EXHIBIT 4.5 REFINERY SCIENCE CORP. WARRANT TO PURCHASE COMMON STOCK Warrant No.: __________________ Number of Shares: ___________ Warrant Exercise Price: $15.00 Expiration Date: _____________, 2009

 

 

 

Warrant No.: __________________

Number of Shares:             ___________ Warrant Exercise Price:     $15.00 Expiration Date:                  _____________, 2009

Date of Issuance: ______________, 2009

THIS IS TO CERTIFY that, for value received and subject to these terms and conditions, _______________, or such person to whom this Warrant is transferred (the “Holder”), is entitled to exercise this Warrant to purchase ______________ fully paid and nonassessable shares of Refinery Science Corp., a Texas corporation (the “Company”), $.001 par value per share, Common Stock (the “Warrant Stock”) at a price per share of $15.00 (the “Exercise Price”) (such number of shares, type of security and the Exercise Price being subject to adjustment as provided below).

1. Method of Exercise. Subject to Section 4, this Warrant may be exercised by the Holder, at any time after the date of issuance, but not later than ______________, 2009 (the “Exercise Period”), in whole by delivering to the Company (i) this Warrant certificate, (ii) a certified or cashier’s check payable to the Company in the amount of the Exercise Price multiplied by the number of shares for which this Warrant is being exercised (the “Purchase Price”), and (iii) the Notice of Exercise attached as Exhibit A duly completed and executed by the Holder. Upon exercise, the Holder shall be entitled to receive from the Company a stock certificate in proper form representing the number of shares of Warrant Stock purchased.

2. Delivery of Stock Certificates; No Fractional Shares.

2.1 Within 14 days after the payment of the Purchase Price following the exercise of this Warrant, the Company at its expense shall issue in the name of and deliver to the Holder a certificate or certificates for the number of fully paid and nonassessable shares of Warrant Stock to which the Holder shall be entitled upon such exercise. The Holder shall for all purposes be deemed to have become the holder of record of such shares of Warrant Stock on the date this Warrant was exercised, irrespective of the date of delivery of the certificate or certificates representing the Warrant Stock; provided that, if the date such exercise is made is a date when the stock transfer books of the Company are closed, such person shall be deemed to have become the holder of record of such shares of Warrant Stock at the close of business on the next succeeding date on which the stock transfer books are open.

2.2 No fractional shares shall be issued upon the exercise of this Warrant. In lieu of fractional shares, the Company shall pay the Holder a sum in cash equal to such fraction multiplied by the Exercise Price.

 

3. Covenants as to Warrant Stock. The Company covenants that at all times during the Exercise Period there shall be reserved for issuance and delivery upon exercise of this Warrant such number of shares of Warrant Stock as is necessary for exercise in full of this Warrant and, from time to time, it will take all steps necessary to amend its Certificate of Incorporation to provide sufficient reserves of shares of Warrant Stock. All shares of Warrant Stock issued pursuant to the exercise of this Warrant will, upon their issuance, be validly issued and outstanding, fully paid and nonassessable, free and clear of all liens and other encumbrances or restrictions on sale and free and clear of all preemptive rights, except restrictions arising (i) under federal and state securities laws, (ii) not by or through the Company, or (iii) by agreement between the Company and the Holder or its successors.

4. Adjustments; Termination of Warrant Upon Certain Events.

4.1 Effect of Reorganization -- Change in Control; Termination of Warrant. Upon a merger, consolidation, acquisition of all or substantially all of the property or stock, liquidation or other reorganization of the Company (collectively, a “Reorganization”) during the Exercise Period, as a result of which the stockholders of the Company receive cash, stock or other property in exchange for their shares of Warrant Stock and the holders of the Company’s voting equity securities immediately prior to such Reorganization together own less than a majority interest of the voting equity securities of the successor corporation following such Reorganization, the Holder shall be given notice of such proposed action as provided in Section 6. If the proposed action is approved according to applicable law by the shareholders of all corporations or other entities that are parties to the proposed action, the Holder shall be so notified in writing by the Company by registered or certified mail at least 10 business days before its effectiveness. Notwithstanding the period of exercisability stated on the face of this Warrant, this Warrant shall become forever null and void to the extent not exercised on or before 5:00 p.m., Central Time, on the tenth business day following the delivery of such notice.

4.2 Adjustments for Stock Splits, Dividends. If the Company shall issue any shares of the same class as the Warrant Stock as a stock dividend or subdivide the number of outstanding shares of such class into a greater number of shares, then, in either such case, the Exercise Price in effect before such dividend or subdivision shall be proportionately reduced and the number of shares of Warrant Stock at that time issuable pursuant to the exercise of this Warrant shall be proportionately increased; and, conversely, if the Company shall contract the number of outstanding shares of the same class as the Warrant Stock by combining such shares into a smaller number of shares, then the Exercise Price in effect before such combination shall be proportionately increased and the number of shares of Warrant Stock at that time issuable pursuant to the exercise or conversion of this Warrant shall be proportionately decreased. Each adjustment in the number of shares of Warrant Stock issuable shall be to the nearest whole share.

5. Exchange of Warrant; Lost or Damaged Warrant Certificate. This Warrant is exchangeable upon its surrender by the Holder at the office of the Company. Upon receipt by the Company of satisfactory evidence of the loss, theft, destruction or damage of this Warrant and either (in the case of loss, theft or destruction) reasonable indemnification (including posting of a bond) or (in the case of damage) the surrender of this Warrant for cancellation, the Company will execute and deliver to the Holder, without charge, a new Warrant of like denomination.

 

6. Notices of Record Date, etc. In the event of a (i) reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company, or any transfer of all or substantially all the assets of the Company to, or consolidation or merger of, the Company with or into any person, or (ii) voluntary or involuntary dissolution, liquidation or winding-up of the Company, the Company will mail to the Holder a notice of such event at least 10 business days prior to the date specified in the notice.

7. Miscellaneous.

7.1 Holder as Owner. The Company may deem and treat the holder of record of this Warrant as the absolute owner for all purposes regardless of any notice to the contrary.

7.2 No Stockholder Rights. This Warrant shall not entitle the Holder to any voting rights or any other rights as a stockholder of the Company or to any other rights except the rights stated herein; and no dividend or interest shall be payable or shall accrue in respect of this Warrant or the Warrant Stock, until this Warrant is exercised.

7.3 Notices. Unless otherwise provided, any notice under this Warrant shall be given in writing and shall be deemed effectively given (i) upon personal delivery to the party to be notified, (ii) upon confirmation of receipt by fax by the party to be notified, (iii) one business day after deposit with a reputable overnight courier, prepaid for overnight delivery and addressed as set forth in subsection (iv) of this Section 7.3, or (iv) three days after deposit with the United States Post Office, postage prepaid, registered or certified with return receipt requested and addressed to the party to be notified at the address indicated below, or at such other address as such party may designate by 10 days’ advance written notice to the other party given in the foregoing manner.

If to the Holder:

To the address last furnished

in writing to the Company by the Holder

If to the Company:

Refinery Science Corp.

3500 Doniphan Drive

El Paso, Texas 79968

Telephone No.: (915) 317-5915

Facsimile No.: (915) 842-8099

7.4 Amendments and Waivers. Any term of this Warrant may be amended and the observance of any term may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Company and the Holder. Any amendment or waiver effected in accordance with this Section 9.4 shall be binding on each future Holder and the Company.

7.5 Governing Law; Jurisdiction; Venue. This Warrant shall be governed by and construed under the laws of the state of New York without regard to principles of conflict of laws. The parties irrevocably consent to the jurisdiction and venue of the state and federal courts located in New York, New York in connection with any action relating to this Warrant.

7.6 Successors and Assigns; Transfer. This warrant shall inure to the benefit of and be binding on the respective successors and assigns of the parties.

 

IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first written above.

REFINERY SCIENCE CORP.

By:  ___________________________________

Name: ____________________________

Title: _____________________________

 

To Refinery Science Corp.:

The undersigned hereby irrevocably elects to purchase all shares of Common Stock of Refinery Science Corp. (the “Company”) issuable upon the exercise of the attached Warrant and requests that certificates for such shares be issued in the name of and delivered to the address of the undersigned, at the address stated below.

Payment enclosed in the amount of $_________________

Dated: ________________________

Name of Holder of Warrant: _____________________________________________

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Address:    _____________________________

_____________________________

_____________________________

 

Telephone No.: _________________________

E-mail Address: ________________________

Signature: ______________________________________

 

For value received the undersigned sells, assigns and transfers to the transferee named below the attached Warrant, together with all right, title and interest, and does irrevocably constitute and appoint the transfer agent of Refinery Science Corp. (the “Company”) as the undersigned’s attorney, to transfer said Warrant on the books of the Company, with full power of substitution in the premises.

Dated: _________________________________

Name of Holder of Warrant: ______________________________________________

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Address: ________________________________________________________________

Signature: ______________________________________________________________

Name of transferee: _____________________________________________________

(please print)

Address of transferee: __________________________________________________

Telephone No. of transferee: ____________________________________________

E-mail Address of Transferee: ___________________________________________