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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CECO ENVIRONMENTAL CORP.
(Exact name of registrant as specified in its charter)
New York 13-2566064
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification Number)
505 University Avenue, M5G 1X3
Toronto, Ontario CANADA (Zip Code)
(Address of Principal Executive Office)
CECO Environmental Corp.
Consulting Agreement Warrants
(Full Title of the Plan)
Leslie J. Weiss, Esq.
Sugar, Friedberg & Felsenthal
30 North LaSalle Street, Suite 2600
Chicago, Illinois 60602
(Name and address of agent for service)
(312) 704-9400
(Telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: As soon as
Practicable After Registration Statement Becomes Effective.
Page 1 of 51 Pages
Exhibit Index Begins on Page 7
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price (1) Fee(1)
Common 250,000 $2.00 $ 500,000 $139.00
Shares
par value
$0.01 per
share
Common 250,000 $3.00 $ 750,000 $208.50
Shares
par value
$0.01 per
share
Total 500,000 N/A $1,250,000 $347.50
(1) Estimated pursuant to Rule 457(g)under the Securities Act of 1933, for
the shares underlying the warrants granted pursuant to the Consulting
Agreement.
Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement also covers such additional indeterminate number of
shares as may become issuable pursuant to anti-dilution and adjustment
provisions of any Warrants to purchase shares registered hereby.
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PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
Item 1. Consulting Agreement Information.
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to the applicable consultant as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not being filed with or included in this Form S-8 (by
incorporation by reference or otherwise) in accordance with the rules and
regulations of the Securities and Exchange Commission (the "SEC"). These
documents and the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to the Consultants pursuant to Rule 428(b) or
additional information about the Consulting Agreement Warrants are available
without charge by contacting:
Phillip DeZwirek
Chief Executive Officer
CECO Environmental Corp.
505 University Avenue
Toronto, Ontario M5G 1X3
CANADA
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission pursuant to the
Securities Exchange Act of 1934 are incorporated by reference into this
Registration Statement.
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a. The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1997.
b. The Company's reports on Form 10-QSB for the quarters ending March 31,
1998, June 30, 1998 and September 30, 1998.
c. The description of the Company's Common Stock, $0.01 par value,
contained in the Company's registration statement on Form 10 filed pursuant to
Section 12(g) of the Securities Exchange Act of 1934 on April 27, 1973, which
was declared effective on September 28, 1973, including any subsequent amendment
or any report or other filing with the Securities and Exchange Commission
updating such description.
d. All reports subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 since the end
of the fiscal year covered by the Company's document referred to in (a) above,
shall be deemed to be incorporated by reference in the Registration Statement
and to be part thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interest of Named Experts and Counsel.
The validity of the Shares offered hereby will be passed upon for the
Company by Sugar, Friedberg & Felsenthal, 30 North LaSalle Street, Suite 2600,
Chicago, Illinois 60602.
Item 6. Indemnification of Officers and Directors.
The Company's By-laws provide that the Company shall indemnify any
person made, or threatened to be made, a party to an action or proceeding,
whether civil or criminal or investigative (a "proceeding"), including an action
by or in the right of the Company or any other corporation of any type or kind,
domestic or foreign, or any partnership, joint venture, trust, employee benefit
plan or other enterprise, which any director or officer of the Company served in
any capacity at the request of the Company, by reason of the fact that he, his
testator or interstate, was a director or officer of the Company, or served such
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise in any capacity, against judgment, fines, amounts paid in
settlement and reasonable expenses, including attorney's fees actually and
necessarily incurred as a result of such proceeding, or any appeal therein, if
such director or officer acted, in good faith, for a purpose which he reasonably
believed to be in, or in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the Company and, in criminal proceedings,
in addition, had no reasonable cause to believe that his conduct was unlawful.
Any determination as to whether a person has met an applicable standard
of conduct shall be made in accordance with the provisions of the Business
Corporation Law of the State of New York.
No indemnification shall be made to or on behalf of any person if a
judgment or other final adjudication adverse to such person establishes that his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or that he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
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The Company's indemnification provisions shall be enforced to the
fullest extent permitted under law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number Description
------- -----------
4.1 Consulting Agreement between CECO Environmental Corp. and
IRG Investor Relations Group Ltd. dated November 1, 1998
4.2 Warrant Agreement between CECO Environmental Corp. and
IRG Investor Relations Group Ltd. and Warrant
Certificates IRG-1 and IRG-2
5 Opinion of Counsel regarding legality
23.1 Consent of Independent Public Accountant
23.2 Consent of Counsel (Included in Exhibit 5)
24. Power of Attorney (Contained within Signature Page)
Item 9. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: To include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as
amended the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Toronto, Province of Ontario, on this 8th day of
December, 1998.
CECO ENVIRONMENTAL CORP.
By: /s/ Phillip DeZwirek
-----------------------
Phillip DeZwirek
Chief Executive Officer
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip DeZwirek, his or her
attorney-in-fact, for him or her in any and all capacities, to sign any
amendments to this Registration Statement, and to file the same, with exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorney-in-fact, or his substitute, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
Date: December 8, 1998 /s/ Phillip DeZwirek
-----------------------
Chief Executive Officer,
Chief Financial Officer
Date: December 8, 1998 /s/ Jason Louis DeZwirek
--------------------------
Jason Louis DeZwirek
Director
Date: December 8, 1998 /s/ Josephine Grivas
-------------------------
Josephine Grivas
Director
Date: December 8, 1998 /s/ Donald Wright
-------------------------
Donald Wright
Director
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EXHIBIT INDEX
Exhibit Page
Number Document Number
- ------- -------- ------
4.1 Consulting Agreement between 8
CECO Environmental Corp. and
IRG Investor Relations Group
Ltd. dated November 1, 1998
4.2 Warrant Agreement between CECO 14
Environmental Corp. and IRG
Investor Relations Group Ltd.
And Warrant Certificates
IRG - 1 and IRG - 2
5 Opinion of Counsel regarding 50
legality
23.1 Consent of Margolis & Company P.C. 51
23.2 Consent of Counsel (Included in
Exhibit 5) --
24. Power of Attorney (Contained with --
Signature Page)
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EXHIBIT 4.1
DATED: November 1, 1998
CECO ENVIRONMENTAL CORP.
- and -
IRG INVESTOR RELATIONS GROUP LTD.
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THIS CONSULTING AGREEMENT made as of the 1st day of November 1998.
BETWEEN:
CECO ENVIRONMENTAL CORP. of
Suite 1400, 505 University Avenue
Toronto, Ontario
M5G 1X3
(hereinafter referred to as the "Corporation")
OF THE FIRST PART
IRG INVESTOR RELATIONS GROUP LTD. of
4th Floor, 1286 Homer Street
Vancouver, B.C.
V6B 2Y5
(hereinafter referred to as the "Consultant")
OF THE SECOND PART
WHEREAS the Corporation wishes to retain the Consultant for its business and the
Consultant has agreed to provide such services to the Corporation.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants and agreements herein contained and for other good and valuable
consideration, it is hereby agreed by and between the parties as follows:
ARTICLE 1
Definitions
-----------
1.1 For the purpose of this Agreement, "Consulting Services" shall mean the
corporate and investor relations services relating to the business, products,
and services of the Corporation to be provided by the Consultant, and in
particular but without restricting the generality of the foregoing, includes
arranging broker and analyst meetings, contacts, arranging attendance or
representation of the Corporation at conferences of analysts and, subject to the
control and direction of the Corporation, preparing corporate and product
related materials for distribution to brokers, analysts, and investment
advisers, and distributing same to brokers, analysts and investment advisors.
The Consultant shall provide such materials to individuals upon request and the
Corporation agrees to provide the Consultant with sufficient materials to fulfil
these requests and to defray all attendant costs.
1.2 The terms "subsidiaries", "associates" and "affiliated corporations" as used
in this Agreement shall have the meanings ascribed thereto in the Company Acts
of British Columbia and Ontario.
ARTICLE 2
Engagement of the Consultant and Its Duties
-------------------------------------------
2.1 The Corporation hereby engages the services of the Consultant and the
Consultant hereby accepts the engagement of its services by the Corporation,
subject to the terms and conditions hereinafter contained and subject to
obtaining the necessary regulatory approval hereto.
2.2 The Consultant shall provide the Consulting Services to the Corporation in
such manner as the Corporation and the Consultant may reasonably agree, and
shall devote such of its time as is necessary to properly render the Consulting
Services to the Corporation, and all its effort, skills, attention and energies
during that time to the performance of its duties as herein set forth. In
addition to the foregoing, the Consultant will ensure that the services to be
provided will be carried out personally by Steven Hanson, President and sole
shareholder of the Consultant. Any assistance provided to
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the Consultant's President will be by qualified and competent employees of the
Consultant who are familiar with the Corporation's affairs, business and
products.
2.3 The Corporation acknowledges that it is aware of the Consultant's many
outside activities, duties and financial interests and agrees that the
performance of such activities and duties and involvement of such financial
interests will not be construed as a breach of this Agreement, provided that the
Consultant provides the Consulting Services on a basis which does not impair the
activities and business interests of either the Corporation or the Consultant.
2.4 In providing the Consulting Services, the Consultant will be relying upon
information received from the Corporation, and will so disclose this fact in all
communications. The Corporation agrees to provide the Consultant with such
information, financial records, documents and product information as may
facilitate the performance of the Consulting Services by the Consultant.
2.5 In the event of any misstatements, misrepresentations or omissions in
information as provided by the Corporation to the Consultant and as utilized by
the Consultant in the performance of the Consulting Services that may result in
liability to the Consultant, the Corporation agrees to indemnify and save
harmless the Consultant against any such claims or liabilities.
2.6 The Consultant agrees that it will perform the Consulting Services in
accordance with all applicable laws including, but not limited to the Securities
Exchange Commission Act of 1933 and 1934, its rules and regulations, and the
rules and policies of the NASDAQ Stock Exchange.
2.7 The Consultant agrees to indemnify and save the Corporation harmless with
respect to any claim, suit, proceedings or judgement, whether regulatory or of a
court of competent jurisdiction arising from any breach of the Agreement by the
Consultant.
2.8 The term of this Agreement shall be for a period of one (1) year commencing
on the 1st day of November 1998 and with an option for an additional year at
terms and conditions as mutually agreed upon. The indemnities provided herein at
sections 2.5 and 2.7 will survive the termination of this Agreement.
2.9 The Consultant shall at all times be an independent contractor and not the
servant or agent of the Corporation. No partnership, joint venture or agency
will be created or will be deemed to be created by this Agreement or by any
action of the parties under this Agreement. The Consultant is not an agent,
servant or employee of the Corporation, nor shall it represent itself to have
any such relationship with the Corporation. The Consultant shall be an
independent contractor with control over the manner and means of its
performance. Neither the Consultant nor its employees or agents shall be
entitled to rights or privileges applicable to employees of the Corporation
including, but not limited to, liability insurance, group insurance, pension
plans, holiday paid vacation and other benefit plans which may be available from
time to time between the Corporation and its employees.
2.10 The Consultant shall be responsible for the management of its employees and
without limiting the generality of the foregoing, shall be responsible for
payment to the proper authorities of all unemployment insurance premiums, Canada
Pension Plan contributions, Worker's Compensation premiums and all other
employment expenses for all of the Consultant's employees. The Consultant shall
be responsible for deduction and remittance of all income tax due from itself
and its employees.
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ARTICLE 3
Compensation
------------
3.1 The Corporation agrees to pay the Consultant the sum of one hundred and
fifty thousand ($150,000) United States Dollars upon execution of this Agreement
and a further one hundred and fifty thousand ($150,000) United States Dollars on
January 1, 1999. It is agreed that the payments represent advances towards
expenses to be incurred pursuant to the public relations program including
reasonable disbursements which will include travel and accommodation expenses,
printing and mailing costs, long-distance charges, outside services, and all
other out-of-pocket expenses incurred by the Consultant in the performance of
its obligations pursuant to this Agreement, provided that the Consultant will
not incur any single expenditure that exceeds $2,000 US without obtaining the
prior written consent of the Corporation. The Consultant agrees to provide the
Corporation with original receipts for disbursements and expenses incurred where
procurable. A monthly accounting will be provided of the expenses incurred and
paid from the advances. Any amount of the advances not utilized is fully
refundable net of any unreimbursed costs at the termination of this Agreement.
3.2 The Corporation agrees to grant to the Consultant, or its designate, upon
terms and conditions as determined by the various Regulatory Authorities
governing the Corporation, the sole and exclusive right and option to purchase
all or any part of two hundred and fifty thousand (250,000) common shares of its
capital as fully paid and non-assessable freely trading shares, exercisable at
$2.00 US and a further two hundred and fifty thousand (250,000) common shares
exercisable at $3.00 US for a period of two years from the date of execution of
this Agreement.
3.3 The Corporation also agrees to pay the Consultant a finders fee based on the
Lehman formula for successful closing of joint ventures, sponsorships, private
investments or other forms of financings, with introduced parties upon closing
of said ventures 5% of the first $1 million, 4% of the second $1 million, 3% of
the third $1 million, 2% of the fourth $1 million and 1% of the transaction
thereafter.
ARTICLE 4
Confidentiality
---------------
4.1 The Consultant will not, directly or indirectly, use, disseminate, disclose,
communicate, divulge, reveal, publish, use for its own benefit, copy, make notes
of, input into a computer data base or preserve in any way any confidential
information relating to the Corporation or its subsidiaries, associates or
affiliated corporations whether during the term of this Agreement or thereafter,
unless it first received written permission to do so from an authorized officer
of the Corporation.
4.2 For the purposes of this Agreement, "confidential information" is
information disclosed to or acquired by the Consultant relating to the business
of the Corporation, or its subsidiaries, associates or affiliated corporations,
their projects or the personal affairs of their directors, officers and
shareholders, including information developed or gathered by the Consultant
which has not been approved by the Corporation for public dissemination.
Confidential information does not include information in the public domain,
information released from the provisions of this Agreement by written
authorization of an authorized officer of the Corporation, information which is
part of the general skill and knowledge of the Consultant and does not relate
specifically to the business of the Corporation, and information which is
authorized by the Corporation to be disclosed in the ordinary course or is
required by law or applicable regulatory policy to be disclosed.
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ARTICLE 5
Miscellaneous
-------------
5.1 Any notice required or permitted to be given hereunder shall be given by
hand delivery, facsimile transmission or by registered mail, postage prepaid,
addressed to the parties at their respective addresses as previously set forth
and any such notices given by hand delivery or by facsimile transmission shall
be deemed to have been received on the date of delivery or transmission and if
given by prepaid registered mail, shall be deemed to have been received on the
third business day immediately following the date of mailing. The parties shall
be entitled to give notice of changes of addresses from time to time in the
manner hereinbefore provided for the giving of notice.
5.2 Time shall be the essence of this Agreement.
5.3 The provisions of this Agreement shall inure to the benefit of and be
binding upon the Corporation and the Consultant and their respective successors
and assigns. This Agreement shall not be assignable by the Consultant.
5.4 This Agreement constitutes the entire agreement between the parties hereto
pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, negotiations and discussions,
whether oral or written, of the parties hereto in connection with the subject
matter hereof. No supplement, modification, waiver or termination of this
Agreement shall be binding, unless executed in writing by the parties to be
bound thereby.
5.5 This Agreement shall be governed by the laws of British Columbia and
Ontario.
IN WITNESS WHEREOF this Agreement has been executed by the parties.
) CECO ENVIRONMENTAL CORP.
)
)
) Per:"Phillip DeZwirek"
)
) Authorized Signatory
)
)
) IRG INVESTOR RELATIONS GROUP LTD.
)
)
) Per:"Stephen Hanson"
)
) Authorized Signatory
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Exhibit 4.2
________________________________________________________________________________
CECO ENVIRONMENTAL CORP.
AND
IRG INVESTORS RELATIONS GROUP LTD.
WARRANT AGREEMENT
Dated as of November 2, 1998
________________________________________________________________________________
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WARRANT AGREEMENT (the "Agreement") dated as of November 2, 1998
between CECO Environmental Corp., a New York corporation (the "Company"), and
IRG Investors Relations Group Ltd. (hereinafter referred to as a "Holder" or
"IRG").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, IRG provides public relations services to public companies;
and
WHEREAS, IRG has agreed to provide public relations services to the
Company and the Company has agreed to engage IRG to provide public relations
services;
WHEREAS, the Company desires to grant to IRG, and IRG desires to accept
from the Company, warrant certificates giving IRG the right to purchase shares
of the Company's Common Stock.
NOW, THEREFORE, in consideration of the premises contained herein, the
payment by IRG to the Company of an aggregate of ten dollars ($10.00), the
agreements herein set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Grant. IRG is granted the right to purchase, from the Company, at
any time from November 2, 1998, until 5:30 p.m., New York time, on November 2,
2000 (the "Expiration Date"), at which time the Warrants expire, up to an
aggregate of 250,000 shares (subject to adjustment as provided in Section 11
hereof) of common stock, par value $.01 per share, of the Company ("Common
Stock") at an initial exercise price (subject to adjustment as provided in
Section 11 hereof) of $2.00 per share and up to an aggregate of 250,000 shares
(subject to adjustment as provided in Section 11 hereof) of common stock, par
value $.01 per share, of the Company ("Common Stock") at an initial exercise
price (subject to adjustment as provided in Section 11 hereof) of $3.00 per
share (both the $2.00 per share exercise price and the $3.00 per share exercise
price shall be referred to herein as the "Exercise Price").
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2. Warrant Certificates. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement shall be
in the forms set forth in Exhibits A and B, attached hereto and made a part
hereof, with such appropriate insertions, omissions, substitutions, and other
variations as required or permitted by this Agreement.
3. Registration of Warrant. The Warrants shall be numbered and shall
be registered on the books of the Company when issued.
4. Exercise of Warrant.
4.1 Method of Exercise. The Warrants initially are exercisable
at the product of (i) the Exercise Price multiplied by (ii) the number of shares
of Common Stock purchased (subject to adjustment as provided in Section 11
hereof), as set forth in Section 8 hereof payable by certified or official bank
check in United States dollars. The product of the number of Warrants exercised
at any one time multiplied by the Exercise Price shall be referred to as the
"Purchase Price." Upon surrender of a Warrant Certificate with the annexed Form
of Election to Purchase duly executed, together with payment of the Purchase
Price for the shares of Common Stock purchased at the Company's principal
offices located at 505 University Avenue, Suite 1400, Toronto, Ontario, Canada,
the registered holder of a Warrant Certificate ("Holder" or "Holders") shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased. The purchase rights represented by each Warrant Certificate are
exercisable at the option of the Holder thereof, in whole or in part (but not as
to fractional shares of the Common Stock). In the case of the purchase of less
than all the shares of Common Stock purchasable under any Warrant Certificate,
the Company shall cancel said Warrant Certificate upon the surrender thereof and
shall execute and deliver a new Warrant Certificate of like tenor for the
balance of the shares of Common Stock purchasable thereunder.
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5. Issuance of Certificates. Upon the exercise of the Warrants, the
issuance of certificates for shares of Common Stock shall be made forthwith (and
in any event within five (5) business days thereafter) without charge to the
Holder thereof including, without limitation, any tax which may be payable in
respect of the issuance thereof, and such certificates shall (subject to the
provisions of Sections 7 and 9 hereof) be issued in the name of, or in such
names as may be directed by, the Holder thereof; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any such certificates in a
name other than that of the Holder and the Company shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance 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.
The Warrant Certificates and the certificates representing the shares
of Common Stock, or other securities, property or rights issued upon exercise of
the Warrants shall be executed on behalf of the Company by the manual or
facsimile signature of the then present President or any Vice President of the
Company under its corporate seal reproduced thereon, attested to by the manual
or facsimile signature of the then present Secretary or any Assistant Secretary
of the Company. Warrant Certificates shall be dated the date of execution by the
Company upon initial issuance, division, exchange, substitution or transfer.
6. Transfer of Warrant. The Warrants shall be transferable only on the
books of the Company maintained at its principal office, where its principal
office may then be located, upon delivery thereof duly endorsed by the Holder or
by its duly authorized attorney or representative accompanied by proper evidence
of succession, assignment or authority to transfer. Upon any
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registration transfer, the Company shall execute and deliver new Warrants to the
person entitled thereto.
7. Restriction On Transfer of Warrants. The Holder of a Warrant
Certificate, by its acceptance thereof, covenants and agrees that the Warrants
are being acquired as an investment and not with a view to the distribution
thereof.
8. Exercise Price and Number of Securities. Except as otherwise
provided in Section 10 hereof, each of the Warrants are exercisable to purchase
one share of Common Stock at an initial exercise price equal to the applicable
Exercise Price. The Exercise Price and the number of shares of Common Stock for
which the Warrant may be exercised shall be the price and the number of shares
of Common Stock which shall result from time to time from any and all
adjustments in accordance with the provisions of Section 11 hereof.
9. Registration Rights.
9.1 Registration Under the Securities Act of 1933. Each
Warrant Certificate and each certificate representing the shares of Common
Stock, and any of the other securities issuable upon exercise of the Warrants
and the securities underlying the securities issuable upon exercise of the
Warrants (collectively, the "Warrant Shares") shall bear the following legend,
unless (i) such Warrants or Warrant Shares are distributed to the public or sold
for distribution to the public pursuant to this Section 9 or otherwise pursuant
to a registration statement filed under the Securities Act of 1933, as amended
(the "Act"), (ii) such Warrants or Warrant Shares are subject to a currently
effective registration statement under the Act; or (iii) the Company has
received an opinion of counsel, in form and substance reasonably satisfactory to
counsel for the Company, that such legend is unnecessary for any such
certificate:
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES
ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
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UNDER THE SECURITIES ACT OF 1933, (ii) TO THE EXTENT APPLICABLE, RULE
144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE
DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER,
THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS OR OTHER SECURITIES
REPRESENTED BY THE CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE
WARRANT AGREEMENT REFERRED TO HEREIN.
9.2 Piggyback Registration. If, at any time commencing
November 2, 1998, and expiring on the Expiration Date, the Company proposes to
register any of its securities, not registered on the date hereof, under the Act
(other than in connection with a merger or pursuant to Form S-4 or Form S-8,
unless Form S-8 can be used to register the Warrant Shares) it will give written
notice by registered mail, at least thirty (30) days prior to the filing of each
such registration statement, to the Holders of the Warrants and/or the Warrant
Shares of its intention to do so. If any of the Holders of the Warrants and/or
Warrant Shares notify the Company within twenty (20) days after mailing of any
such notice of its or their desire to include any such securities in such
proposed registration statement, the Company shall afford such Holders of the
Warrants and/or Warrant Shares the opportunity to have any such Warrant Shares
registered under such registration statement. In the event that the managing
underwriter, if any, for said offering advises the Company in writing that in
the underwriter's opinion the number of securities requested to be included in
such registration exceeds the number which can be sold in such offering without
causing a diminution in the offering price or otherwise adversely affecting the
offering, the Company will include in such registration (a) first, the
securities the Company proposes to sell, (b) second, the securities held by the
entities that made the demand for registration, (c) third, the Warrants and/or
Warrant Shares requested to be included in such registration which in the
opinion of such underwriter can be sold, pro rata among the Holders of Warrants
and/or Warrant Shares on the basis of the number of Warrants and/or Warrant
Shares requested to be registered by such Holders, and (d) fourth, other
securities requested to be included in such registration.
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Notwithstanding the provisions of this Section 9.2, the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section 9.2 (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect not to file any such proposed
registration statement or to withdraw the same after the filing but prior to the
effective date thereof.
9.3 Demand Registration.
(a) At any time commencing November 2, 1998 and
expiring on the Expiration Date, the Holders of the Warrants and/or Warrant
Shares representing a "Majority" (as hereinafter defined) of the Warrants and/or
Warrant Shares shall have the right on two occasions (which right is in addition
to the registration rights under Section 9.2 hereof), exercisable by written
notice to the Company, to have the Company prepare and file with the Securities
and Exchange Commission (the "Commission"), a registration statement and such
other documents, including a prospectus, as may be necessary in the opinion of
both counsel for the Company and counsel for the Holders, in order to comply
with the provisions of the Act, so as to permit the public sale by such Holders
and any other Holders of the Warrants and/or Warrant Shares who notify the
Company within fifteen (15) days after the Company mails notice of such request
pursuant to Section 9.3(b) hereof (collectively, the "Requesting Holders") of
their respective Warrant Shares so as to allow the unrestricted sale of the
Warrant Shares to the public from time to time until the earlier of the
following: (i) the Expiration Date, (ii) the date on which all of the Warrant
Shares requested to be registered by the Requesting Holders have been sold (the
"Registration Period") or (iii) the date on which such Warrant Shares can be
sold without registration pursuant to Rule 144 under the Act or an equivalent
exemption.
(b) The Company covenants and agrees to give written
notice of any registration request under this Section 9.3 by any Holder or
Holders
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representing a Majority of the Warrants and/or Warrant Shares to all
other registered Holders of the Warrants and the Warrant Shares within ten (10)
days from the date of the receipt of any such registration request.
9.4 Covenants of the Company With Respect to
Registration. In connection with any registration under Section 9.2 or 9.3
hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a
registration statement within ninety (90) days of receipt of any demand
therefor, and to have any registration statements declared effective at the
earliest possible time, and shall furnish each Holder desiring to sell Warrant
Shares such number of prospectuses as shall reasonably be requested. The Company
shall also file such applications and other documents as may be necessary to
permit the sale of the Warrant Shares to the public during the Registration
Period in those states to which the Company and the holders of the Warrants
and/or Warrant Shares shall mutually agree.
(b) The Company shall pay all costs (excluding fees
and expenses of Holder(s)' counsel and any underwriting
or selling commissions), fees and expenses in connection with all registration
statements filed pursuant to Sections 9.2 and 9.3(a) hereof including, without
limitation, the Company's legal and accounting fees, printing expenses, blue sky
fees and expenses. The Holder(s) will pay all costs, fees and expenses in
connection with the registration statement filed pursuant to Section 9.3(c).
(c) The Company will take all necessary action which
may be required in qualifying or registering the Warrant Shares included in a
registration statement for offering and sale under the securities or blue sky
laws of such states as reasonably are requested by the Holder(s), provided that
the Company shall not be obligated to execute or file any general consent to
service of process or to qualify as a foreign corporation to do business under
the laws of any such jurisdiction.
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(d) The Company shall indemnify the Holder(s) of the
Warrant Shares to be sold pursuant to any registration statement and each
person, if any, who controls such Holder(s) within the meaning of Section 15 of
the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), against all loss, claim, damage, expense or liability
(including all expenses reasonably incurred in investigating, preparing or
defending against any claim whatsoever) to which any of them may become subject
under the Act, the Exchange Act or otherwise, arising from such registration
statement.
(e) In order to provide for just and equitable
contribution under the Act in any case in which (i) any Holder of the Warrant
Shares or controlling person thereof makes a claim for indemnification but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that the express provisions of Section 9.4(d) hereof
provide for indemnification in such case or (ii) contribution under the Act may
be required on the part of any Holder of the Warrant Shares, or controlling
person thereof, then the Company, any such Holder of the Warrant Shares, or
controlling person thereof shall contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (which shall, for all
purposes of this Agreement, include, but not be limited to, all costs of defense
and investigation and all attorneys fees), in either such case (after
contribution from others) on the basis of relative fault as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or a Holder of
Warrant Shares, or controlling person thereof on the other and the
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parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and such Holders of
such securities and such controlling persons agree that it would not be just and
equitable if contribution pursuant to this Section 9.4(e) were determined by pro
rata allocation or by any other method which does not take account of the
equitable considerations referred to in this Section 9.4(e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section
9.4(e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The Holder(s) of the Warrant Shares to be sold
pursuant to a registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company, its officers and directors
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, against any loss, claim,
damage or expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished in writing, by or on behalf of such Holders, or their
successors or assigns, for specific inclusion in such registration statement.
(g) Nothing contained in this Agreement shall be
construed as requiring the Holder(s) to exercise their Warrants prior to the
initial filing of any registration statement or the effectiveness thereof.
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(h) The Company shall furnish to each Holder
participating in the offering and to each underwriter, if any, a signed
counterpart, addressed to such Holder or underwriter, of (i) an opinion of
counsel to the Company, dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, an opinion
dated the date of the closing under the underwriting agreement), and (ii) a
"cold comfort" letter dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, a "cold
comfort" letter dated the date of the closing under the underwriting agreement)
signed by the independent public accountants who have issued a report on the
Company's financial statements included in such registration statement, in each
case covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten public
offerings of securities.
(i) The Company shall as soon as practicable after
the effective date of the registration statement, and in any event within 15
months thereafter, make "generally available to its security holders" (within
the meaning of Rule 158 under the Act) an earnings statement (which need not be
audited) complying with Section 11(a) of the Act and covering a period of at
least 12 consecutive months beginning after the effective date of the
registration statement.
(j) The Company shall enter into an underwriting
agreement with the managing underwriters selected for such underwriting by
Holders holding a Majority of the Warrant Shares requested to be included in
such underwriting. Such agreement shall be satisfactory in form and substance to
the Company, each Holder and such managing underwriters, and shall contain such
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representations, warranties and covenants by the Company and such other terms as
are customarily contained in agreements of that type used by the managing
underwriter. The Holder(s) shall be parties to any underwriting agreement
relating to an underwritten sale of their Warrant Shares and may, at their
option, require that any or all of the representations, warranties and covenants
of the Company to or for the benefit of such underwriters shall also be made to
and for the benefit of such Holder(s). Such Holder(s) shall not be required to
make any representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holder(s) and their intended
methods of distribution.
(k) For purposes of this Agreement, the term
"Majority" in reference to the Warrants or Warrant Shares, shall mean in excess
of fifty percent (50%) of the then outstanding Warrants or Warrant Shares that
(i) are not held by the Company, or (ii) have not been resold to the public
pursuant to a registration statement filed with the Commission under the Act or
Rule 144 promulgated under the Act, or similar exemption.
10. Obligations of Holders. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 9 hereof that
each of the selling Holders shall:
(a) Furnish to the Company such information regarding
themselves, the Warrant Shares held by them, the intended method of sale or
other disposition of such securities, the identity of and compensation to be
paid to any underwriters proposed to be employed in connection with such sale or
other disposition, and such other information as may reasonably be required to
effect the registration of their Warrant Shares.
(b) Notify the Company, at any time when a prospectus
relating to the Warrant Shares covered by a registration statement is required
to be delivered under the Act, of the happening of any event with respect to
such selling Holder as a result of which the prospectus included in such
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registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
11. Adjustments to Exercise Price and Number of Securities. The
Exercise Price in effect at any time and the number and kind of securities
purchasable upon the exercise of the Warrants or the securities underlying the
Warrants shall be subject to adjustment from time to time upon the happening of
certain events as follows:
11.1 Dividend, Subdivision and Combination. In case the
Company shall (i) declare a dividend or make a distribution on its outstanding
shares of Common Stock in shares of Common Stock, (ii) subdivide or reclassify
its outstanding shares of Common Stock into a greater number of shares, or (iii)
combine or reclassify its outstanding shares of Common Stock into a smaller
number of shares, the Exercise Price in effect at the time of the record date
for such dividend or distribution or of the effective date of such subdivision,
combination or reclassification shall be adjusted so that it shall equal the
price determined by multiplying the Exercise Price by a fraction, the
denominator of which shall be the number of shares of Common Stock outstanding
after giving effect to such action, and the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such action.
Such adjustment shall be made successively whenever any event listed above shall
occur.
11.2 Adjustment in Number of Securities. Upon each adjustment
of the Exercise Price pursuant to the provisions of this Section 11, the number
of Warrant Shares issuable upon the exercise at the adjusted Exercise Price of
each Warrant shall be adjusted to the nearest number of whole shares of Common
Stock determined by multiplying a number equal to the Exercise Price in effect
immediately prior to such adjustment by the number of the applicable Warrant
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Shares issuable upon exercise of the Warrants immediately prior to such
adjustment and dividing the product so Obtained by the adjusted Exercise Price.
11.3 Definition of Common Stock. For the purpose of this
Agreement, the term "Common Stock" shall mean (i) the class of stock designated
as Common Stock in the Articles of Incorporation of the Company as of the date
hereof, or (ii) any other class of stock resulting from successive changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
11.4 Merger or Consolidation. In case of any consolidation of
the Company with, or merger of the Company into, another corporation (other than
a consolidation or merger which does not result in any reclassification or
change of the outstanding Common Stock), the corporation formed by such
consolidation or merger shall execute and deliver to each Holder a supplemental
warrant agreement providing that the Holder of each Warrant then outstanding
shall have the right thereafter (until the Expiration Date) to receive, upon
exercise of such Warrant, the kind and amount of shares of stock and other
securities and property receivable upon such consolidation or merger to which
the Holder would have been entitled if the Holder had exercised such Warrant
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental warrant agreement shall provide for adjustments which shall be
identical to the adjustments provided in this Section 11. The above provision of
this subsection shall similarly apply to successive consolidations or mergers.
11.5 No Adjustment of the Exercise Price in Certain Cases. No
adjustment of the Exercise Price shall be made:
(a) Upon the issuance or sale of the Warrants or the
Warrant Shares;
(b) Upon the issuance or sale of Common Stock (or any
other security convertible, exercisable, or exchangeable into shares of Common
Stock)
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upon the direct or indirect conversion, exercise, or exchange of any options,
rights, warrants, or other securities or indebtedness of the Company outstanding
as of the date of this Agreement or granted pursuant to any stock option plan of
the Company in existence as of the date of this Agreement, pursuant to the terms
thereof or issued pursuant to any stock purchase plan in existence as of the
date of this Agreement, pursuant to the terms thereof; or
(c) If the amount of said adjustment shall be less
than ten cents ($.10) per share, provided, however, that in such case any
adjustment that would otherwise be required then to be made shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment so carried forward, shall amount
to at least ten cents ($.10) per share.
12. Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable, without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company for a new
Warrant Certificate of like tenor and date representing in the aggregate the
Holder's right to purchase the same number of Warrant Shares in such
denominations as shall be designated in such Warrant Certificate at the time of
such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrant
Certificate, if mutilated, the Company will make and deliver a new Warrant
Certificate of like tenor, in lieu thereof.
13. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
or other securities upon the exercise of the Warrants, nor shall it be required
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to issue scrip or pay cash in lieu of fractional interests, it being the intent
of the parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of shares of Common Stock or other
securities, properties or rights.
14. Reservation and Listing of Securities. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Warrants, such
number of shares of Common Stock or other securities, properties or rights as
shall be issuable upon the exercise thereof or the exercise or conversion of any
other exercisable or convertible securities underlying the Warrants. Every
transfer agent and warrant agent (collectively "Transfer Agent") for the Common
Stock and other securities of the Company issuable upon the exercise of the
Warrants will be irrevocably authorized and directed at all times to reserve
such number of authorized shares of Common Stock and other securities as shall
be requisite for such purpose. The Company will keep a copy of this Agreement on
file with every Transfer Agent for the Common Stock and other securities of the
Company issuable upon the exercise of the Warrants. The Company will supply
every such Transfer Agent with duly executed stock and other certificates, as
appropriate, for such purpose. The Company covenants and agrees that, upon each
exercise of the Warrants and payment of the Purchase Price, all shares of Common
Stock and other securities issuable upon such exercise shall be duly and validly
issued, fully paid, non-assessable and not subject to the preemptive rights of
any stockholder. As long as the Warrants shall be outstanding, the Company shall
use its best efforts to cause all shares of Common Stock and other securities
issuable upon the exercise of the Warrants and the securities underlying the
securities issuable upon exercise of the Warrants to be listed (subject to
official notice of issuance) on all securities exchanges or securities
associations on which the Common Stock issued to the public in connection
herewith may then be listed and/or quoted.
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15. Notices to Warrant Holders. Nothing contained in this Agreement
shall be construed as conferring upon the Holder(s) of the Warrants the right to
vote or to consent or to receive notice as a stockholder in respect of any
meetings of stockholders for the election of directors or any other matter, or
as having any rights whatsoever as a stockholder of the Company. If, however, at
any time prior to the expiration of the Warrants and their exercise, any of the
following events shall occur:
(a) the Company shall take a record of the holders of
its shares of Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on the
books of the Company; or
(b) the Company shall offer to all the holders of its
Common Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation or merger) or a sale of
all or substantially all of its property, assets and business as an entirety
shall be proposed; then in any one or more of said events, the Company shall
give written notice to the registered holders of the Warrants of such event at
least fifteen (15) days prior to the date fixed as a record date or the date of
closing the transfer books for the determination of the stockholders entitled to
such dividend, distribution, convertible or exchangeable securities or
subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of closing the transfer books, as the case may be. Failure to give such
notice or any defect therein shall not affect the validity of any action
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taken in connection with the declaration or payment of any such dividend, or the
issuance of any convertible or exchangeable securities, or subscription rights,
options or warrants, or any proposed dissolution, liquidation, winding up or
sale.
16. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made and
sent when delivered, or mailed by registered or certified mail, return receipt
requested:
(a) if to the registered Holder of the Warrants, to
the address of such Holder as shown on the books of the Company; or
(b) if to the Company, to the address set forth in
Section 4 hereof or to such other address as the Company may designate by notice
to the Holders.
17. Supplements; Amendments; Entire Agreement. This Agreement contains
the entire understanding between the parties hereto with respect to the subject
matter hereof and may not be modified or amended except by a writing duly signed
by the party against whom enforcement of the modification or amendment is
sought. The Company and IRG may from time to time supplement or amend this
Agreement without the approval of any Holders of Warrant Certificates (other
than IRG) in order to cure any ambiguity, to correct or supplement any provision
contained herein which may be defective or inconsistent with any provisions
herein, or to make any other provisions in regard to matters or questions
arising hereunder which the Company and IRG may deem necessary or desirable and
which the Company and IRG deem shall not adversely affect the interests of the
Holders of Warrant Certificates.
18. Successors. All of the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, the Holder(s) and
their respective successors and assigns hereunder.
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19. Survival of Representations and Warranties. All statements in any
schedule, exhibit or certificate or other instrument delivered by or on behalf
of the parties hereto, or in connection with the transactions contemplated by
this Agreement, shall be deemed to be representations and warranties hereunder.
Notwithstanding any investigations made by or on behalf of the parties to this
Agreement, all representations, warranties and agreements made by the parties to
this Agreement or pursuant hereto shall survive.
20. Governing Law; Submission to Jurisdiction. This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of New York and for all purposes shall be construed in
accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
21. Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
22. Captions. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
23. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and IRG
and any other registered Holder(s) of the Warrant Certificates or Warrant Shares
any legal or equitable right, remedy or claim under this Agreement; and this
Agreement shall be for the sole and exclusive benefit of the Company and IRG and
any other Holder(s) of the Warrant Certificates or Warrant Shares.
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24. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
CECO ENVIRONMENTAL CORP.
By:_________________________________
Name:_______________________________
Title:______________________________
IRG INVESTOR RELATIONS GROUP LTD.
By:_________________________________
Name:_______________________________
Title:______________________________
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EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE
EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF
SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS OR OTHER SECURITIES REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO
HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, NOVEMBER 2, 2000
Warrant No.___
WARRANT CERTIFICATE
This Warrant Certificate certifies that ___________________________, or
registered assigns, is the registered holder of Warrants to purchase initially,
at any time from November 2, 1998 until 5:30 p.m., New York time, on November 2,
2000 ("Expiration Date"), up to _____________ shares, of fully-paid and
non-assessable common stock, $.01 par value ("Common Stock") of CECO
Environmental Corp., a New York corporation (the "Company"), at the initial
exercise price, subject to adjustment in certain events, of $2.00 per share upon
surrender of this Warrant Certificate and payment of the Exercise Price at the
principal executive office of the Company, but subject to the conditions set
forth herein. Payment of the Exercise Price shall be made by certified or
official bank check in United States dollars payable to the order of the
Company.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter expire and shall be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
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Upon due presentment for registration of transfer of this Warrant
Certificate at the principal executive office of the Company, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Warrant Agreement, without any charge except for any tax or
other governmental charge imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such numbered of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
This Warrant Certificate does not entitle any Warrant holder to any of
the rights of a shareholder of the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of ___________________, 199__.
ATTEST: CECO ENVIRONMENTAL CORP.
By:____________________________ Name:_________________________________[SEAL]
Secretary By:_________________________________________
Title:______________________________________
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[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 4.1 OF THE
WARRANT AGREEMENT]
The undersigned hereby irrevocably elects to exercise the right,
represented by Warrant Certificate No. ___, to purchase _______________ shares
of Common Stock (as defined in the Warrant Agreement described below) and
herewith tenders in payment for such securities a certified or official bank
check payable in United States dollars to the order of CECO Environmental Corp.,
a New York corporation (the "Company") in the amount of $____________, all in
accordance with the terms of Section 4.1 of the Warrant Agreement dated as of
November 2, 1998 between the Company and IRG Investor Relations Group Ltd. The
undersigned requests that a certificate for such securities be registered in the
name of ________________________________, whose address is _____________________
_____________________________and that such certificate be delivered to _________
_______________________________, whose address is ______________________________
_________________________________, and if said number of shares of Common Stock
shall not be all the shares of Common Stock purchasable hereunder, that a new
Warrant Certificate for the balance of the shares of Common Stock purchasable
under the within Warrant Certificate be registered in the name of the
undersigned warrantholder or his assignee as below indicated and delivered to
the address stated below.
Dated:
Signature:_____________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
Address:_______________________________
_______________________________________
_______________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Signature Guaranteed: __________________________________________________________
(Signature must be guaranteed by a bank, savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
35
<PAGE>
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED ____________________ hereby sells, assigns and transfers unto
[NAME OF TRANSFEREE] Warrant Certificate No. ___, together with all right, title
and interest therein, and does hereby irrevocably constitute and appoint________
____________________ Attorney, to transfer the within Warrant Certificate on the
books of the within-named Company, with full power of substitution.
Dated: _______________________________________
Signature: _______________________
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant Certificate.)
Address:__________________________
__________________________________
__________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Signature Guaranteed: __________________________________________________________
(Signature must be guaranteed by a bank, savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
36
<PAGE>
EXHIBIT B
[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE
EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF
SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS OR OTHER SECURITIES REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO
HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, NOVEMBER 2, 2000
Warrant No. ______
WARRANT CERTIFICATE
This Warrant Certificate certifies that ___________________________, or
registered assigns, is the registered holder of Warrants to purchase initially,
at any time from November 2, 1998 until 5:30 p.m., New York time, on November 2,
2000 ("Expiration Date"), up to ____________ shares, of fully-paid and
non-assessable common stock, $.01 par value ("Common Stock") of CECO
Environmental Corp., a New York corporation (the "Company"), at the initial
exercise price, subject to adjustment in certain events, of $3.00 per share upon
surrender of this Warrant Certificate and payment of the Exercise Price at the
principal executive office of the Company, but subject to the conditions set
forth herein. Payment of the Exercise Price shall be made by certified or
official bank check in United States dollars payable to the order of the
Company.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter expire and shall be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at the principal executive office of the Company, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Warrant Agreement, without any charge except for any tax or
other governmental charge imposed in connection with such transfer.
37
<PAGE>
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such numbered of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
This Warrant Certificate does not entitle any Warrant holder to any of
the rights of a shareholder of the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of ________________________, 199__.
ATTEST: CECO ENVIRONMENTAL CORP.
________________________________________ By:________________________[SEAL]
Secretary Name:____________________________
Title:___________________________
38
<PAGE>
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 4.1 OF THE
WARRANT AGREEMENT]
The undersigned hereby irrevocably elects to exercise the right,
represented by Warrant Certificate No. ___, to purchase ____________ shares of
Common Stock (as defined in the Warrant Agreement described below) and herewith
tenders in payment for such securities a certified or official bank check
payable in United States dollars to the order of CECO Environmental Corp., a New
York corporation (the "Company") in the amount of $____________, all in
accordance with the terms of Section 4.1 of the Warrant Agreement dated as of
November 2, 1998 between the Company and IRG Investor Relations Group Ltd. The
undersigned requests that a certificate for such securities be registered in the
name of _____________________________, whose address is ________________________
______________________and that such certificate be delivered to ________________
______________________________, whose address is _______________________________
__________________________________, and if said number of shares of Common
Stock shall not be all the shares of Common Stock purchasable hereunder, that a
new Warrant Certificate for the balance of the shares of Common Stock
purchasable under the within Warrant Certificate be registered in the name of
the undersigned warrantholder or his assignee as below indicated and delivered
to the address stated below.
Dated:_________________________________________
Signature:________________________
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant Certificate.)
Address:__________________________
__________________________________
__________________________________
(Insert Social Security or Other
Identifying Number of Holder).
Signature Guaranteed:___________________________________________________________
(Signature must be guaranteed by a bank, savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
39
<PAGE>
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED ____________________ hereby sells, assigns and transfers unto
[NAME OF TRANSFEREE] Warrant Certificate No. _____, together with all right,
title and interest therein, and does hereby irrevocably constitute and appoin
_____________________________ Attorney, to transfer the within Warrant
Certificate on the books of the within-named Company, with full power of
substitution.
Dated:_________________________________________
Signature: _______________________
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant Certificate.)
Address:__________________________
__________________________________
__________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Signature Guaranteed:___________________________________________________________
(Signature must be guaranteed by a bank, savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
40
<PAGE>
WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE
EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF
SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS OR OTHER SECURITIES REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO
HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, NOVEMBER 2, 2000
Warrant No. 1RG - 1
WARRANT CERTIFICATE
This Warrant Certificate certifies that IRG Investor Relations Group
Ltd., or registered assigns, is the registered holder of Warrants to purchase
initially, at any time from November 2, 1998, until 5:30 p.m., New York time, on
November 2, 2000 ("Expiration Date"), up to 500,000 shares, of fully-paid and
non-assessable common stock, $.01 par value ("Common Stock") of CECO
Environmental Corp., a New York corporation (the "Company"), at the initial
exercise price, subject to adjustment in certain events, of $2.00 per share upon
surrender of this Warrant Certificate and payment of the Exercise Price at the
principal executive office of the Company, but subject to the conditions set
forth herein. Payment of the Exercise Price shall be made by certified or
official bank check in United States dollars payable to the order of the
Company.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter expire and shall be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at the principal executive office of the Company, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Warrant Agreement, without any charge except for any tax or
other governmental charge imposed in connection with such transfer.
41
<PAGE>
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such numbered of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
This Warrant Certificate does not entitle any Warrant holder to any of
the rights of a shareholder of the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of November 2, 1998.
CECO ENVIRONMENTAL CORP.
By:____________________________[SEAL]
Name:________________________________
Title:_______________________________
42
<PAGE>
ELECTION TO PURCHASE PURSUANT TO SECTION 4.1 OF THE
WARRANT AGREEMENT
The undersigned hereby irrevocably elects to exercise the right,
represented by Warrant Certificate No. ____, to purchase ____________ shares of
Common Stock (as defined in the Warrant Agreement described below) and herewith
tenders in payment for such securities a certified or official bank check
payable in United States dollars to the order of CECO Environmental Corp., a New
York corporation (the "Company") in the amount of $____________, all in
accordance with the terms of Section 4.1 of the Warrant Agreement dated as of
November 2, 1998 between the Company and IRG Investor Relations Group Ltd. The
undersigned requests that a certificate for such securities be registered in the
name of __________________, whose address is ___________________________ and
that such certificate be delivered to _________________________, whose address
is ___________________________, and if said number of shares of Common Stock
shall not be all the shares of Common Stock purchasable hereunder, that a new
Warrant Certificate for the balance of the shares of Common Stock purchasable
under the within Warrant Certificate be registered in the name of the
undersigned warrantholder or his assignee as below indicated and delivered to
the address stated below.
Dated: _____________________________
Signature:_______________________________________
(Signature must conform in all respects to name of holder as specified
on the face of the Warrant Certificate.)
Address:_________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Signature Guaranteed: _________________________________________________________
(Signature must be guaranteed by a bank, savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
43
<PAGE>
ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED _________________________ hereby sells, assigns and transfers
unto _________ ________________________________ Warrant Certificate No. _______,
together with all right, title and interest therein, and does hereby irrevocably
constitute and appoint ________________________Attorney, to transfer the within
Warrant Certificate on the books of the within-named Company, with full power of
substitution.
Dated:____________________________
Signature: ___________________________________
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant
Certificate.)
Address: ___________________________
____________________________________
____________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Signature Guaranteed: _________________________________________________________
(Signature must be guaranteed by a bank, savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
44
<PAGE>
WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE
EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF
SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS OR OTHER SECURITIES REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO
HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, NOVEMBER 2, 2000
Warrant No. 1RG - 2
WARRANT CERTIFICATE
This Warrant Certificate certifies that IRG Investor Relations Group
Ltd., or registered assigns, is the registered holder of Warrants to purchase
initially, at any time from November 2, 1998, until 5:30 p.m., New York time, on
November 2, 2000 ("Expiration Date"), up to 500,000 shares, of fully-paid and
non-assessable common stock, $.01 par value ("Common Stock") of CECO
Environmental Corp., a New York corporation (the "Company"), at the initial
exercise price, subject to adjustment in certain events, of $3.00 per share upon
surrender of this Warrant Certificate and payment of the Exercise Price at the
principal executive office of the Company, but subject to the conditions set
forth herein. Payment of the Exercise Price shall be made by certified or
official bank check in United States dollars payable to the order of the
Company.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter expire and shall be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at the principal executive office of the Company, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
45
<PAGE>
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Warrant Agreement, without any charge except for any tax or
other governmental charge imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such numbered of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
This Warrant Certificate does not entitle any Warrant holder to any of
the rights of a shareholder of the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of November 2, 1998.
CECO ENVIRONMENTAL CORP.
By:______________________[SEAL]
Name:__________________________
Title:_________________________
46
<PAGE>
ELECTION TO PURCHASE PURSUANT TO SECTION 4.1 OF THE
WARRANT AGREEMENT
The undersigned hereby irrevocably elects to exercise the right,
represented by Warrant Certificate No.________, to purchase ________ shares of
Common Stock (as defined in the Warrant Agreement described below) and herewith
tenders in payment for such securities a certified or official bank check
payable in United States dollars to the order of CECO Environmental Corp., a New
York corporation (the "Company") in the amount of $____________, all in
accordance with the terms of Section 4.1 of the Warrant Agreement dated as of
November 2, 1998 between the Company and IRG Investor Relations Group Ltd. The
undersigned requests that a certificate for such securities be registered in the
name of __________________, whose address is _____________________ and that such
certificate be delivered to __________________________, whose address is
_____________________, and if said number of shares of Common Stock shall not be
all the shares of Common Stock purchasable hereunder, that a new Warrant
Certificate for the balance of the shares of Common Stock purchasable under the
within Warrant Certificate be registered in the name of the undersigned
warrantholder or his assignee as below indicated and delivered to the address
stated below.
Dated: _____________________________
Signature:_________________________________________________
(Signature must conform in all respects to name of holder as specified
on the face of the Warrant Certificate.)
Address:_________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Signature Guaranteed: _________________________________________________________
(Signature must be guaranteed by a bank, savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
47
<PAGE>
ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED __________________________ hereby sells, assigns and
transfers unto _________ ________________________________ Warrant Certificate
No. __________, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint ______________________________
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
Dated:_________________________
Signature: _______________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
Address: _______________________________
________________________________________
________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Signature Guaranteed: _________________________________________________________
(Signature must be guaranteed by a bank, savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
48
<PAGE>
EXHIBIT 5
OPINION OF COUNSEL REGARDING LEGALITY AND CONSENT OF COUNSEL
(LETTERHEAD OF SUGAR, FRIEDBERG & FELSENTHAL)
December 8, 1998
CECO Environmental Corp.
505 University Avenue
Suite 1400
Toronto, Ontario
Canada M5G 1X3
Re: CECO Environmental Corp. 1998 Consulting Agreement
Ladies and Gentlemen:
We have acted as counsel to CECO Environmental Corp. (the "Company") in
connection with the registration with the Securities and Exchange Commission on
Form S-8 of shares of the Company's common stock, $0.01 par value (the
"Shares"), which will be issuable upon exercise of warrants issued under the
above-referenced Consulting Agreement (the "Plan"). In connection with that
registration, we have reviewed the proceedings of the Board of Directors of the
Company relating to the registration and proposed issuance of the common stock,
the Articles of Incorporation of the Company and all amendments thereto, the
Bylaws of the Company and all amendments thereto, and such other documents and
matters as we have deemed necessary to the rendering of the following opinion.
Based upon that review, it is our opinion that the Shares, when issued
in conformance with the terms and conditions of the Plan, will be legally
issued, fully paid, and nonassessable.
We do not find it necessary for the purposes of this opinion to cover,
and accordingly we express no opinion as to, the application of the securities
or blue sky laws of the various states as to the issuance and sale of the
Shares.
We consent to the use of this opinion in the registration statement
filed with the Securities and Exchange Commission in connection with the
registration of the Shares and to the reference to our firm under the heading
"Interests of Named Experts and Counsel" in the registration statement.
Very truly yours,
SUGAR, FRIEDBERG & FELSENTHAL
By /s/ Leslie J. Weiss
-------------------------------
Leslie J. Weiss
50
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated January
27, 1998 included in CECO Environmental Corp.'s Form 10-KSB for the year ended
December 31, 1997.
/s/ Margolis & Company P.C.
-------------------------------------
Margolis & Company P.C.
Bala Cynwyd, PA
November 30, 1998
