exv10w9






Exhibit 10.9



THIS WARRANT AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED PURSUANT TO THE EXERCISE OF
THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS.




ABTECH INDUSTRIES, INC.




WARRANT TO PURCHASE COMMON STOCK



	 	 	 
	Warrant No.: ______
	 	Number of Shares:                      






Date of Issuance: _____________ ___, 20___




 






     THIS CERTIFIES THAT, for good and valuable consideration, the receipt of which is hereby
acknowledged, ____________________, or its nominee (the “Holder”), is entitled to subscribe for and
purchase up to _______________ shares (as adjusted pursuant to Section 4 hereof) of the fully paid
and nonassessable $.01 par value Common Stock (the “Shares”) of ABTECH INDUSTRIES, INC., a Delaware
corporation (the “Company”).



     1. Exercise Price. The exercise price per Share (the “Exercise Price”) shall be an
amount equal to __________ Dollars ($_______) per share (subject to adjustment pursuant to Section
4 hereof).



     2. Method of Exercise; Payment; Issues of New Warrant. This Warrant may be exercised
by the Holder hereof at any time on or prior to ________________. Exercise shall be made, in whole
or in part, by the surrender of this Warrant (with the notice of exercise form attached hereto as
Exhibit 1 duly executed) at the principal office of the Company and by the payment to the
Company of an amount equal to the Exercise Price multiplied by the number of Shares being
purchased, which amount may be paid in cash, by check or wire transfer of immediately available
funds. In the event of any exercise of the rights represented by this Warrant, certificates for
the Shares so purchased shall be delivered to the Holder hereof within a reasonable time and,
unless this Warrant has been fully exercised or expired, a new Warrant representing that portion of
the Shares, if any, with respect to which this Warrant shall not then have been exercised, shall
also be issued to the Holder within such reasonable time.



     3. Stock Fully Paid; Reservation of Shares. All of the Shares issuable upon the
exercise of the rights represented by this Warrant will, upon issuance and receipt of the Exercise
Price therefor, be fully paid and nonassessable, and free from all taxes, liens and charges with



 









 




respect to the issue thereof. During the period within which the rights represented by this
Warrant may be exercised, the Company shall at all times have authorized and reserved for issuance
sufficient shares of its Common Stock to provide for the exercise of the rights represented by this
Warrant.




     4. Adjustment of Exercise Price and Number of Shares. Subject to the provisions of
Section 2 hereof, the number and kind of securities purchasable upon the exercise of this Warrant
and the Exercise Price therefor shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:



          A. In the event the Company shall at any time subdivide the outstanding shares of Common
Stock, or shall issue a stock dividend on its outstanding Common Stock, the number of Shares
issuable upon exercise of this Warrant immediately prior to such subdivision or to the issuance of
such stock dividend shall be proportionately increased, and the Exercise Price shall be
proportionately decreased, and in the event the Company shall at any time combine the outstanding
shares of Common Stock, the number of Shares issuable upon exercise of this Warrant immediately
prior to such combination shall be proportionately decreased, and the Exercise Price shall be
proportionately increased, effective at the close of business on the date of such subdivision,
stock dividend or combination, as the case may be.




          B. If the Company is recapitalized through the subdivision or combination of its outstanding
shares of Common Stock into a larger or smaller number of shares, the number of shares of Common
Stock for which this Warrant may be exercised shall be increased or reduced in the same proportion
as the increase or decrease in the outstanding shares of Common Stock and the then applicable
Exercise Price shall be adjusted by multiplying such number of shares of Common Stock purchasable
upon exercise hereof immediately prior to such subdivision or combination and the denominator of
which shall be the number of shares of Common Stock purchasable immediately following such
subdivision or combination.




          C. Subject to Section 2 hereof, in the event of any reorganization or reclassification of the
outstanding Shares (other than a change in par value, or from no par value to par value, or par
value to no par value, or as a result of a subdivision or combination) or in the event of any
consolidation or merger of the Company with or into another entity in which more than 50% of the
voting power of the Company is disposed of, at any time prior to the expiration of this Warrant,
the Holder shall have the right, but not the obligation, to exercise this Warrant. Upon such
exercise, the Holder shall have the right to receive the same kind and number of Shares and other
securities, cash or other property as would have been distributed to the Holder upon such
reorganization, reclassification, consolidation or merger had the Holder been the holder of record
of such date for determining those entitled to receive any such distribution. The Holder shall pay
upon such exercise the Exercise Price that otherwise would have been payable pursuant to the terms
of this Warrant. If any such reorganization, reclassification, consolidation or merger results in
a cash distribution in excess of the Exercise Price provided by this Warrant, the Holder may, at
the Holder’s option, exercise this Warrant without making payment of the Exercise Price, and in
such case the Company shall, upon distribution to the Holder, consider the Exercise Price to have
been paid in full, and in making settlement to the Holder, shall deduct an amount equal to the
Exercise Price from the amount payable to the Holder.







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          D. If the Company shall, at any time prior to the expiration of this Warrant, dissolve,
liquidate or wind up its affairs, the Holder shall have the right, but not the obligation, to
exercise this Warrant. Upon such exercise, prior to such dissolution, liquidation or winding up,
the Holder shall have the right to receive, in lieu of the shares of the Company that the Holder
otherwise would have been entitled to receive, the same kind and amount of assets as would have
been issued, distributed or paid to the Holder upon any such dissolution, liquidation or winding up
with respect to the Shares had the Holder been the holder of record of such date for determining
those entitled to receive any such distribution. If any such dissolution, liquidation or winding
up results in any cash distribution in excess of the Exercise Price provided for by this Warrant,
the Holder may, at the Holder’s option, exercise this Warrant without making payment of the
Exercise Price and, in such case, the Company shall, upon distribution to the Holder, consider the
Exercise Price to have been paid in full, and in making settlement to the Holder, shall deduct an
amount equal to the Exercise Price from the amount payable to the Holder.




          E. The Company may retain a firm of independent public accountants of recognized standing (who
may be any such firm regularly employed by the Company) to make any computation required under this
Section 4, and a certificate signed by such firm shall be conclusive evidence of the correctness of
any computation made under this Section 4.




          F. Whenever the number of shares shall be adjusted as required by the provisions of this
Section 4, the Company forthwith shall file in the custody of its secretary or an assistant
secretary, at its principal office, an Officer’s Certificate showing the adjusted number of shares
and setting forth in reasonable detail the circumstances requiring the adjustment. Each such
Officer’s Certificate shall be made available at all reasonable times during reasonable hours for
inspection by the Holder.




     5. Fractional Shares. No fractional Shares will be issued in connection with any
exercise hereunder, but in lieu of such fractional Shares the Company shall to the extent permitted
by law make a cash payment therefor upon the basis of the Exercise Price then in effect.



     6. Transfer, Exchange, Assignment or loss of Warrant.



          A. This Warrant may not be assigned or transferred except as provided in this Section 6 and in
accordance with and subject to the provisions of the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder (said Act and such rules and regulations being
hereinafter collectively referred to as the “Act”) and any applicable state securities laws, rules
and regulations. Any purported transfer or assignment made other than in accordance with this
Section 6 shall be null and void and of no force and effect.




          B. Prior to any transfer of this Warrant, other than in an offering registered under the Act,
the Holder shall notify the Company of its intention to effect such transfer, indicating the
circumstances of the proposed transfer and upon request furnish the Company with an opinion of its
counsel, in form and substance reasonably satisfactory to counsel for the Company, to the effect
that the proposed transfer may be made without registration under the Act or qualification under
any applicable state securities laws. The Company will promptly notify the Holder if the opinion
of counsel furnished to the Company is reasonably satisfactory to






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counsel for the Company. Unless the Company notifies the Holder within ten (10) days after
its receipt of such opinion that such opinion is not reasonably satisfactory to counsel for the
Company, the Holder may proceed to effect the transfer.




          C. Each certificate for Shares or for any other security issued or issuable upon exercise of
this Warrant shall contain a legend substantially to the following effect:





“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (“ACT”) OR APPLICABLE STATE
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE TRANSFERRED UNLESS A
REGISTRATION STATEMENT UNDER THE ACT OR SUCH LAWS IN EFFECT AS TO
SUCH TRANSFER OR IN THE OPINION OF COUNSEL, SUCH TRANSFER MAY BE
MADE PURSUANT TO AN APPLICABLE EXEMPTION THEREFROM.”



          D. Any assignment permitted hereunder shall be made by surrender of this Warrant to the
Company at its principal office with the Assignment Form attached hereto as Exhibit 2 duly
executed. In such event the Company shall, without charge for any issuance or transfer tax or
other cost incurred by the Company with respect to such transfer, execute and deliver a new Warrant
in the name of the assignee named in such instrument of assignment and this Warrant shall promptly
be cancelled. This Warrant may be divided or combined with other warrants which carry the same
rights upon presentation thereof at the principal office of the Company together with a written
notice signed by the Holder thereof, specifying the names and denominations in which new warrants
are to be issued.




          E. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction
or mutilation of this Warrant and of indemnity satisfactory to the Company, and upon surrender and
cancellation of this Warrant, if mutilated, the Company will execute and deliver a new Warrant of
like tenor and date and any such lost, stolen, or destroyed Warrant shall thereupon become void.
Any such new Warrant executed and delivered shall constitute an additional contractual obligation
on the part of the Company, whether or not the Warrant so lost, stolen, destroyed or mutilated
shall be at any time enforceable by anyone.




     7. Representations of the Company. The Company represents that all corporate actions
on the part of the Company, its officers, directors and shareholders necessary for the sale and
issuance of the Shares pursuant hereto and the performance of the Company’s obligations hereunder
were taken prior to and are effective as of the effective date of this Warrant.



     8. Rights of Shareholders. No holder of this Warrant shall be entitled, as a Warrant
holder, to vote or receive dividends or be deemed the holder of Common Stock or any other
securities of the Company which may at any time be issuable on the exercise hereof for any purpose,
nor shall anything contained herein be construed to confer upon the holder of this Warrant, as
such, any of the rights of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action (whether upon any recapitalization, issuance of



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stock, reclassification of stock, change of par value or change of stock to no par value,
consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been exercised and
payments made thereof and the Shares purchasable upon the exercise hereof shall have become
deliverable, as provided herein.




     9. Notices. Etc. All notices and other communications from the Company to the Holder
shall be mailed by first class registered or certified mail, postage prepaid, at such address as
may have been furnished to the Company in writing by the Holder.



     10. Governing Law, Headings. This Warrant is being delivered in the State of Arizona
and shall be construed and enforced in accordance with and governed by the laws of such State. The
headings in this Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof.



     Issued this ______ day of _____________, 20__.



	 	 	 	 	 
	 	
ABTECH INDUSTRIES, INC.

 	 
	 	By:  	 	 
	 	 	Glenn R. Rink, President and C.E.O. 	 








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EXHIBIT 1




NOTICE OF EXERCISE



	 	 	 

	TO:

	 	ABTECH INDUSTRIES, INC.
	 

	 	Attn: President






     1. The undersigned hereby elects to purchase _______________ shares of Common Stock of ABTECH INDUSTRIES, INC.
pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price
of such shares in full, together with all applicable transfer taxes, if any.



     2. Please issue a certificate or certificates representing said shares of Common Stock in the
name of the undersigned or in such other name as is specified below:



	 	 	 	 	 	 	 

	 

	 	 	 	 

(Name)
	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

(Address)
	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

(Signature)
	 	 
	 
	 	 	 	 	 	 
	 

(Date)

	 	 	 	 	 	 






 









 






EXHIBIT 2




ASSIGNMENT FORM



     FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                    
                                                  (Name and
Address) the right to purchase Shares represented by this Warrant to the extent of                     shares of Common
Stock and does hereby irrevocably constitute and appoint                                                                      
            attorney-in-fact, to transfer the same on
the books of the Company with full power of substitution in the premises.



	 	 	 	 	 	 	 

	 

	 	 	 	 

(Signature)
	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

(Title)
	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

(Date)