if, on
the effective date thereof, the Warrantholder had been the
registered holder of the number of Shares which the Warrantholders
was theretofore entitled to purchase or receive upon the exercise of
the Warrants. If necessary, as a result of any such Capital
Reorganization, appropriate adjustments shall be made in the
application of the provisions of this Warrant Certificate with
respect to the rights and interests thereafter of the Warrantholder
to the end that the provisions shall thereafter correspondingly be
made applicable as nearly as may reasonably be possible in relation
to any shares or other securities or property thereafter deliverable
upon the exercise of the Warrants.
(e) If at any time during the Adjustment Period any adjustment or
readjustment in the Exercise Price shall occur pursuant to the
provisions of clauses 1(1)(a), (b) or (c) of this Warrant
Certificate, then the number of Shares purchasable upon the
subsequent exercise of the Warrants shall be simultaneously adjusted
or readjusted, as the case may be, by multiplying the number of
Shares purchasable upon the exercise of the Warrants immediately
prior to such adjustment or readjustment by a fraction which shall
be the reciprocal of the fraction used in the adjustment or
readjustment of the Exercise Price.
(3) Rules: The following rules and procedures shall be applicable to
adjustments made pursuant to subsection 5(2) of this Warrant Certificate:
(b) Subject to the following clauses of this subsection 5(3), any
adjustment made pursuant to subsection 5(2) of this Warrant
Certificate shall be made successively whenever an event referred to
therein shall occur.
(c) No adjustment in the Exercise Price shall be required unless such
adjustment would result in a change of at least one per cent in the
then Exercise Price and no adjustment shall be made in the number of
Shares purchasable or issuable on the exercise of the Warrants
unless it would result in a change of at least one one-hundredth of
a Share; provided, however, that any adjustments which except for
the provision of this clause (c) would otherwise have been required
to be made shall be carried forward and taken into account in any
subsequent adjustment. Notwithstanding any other provision of
subsection 5(2) of this Warrant Certificate, no adjustment of the
Exercise Price shall be made which would result in an increase in
the Exercise Price or a decrease in the number of Shares issuable
upon the exercise of the Warrants (except in respect of a
consolidation of the outstanding Shares).
(d) If at any time during the Adjustment Period the Issuer shall take
any action affecting the Shares, other than an action or event
described in subsection 5(2) of this Warrant Certificate, which in
the opinion of the directors would have a material adverse effect
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upon the rights of the Warrantholder, the Exercise Price and/or the
number of Shares purchasable under the Warrants shall be adjusted in
such manner and at such time as the directors may determine to be
equitable in the circumstances. Failure of the taking of action by
the directors so as to provide for an adjustment prior to the
effective date of any action by the Issuer affecting the Shares
shall be deemed to be conclusive evidence that the directors have
determined that it is equitable to make no adjustment in the
circumstances.
(e) If the Issuer sets a record date to determine holders of Shares for
the purpose of entitling such holders to receive any dividend or
distribution or any subscription or purchase rights and shall
thereafter and before the distribution to such holders of any such
dividend, distribution or subscription or purchase rights legally
abandon its plan to pay or deliver such dividend, distribution or
subscription or purchase rights, then no adjustment in the Exercise
Price or the number of Shares purchasable under the Warrants shall
be required by reason of the setting of such record date.
(f) No adjustment in the Exercise Price or in the number or kind of
securities purchasable on the exercise of the Warrants shall be made
in respect of any event described in section 5 of this Warrant
Certificate if the Warrantholder is entitled to participate in such
event on the same terms mutatis mutandis as if the Warrantholder had
exercised the Warrants prior to or on the record date or effective
date, as the case may be, of such event.
(g) In any case in which this Warrant Certificate shall require that an
adjustment shall become effective immediately after a record date
for an event referred to in subsection 5(2) hereof, the Issuer may
defer, until the occurrence of such event:
(i) issuing to the Warrantholder, to the extent that the Warrants
are exercised after such record date and before the occurrence
of such event, the additional Shares issuable upon such
exercise by reason of the adjustment required by such event;
and
(ii) delivering to the Warrantholder any distribution declared with
respect to such additional Shares after such record date and
before such event; provided, however, that the Issuer shall
deliver to the Warrantholder an appropriate instrument
evidencing the right of the Warrantholder upon the occurrence
of the event requiring the adjustment, to an adjustment in the
Exercise Price or the number of Shares purchasable upon the
exercise of the Warrants and to such distribution declared
with respect to any such additional Shares issuable on the
exercise of the Warrants.
(h) If a dispute shall at any time arise with respect to any adjustment
of the Exercise Price or the number of Shares purchasable pursuant
to the Warrants, such dispute shall be conclusively determined by
the auditors of the Issuer or if they are unable or unwillingly to
act by such other firm of independent chartered accountants as may
be selected by the directors.
(4) Taking of Actions: As a condition precedent to the taking of any action
which would require an adjustment pursuant to subsection 5(2) of this
certificate the Issuer shall take any action which may, in the opinion of
counsel, be necessary in order that the Issuer may validly and legally
issue as fully paid and non-assessable shares all of the Shares which the
Warrantholder is entitled to receive in accordance with the provisions of
this certificate.
(5) Notice: At least 21 days prior to the earlier of the record date or
effective date of any event which requires or might require an adjustment
in any of the rights of the Warrantholder under this
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certificate, including the Exercise Price or the number of Shares which
may be purchased under this certificate, the Issuer shall deliver to the
Warrantholder a certificate of the Issuer specifying the particulars of
such event and, if determinable, the required adjustment and the
calculation of such adjustment. In case any adjustment for which a notice
in this subsection has been given is not then determinable, the Issuer
shall promptly after such adjustment is determinable deliver to the
Warrantholder a certificate providing the calculation of such adjustment.
The Issuer hereby covenants and agrees that the register of transfers and
share transfer books for the Shares will be open, and that the Issuer will
not take any action which might deprive the Warrantholder of the
opportunity of exercising the rights of subscription contained in this
Warrant Certificate, during such 21 day period.
6. TRANSFER OF WARRANTS
Subject to the terms hereof, this Warrant may be transferred, subject to the
terms set forth in the Transfer Form. No transfer of this Warrant shall be
effective unless this Warrant certificate is accompanied by a duly executed
Transfer Form or other instrument of transfer in such form as the Issuer may
from time to time prescribe, together with such evidence of the genuineness of
each endorsement, execution and authorization and of other matters as may
reasonably be required by the Issuer, are delivered to the Issuer. No transfer
of this Warrant shall be made if in the opinion of counsel to the Issuer such
transfer would result in the violation of any applicable securities laws.
7. MISCELLANEOUS PROVISIONS
The Issuer hereby represents and warrants that it is authorized to create and
issue the Warrants and covenants and agrees that it will cause the Shares from
time to time subscribed for and purchased in the manner provided in this Warrant
Certificate and the certificate representing such Shares to be issued and that,
at all times prior to the Expiry Time, it will reserve and there will remain
unissued a sufficient number of Shares to satisfy the right of purchase provided
for in this Warrant Certificate. The Issuer hereby further covenants and agrees
that it will at its expense expeditiously use its best efforts to obtain the
listing of such Shares (subject to issue or notice of issue) on the TSX Venture
Exchange. All Shares which are issued upon the exercise of the right of purchase
provided in this Warrant Certificate, upon payment therefor of the amount at
which such Shares may be purchased pursuant to the provisions of this Warrant
Certificate, shall be and be deemed to be fully paid and non-assessable shares
and free from all taxes, liens and charges with respect to the issue thereof.
The Issuer hereby represents and warrants that this Warrant Certificate is a
valid and enforceable obligation of the Issuer, enforceable in accordance with
the provisions of this Warrant Certificate. The Issuer shall make all requisite
filings under the Securities Act (British Columbia) and the Securities Act
(Alberta), and the respective regulations made thereunder including those
necessary to remain a reporting issuer not in default of any requirement of such
acts and regulations.
The Issuer acknowledges that it is bound by the provisions of the Registration
Rights Agreement entered into between the Issuer and the Holder.
The Issuer hereby covenants and agrees that it will do, execute, acknowledge and
deliver, or cause to be done, executed, acknowledged and delivered, all and
every such other act, deed and assurance as the Warrantholder shall reasonably
require for the better accomplishing and effectuating of the intentions and
provisions of this Warrant Certificate.
The Issuer may purchase, at any time and from time to time, in the market by way
of invitation for tender (including a purchase through an investment dealer or
member firm on a stock exchange), by private contract or otherwise, all or any
portion of the Warrants on such terms as the Issuer may determine. All Warrants
purchased pursuant to the provisions hereof shall be cancelled forthwith by the
Issuer and shall not be reissued.
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Any delivery or surrender of documents shall be valid and effective if delivered
personally or if sent by registered letter, postage prepaid. Any notice shall be
valid and effective if made in writing and transmitted as aforementioned or if
transmitted by electronic facsimile tested for reception prior to use, addressed
to:
(a) if to the Issuer,
BPI Industries Inc.
Suite 1500, 885 West Georgia Street
Vancouver, BC, V6C 3E8
Facsimile: (604) 601-2024
(b) if to the Holder, at its address appearing in the register of
holders of Warrants maintained by the Issuer,
and shall be deemed to have been effectively given, made and received on the
date of personal delivery, if delivered; or on the fourth business day after the
time of mailing or upon actual receipt, whichever is sooner, if sent by
registered letter; or on the first business day after the time of facsimile
transmission, if sent by facsimile. In the case of a disruption in postal
services, any delivery, surrender of documents or notice sent by mail shall not
be deemed to have been effectively given, made or received until it is actually
delivered. The Issuer and the Holder may from time to time change their address
for service hereunder by notice in writing delivered in one of the foregoing
manners.
Except as herein provided, any and all of the rights conferred upon the Holder
herein may be enforced by the Holder through appropriate legal proceedings. No
recourse under or upon any covenant, obligation or agreement herein contained
shall be had against any shareholder, officer or director of the Issuer, either
directly or through the Issuer, it being expressly agreed and declared that the
obligations under the Warrants represented by this Warrant Certificate are
solely corporate obligations of the Issuer and no personal liability whatsoever
shall attach to or be incurred by the shareholders, officers or directors of the
Issuer in respect thereof, and that any and all rights and claims against every
such shareholder, officer or director are expressly waived as a condition of and
as a consideration for the issue of the Warrants represented by this Warrant
Certificate.
This Warrant shall be governed in accordance with the laws of British Columbia
and the laws of Canada applicable therein. The parties hereby attorn to the
jurisdiction of the courts of British Columbia in the event of any dispute
hereunder. Time shall be of the essence hereof.
IN WITNESS WHEREOF the Issuer has caused this Warrant Certificate to be signed
by its duly authorized officer as of the ______ of ___________ , 2004.
BPI INDUSTRIES INC.
By:
_______________________
Authorized Signatory
NO. _______________
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SCHEDULE "A"
SUBSCRIPTION FORM
TO: BPI Industries Inc. (the "ISSUER")
Suite 1500, 885 West Georgia Street, Vancouver, BC, V6C 3E8
Facsimile: (604) 601-2024
The Undersigned, being the registered holder of the enclosed Warrant Certificate
issued by the Issuer, does hereby irrevocably exercise_________ of the Warrants
evidenced thereby in accordance with the terms thereof, and accordingly hereby
irrevocably subscribes for the common shares (the "SHARES") of the Issuer to be
received thereon and irrevocably surrenders the Warrant Certificate to the
Issuer for such purpose.
The capitalized terms used herein have the meanings set forth in the
Instructions below. In connection with the exercise of the warrant certificate,
the undersigned represents as follows: (Please check the ONE box applicable):
[] 1. CHECK THIS BOX IF THE COMMON SHARES ISSUABLE UPON EXERCISE OF THE
WARRANTS ARE CATEGORY 1 SECURITIES: The undersigned hereby certifies
that (i) at the time of exercise, it is not within the United States
and did not execute this Subscription Form while within the United
States and (ii) it is not exercising any of the Warrants represented
by the Warrant Certificate by or on behalf of any person within the
United States.
[] 2. CHECK THIS BOX IF THE COMMON SHARES ISSUABLE UPON EXERCISE OF THE
WARRANTS ARE CATEGORY 2 SECURITIES: The undersigned hereby certifies
that (i) at the time of exercise, it is not within the United States
and did not execute this Subscription Form while within the United
States, (ii) it is not (and is not exercising the Warrant for the
account or benefit of) a U.S. Person; and (iii) it has in all other
respects complied with the terms of Regulation S.
[] 3. CHECK THIS BOX IF THE COMMON SHARES ISSUABLE UPON EXERCISE OF THE
WARRANTS ARE (a) CATEGORY 3 SECURITIES OR (b) CATEGORY 2 SECURITIES
BEING PURCHASED BY A U.S. PERSON: The undersigned hereby certifies
that (i) it was the original purchaser in the Issuer's private
placement of the Units which the Warrants were issued, (ii) it is an
Accredited Investor and (iii) the representations and warranties
made to the Issuer in connection with the acquisition of the Units
remain true and correct on the date of this subscription form.
[] 4. CHECK THIS BOX IF NONE OF THE ABOVE APPLY: The undersigned is
delivering a written opinion of U.S. Counsel to the effect that the
Warrants and the Common Shares to be delivered upon exercise hereof
have been registered under the United States Securities Act of 1933
as amended (the "US Securities Act") or are exempt from registration
thereunder.
The undersigned holder understands that unless Box 1 or 2 above is checked, the
certificate representing the Issuer's Commons Shares issued upon exercise of
this Warrant will bear the following restrictive legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "US SECURITIES
ACT"). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE
BENEFIT OF THE CORPORATION THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED ONLY (A) TO THE
CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF
REGULATION S UNDER THE US SECURITIES ACT, (C) WITHIN THE UNITED STATES IN
ACCORDANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE US SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER, IF APPLICABLE, AND IN COMPLIANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS, OR (D) IN COMPLIANCE WITH CERTAIN
OTHER PROCEDURES SATISFACTORY TO THE CORPORATION. DELIVERY OF THIS
CERTIFICATE MAY NOT CONSTITUTE "GOOD DELIVERY" IN SETTLEMENT OF
TRANSACTIONS ON STOCK EXCHANGES IN CANADA. IF, AT ANY TIME WHEN THE
CORPORATION IS A "FOREIGN ISSUER" AS DEFINED IN REGULATION S UNDER THE US
SECURITIES ACT, THESE SECURITIES ARE BEING SOLD IN COMPLIANCE WITH RULE
904 OF REGULATION S UNDER THE US SECURITIES ACT, A NEW CERTIFICATE BEARING
NO LEGEND MAY, SUBJECT TO COMPLIANCE WITH APPLICABLE NON-U.S. LAWS, BE
OBTAINED FROM THE TRANSFER AGENT OF THE CORPORATION, UPON DELIVERY OF THIS
CERTIFICATE AND A DULY EXECUTED DECLARATION, IN A FORM SATISFACTORY TO THE
CORPORATION, TO THE EFFECT THAT SUCH SALE IS BEING MADE IN ACCORDANCE WITH
RULE 904 OF REGULATION S UNDER THE US SECURITIES ACT."
Provided that if at the time the Issuer is a Foreign Issuer, Common Shares
bearing such legend are being sold outside the United States in compliance with
Rule 904 of Regulation S under the U.S. Securities Act and in compliance with
applicable Canadian provincial and federal laws and regulations, the Issuer
shall use its reasonable best efforts to cause the legend to be removed within
three (3) business days upon delivery of the certificate and a duly executed
declaration to the registrar and transfer agent in the form attached hereto as
Schedule "C" to the Warrant Certificate (or as the Issuer may reasonably
prescribe from time to time) provided, further, that if any such Common Shares
are being sold pursuant to Rule 144 under the U.S. Securities Act, the legend
may be removed by delivery to the registrar and transfer agent of an opinion of
counsel in form and substance satisfactory to the Issuer, to the effect that the
legend is no longer required under applicable requirements of the U.S.
Securities Act or state securities laws.
If any Warrants represented by this Warrant Certificate are not being exercised,
a new Warrant Certificate will be issued and delivered with the Common Share
certificates.
The undersigned hereby directs that the Shares hereby subscribed for be issued
and delivered as follows:
NAME(S) IN FULL ADDRESSES NUMBER OF SHARES
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(a) PLEASE PRINT FULL NAMES IN WHICH THE SHARE CERTIFICATES ARE TO BE ISSUED,
STATING WHETHER MR., MRS., MISS, OR MS.
(b) IF ANY OF THE SHARES ARE TO BE ISSUED TO A PERSON OR PERSONS OTHER THAN
THE UNDERSIGNED, THE UNDERSIGNED MUST PAY TO THE ISSUER ALL REQUISITE
TRANSFER TAXES AND/OR FEES AND THE UNDERSIGNED HEREBY CERTIFIES THAT THERE
IS NO CHANGE IN THE BENEFICIAL OWNERSHIP RELATIVE TO THE UNDERSIGNED AND
THE HOLDER OF SAID SHARES.
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DATED the___day of________, 200___.
}
}
_____________________________ } ___________________________________________
Signature of Witness thereof Signature of registered holder or Signatory
[PLEASE NOTE INSTRUCTION 4] }
}
} ___________________________________________
If applicable, print Name and Office of
} Signatory
}
} ___________________________________________
Print Name of registered holder as on
} certificate
}
} ___________________________________________
Street Address
}
}
} ___________________________________________
City, Province and Postal Code
}
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INSTRUCTIONS:
1. The registered holder of a Warrant may exercise its right to convert the
Warrant into Shares by completing and surrendering this Subscription Form
and the ORIGINAL Warrant Certificate representing the Warrants being
converted to the Issuer, as provided for in the Warrant Certificate.
Certificates representing the Shares to be acquired on exercise will be
sent by prepaid ordinary mail to the address(es) above within three
business days after the receipt of all required documentation.
2. If this Subscription Form is signed by a trustee, executor, administrator,
curator, guardian, attorney, officer of a corporation or any other person
acting in a fiduciary or representative capacity, this Subscription Form
must be accompanied by evidence of authority to sign satisfactory to the
Issuer.
3. If this Subscription Form indicates that Shares are to be issued to a
person or persons other than the registered holder of the Warrant to be
converted: (i) the signature of the registered holder on this Subscription
Form must be medallion guaranteed by an authorized officer of a chartered
bank, trust company or an investment dealer who is a member of a
recognized stock exchange, and (ii) the registered holder must pay to the
Issuer all applicable taxes and other duties.
4. For the purposes of this Subscription Form capitalized terms used herein
have the meanings set forth below.
"ACCREDITED INVESTOR" means "accredited investor" as that term is defined
in Rule 501(a) of Regulation D;
"CATEGORY 1 SECURITIES" means securities eligible for issuance under
Category 1 as set forth under Rule 903(b)(1) of Regulation S and includes
equity securities of a Foreign Issuer that are offered and sold in an
Off-Shore Transaction and without Directed Selling Efforts; provided that
there is no Substantial U.S. Market Interest in such equity securities;
"CATEGORY 2 SECURITIES" means securities eligible for issuance under
Category 2 as set forth under Rule 903(b)(2) of Regulation S and includes
equity securities of a Foreign Reporting Issuer, with a Substantial U.S.
Market Interest in such equity securities, offered and sold in an
Off-Shore Transaction and without Directed Selling Efforts; provided that
such offer or sale is not made to a U.S. Person or for the account or
benefit of a U.S. Person and the notice and confirmation requirements set
forth in Rule 903(b)(2)(iii) are satisfied;
"CATEGORY 3 SECURITIES" means securities eligible for issuance under
Category 3 as set forth under Rule 903(b)(3) of Regulation S and includes
equity securities that are not eligible for issuance as Category 1
Securities or Category 2 Securities.
"FOREIGN ISSUER" means "foreign issuer" as that term is defined in
Regulation S;
"FOREIGN REPORTING ISSUER" means a Foreign Issuer that is a "reporting
issuer" as that term is defined in Regulation S;
"OFF-SHORE TRANSACTION" means "off-shore transaction" as that term is
defined in Regulation S;
"REGULATION D" means Regulation D of the U.S. Securities Act;
"REGULATION S" means Regulation S of the U.S. Securities Act;
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"SUBSTANTIAL U.S. MARKET INTEREST" means "substantial U.S. market
interest" as that term is defined in Regulation S;
"UNITED STATES" means United States as that term is defined in Regulation
S;
"U.S. PERSON" means U.S. Person as that term is defined in Regulation S;
and
"U.S. SECURITIES ACT" means the United States Securities Act of 1933, as
amended.
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SCHEDULE "B"
TRANSFER FORM
For value received, the undersigned hereby sells, transfers and assigns
unto ______________________________________________________________
(please print name of transferee)
of ____________________________________
____________________________________
____________________________________
(please print address of transferee)
__________________________________________________________ Warrants represented
(please insert number of Warrants to be transferred)
by the within certificate.
DATED this day of , 20 .
______________________________
NOTICE: THE SIGNATURE TO THIS
TRANSFER MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE, IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT, OR
ANY CHANGE WHATEVER
Signature
guaranteed by: ___________________________________
NOTICE: THE TRANSFER CANNOT BE PROCESSED WITHOUT
GUARANTEES OF ALL SIGNATURES, BY ONE OF THE
FOLLOWING:
IF THE COMPANY IS TRADING ON THE TSX-V, BY
A CANADIAN SCHEDULE I CHARTERED BANK, A MAJOR
TRUST COMPANY IN CANADA, OR A MEMBER OF ONE OF THE
RECOGNIZED MEDALLION PROGRAMS - SECURITIES
TRANSFER AGENTS MEDALLION PROGRAM ("STAMP"); STOCK
EXCHANGES MEDALLION PROGRAM ("SEMP"); OR NEW YROK
STOCK EXCHANGE, INC. MEDALLION PROGRAM ("MSP").
IF THE COMPANY IS TRADING IN THE UNITED STATES, BY A
NASD MEMBER FIRM, OR A BANK OR TRUST COMPANY
PARTICIPATING IN THE "MEDALLION GUARANTEE"
PROGRAM IN THE UNITED STATES.
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SCHEDULE "C"
FORM OF DECLARATION FOR REMOVAL OF U.S. LEGEND
To: Registrar and Transfer Agent for the Common Shares of BPI Industries Inc.
(the "Company")
The undersigned (a) acknowledges that the sale of the securities of the Company
to which this declaration relates is being made in reliance on Rule 904 of
Regulation S under the United States Securities Act of 1933, as amended (the
"U.S. Securities Act") and (b) certifies that (1) the undersigned is not an
affiliate of the Company (as that term is defined in Rule 405 under the U.S.
Securities Act), (2) the offer of such securities was not made to a person in
the United States and either (A) at the time the buy order was originated, the
buyer was outside the United States, or the seller and any person acting on its
behalf reasonably believe that the buyer was outside the United States or (B)
the transaction was executed on or through the facilities of a "designated
off-shore securities market" (as such terms is defined in Rule 902(b) of
Regulation S under the 1933 Act), including The Toronto Stock Exchange and the
TSX Venture Exchange, and neither the seller nor any person acting on its behalf
knows that the transaction has been prearranged with a buyer in the United
States, (3) neither the seller nor any affiliate of the seller nor any person
acting on any of their behalf has engaged or will engage in any directed selling
efforts in the United States in connection with the offer and sale of such
securities, (4) the sale is bona fide and not for the purpose of "washing off"
the resale restrictions imposed because the securities are "restricted
securities" (as that term is defined in Rule 144(a)(3) under the U.S. Securities
Act), (5) the seller does not have a short position in the securities sold in
reliance on Rule 904 of Regulation S under the U.S. Securities Act and does not
intend to replace such securities with fungible unrestricted securities, and (6)
the contemplated sale is not a transaction, or part of a series of transactions,
which, although in technical compliance with Regulation S, is part of a plan or
scheme to evade the registration provisions of the U.S. Securities Act. Terms
used herein have the meanings given to them by Regulation S.
DATED:_________________________________
By:
___________________________________
Name:
___________________________________
Title:
Affirmation by Seller's Broker-Dealer
We have read the foregoing representations of our customer,
_________________________________ (the "Seller") dated _______________________,
with regard to our sale, for such Seller's account, of the _________________
shares of common shares, represented by certificate number ______________ (the
"Shares"), of BPI Industries Inc. and on behalf of ourselves we certify and
affirm that (A) we have no knowledge that the transaction had been prearranged
with a buyer in the United States, (B) the transaction was executed on or
through the facilities of The Toronto Stock Exchange or the TSX Venture Exchange
and (C) neither we, nor any person acting on our behalf, engaged in any directed
selling efforts in connection with the offer and sale of such securities. Terms
used herein have the meanings given to them by Regulation S.
________________________________________
Name of Firm
By: ___________________________________
Authorized officer
Date:___________________________________
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