EXHIBIT 10.27
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
August 25, 1999
__________ shares Warrant No.__
SATCON TECHNOLOGY CORPORATION
STOCK PURCHASE WARRANT
Registered Owner: ____________________________
This certifies that, for value received, SatCon Technology Corporation, a
Delaware corporation, the ("Company") grants the following rights to the
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Registered Owner, or assigns, of this Warrant:
1. Issue. Upon tender (in accordance with Section 6 hereof) to the
Company, the Company, within three (3) Business Days of the date thereof, shall
issue to the Registered Owner, or assigns, up to the number of shares specified
in Section 2 hereof of fully paid and nonassessable shares of Common Stock that
the Registered Owner, or assigns, is otherwise entitled to purchase.
2. Number of Shares. The total number of shares of Common Stock that the
Registered Owner, or assigns, of this Warrant is entitled to receive upon
exercise of this Warrant (the "Warrant Shares") is ________ shares, subject to
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adjustment from time to time as to the number and kind of securities for which
this Warrant is exercisable, all as set forth in Section 7 hereof. The Company
shall at all times reserve and hold available out of its authorized and unissued
shares of Common Stock or other securities, as the case may be, sufficient
shares of Common Stock to satisfy all conversion and purchase rights represented
by outstanding convertible securities, options and warrants, including this
Warrant. The Company covenants and agrees that all shares of Common Stock or
other securities, as the case may be, that may be issued upon the exercise of
this Warrant shall, upon issuance, be duly and validly issued, fully paid and
nonassessable, free from all taxes, liens and charges with respect to the
purchase and the issuance of the shares, and shall not have any legend or
restrictions on resale, expect as required by Section 3.2(b) of the Purchase
Agreement.
3. Exercise Price. The per share exercise price of this Warrant,
representing the price per share at which the shares of stock issuable upon
exercise of this Warrant may be
purchased, is eight dollars and fifty-four cents ($8.54), subject to adjustment
from time to time pursuant to the provisions of Section 7 hereof (the "Exercise
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Price").
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4. Exercise Period. This Warrant may be exercised from the Closing Date
(as defined in the Purchase Agreement) up to and including August 25, 2003 (the
"Exercise Period"). If not exercised during this period, this Warrant and all
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rights granted under this Warrant shall expire and lapse.
5. Replacement Warrants. To the extent that Warrant Shares are issued
pursuant to Section 8, the Company shall issue to the Registered Owner a
replacement warrant (a "Replacement Warrant"), subject to the terms set forth
herein, equal to the number of Warrant Shares received or the number of shares
of Common Stock issuable upon the exercise of the Warrant so redeemed, subject
to the following qualifications:
a. the exercise price shall equal $12.81;
b. the exercise period of any such Replacement Warrant shall be five
(4) years from the date if issuance; and
c. this Section 5. shall not be incorporated into any such warrant.
6. Tender; Issuance of Certificates.
a. Subject to Section 17 hereof, this Warrant may be exercised, in
whole or in part, by (i) actual delivery of (a) the Exercise Price in cash,
(b) a duly executed Warrant Exercise Form, a copy of which is attached to
this Warrant as Exhibit A, properly executed by the Registered Owner, or
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assigns, of this Warrant, and (c) by surrender of this Warrant. The
Warrant Shares so purchased shall be deemed to be issued to the Registered
Owner as of the close of business on the date on which the last of the
following shall have occurred: (i) this Warrant shall have been surrendered
and (ii) the completed Warrant Exercise Form shall have been delivered and
payment shall have been made for such shares as set forth above. The
payment and Warrant Exercise Form must be delivered to the registered
office of the Company either in person or as set for in Section 14 hereof.
b. In lieu of physical delivery of the Warrant, provided the
Company's transfer agent is participating in the Depositary Trust Company
("DTC") Fast Automated Securities Transfer ("FAST") program, upon request
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of the Registered Owner and in compliance with the provisions hereof, the
Company shall use its best efforts to cause its transfer agent to
electronically transmit the Warrant Shares to the Registered Owner by
crediting the account of the Registered Owner's Prime Broker with DTC
through its Deposit Withdrawal Agent Commission system. The time period
for delivery described herein shall apply to the electronic transmittals
described herein.
c. Certificates for the Warrant Shares so purchased, representing the
aggregate number of shares specified in the Warrant Exercise Form, and any
cash payments due under Section 16 hereof shall be delivered to the
Registered Owner within
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a reasonable time, not exceeding three (3) Business Days, after this
Warrant shall have been so exercised. The certificates so delivered shall
be in such denominations as may be requested by the Registered Owner and
shall be registered in the name of the Registered Owner or such other name
as shall be designated by such Registered Owner. If this Warrant shall have
been exercised only in part, then, unless this Warrant has expired, the
Company shall, at its expense, at the time of delivery of such
certificates, deliver to the Registered Owner a new Warrant representing
the number of shares with respect to which this Warrant shall not then have
been exercised.
7. Adjustment of Exercise Price.
a. Common Stock Dividends; Common Stock Splits; Reverse Common Stock
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Splits. If the Company, at any time while this Warrant is outstanding, (a)
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shall pay a stock dividend on its Common Stock, (b) subdivide outstanding
shares of Common Stock into a larger number of shares, (c) combine
outstanding shares of Common Stock into a smaller number of shares or (d)
issue by reclassification of shares of Common Stock any shares of capital
stock of the Company, then (i) the Exercise Price shall be multiplied by a
fraction the numerator of which shall be the number of shares of Common
Stock (excluding treasury shares, if any) outstanding before such event and
the denominator of which shall be the number of shares of Common Stock
outstanding (excluding treasury shares, if any) after such event and (ii)
the number of Warrant Shares shall be multiplied by a fraction, the
numerator of which shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding after such event and the denominator
of which shall be the number of shares of Common Stock (excluding treasury
shares, if any) outstanding before such event. Any adjustment made
pursuant to this paragraph (6)(a) shall become effective immediately after
the record date for the determination of shareholders entitled to receive
such dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, combination or re-
classification.
b. Rights; Options; Warrants or Other Securities. If the Company, at
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any time while this Warrant is outstanding, shall fix a record date for the
issuance of rights, options, warrants or other securities to all of the
holders of Common Stock entitling them to subscribe for or purchase,
convert to, exchange for or otherwise acquire shares of Common Stock for no
consideration or at a price per share less than the Exercise Price, the
Exercise Price shall be multiplied by a fraction, the denominator of which
shall be the number of shares of Common Stock (excluding treasury shares,
if any) outstanding on the date of issuance of such rights, options,
warrants or other securities plus the number of additional shares of Common
Stock offered for subscription, purchase, conversion, exchange or
acquisition and the numerator of which shall be the number of shares of
Common Stock (excluding treasury shares, if any) outstanding on the date of
issuance of such rights, options, warrants or other securities plus the
number of shares which the aggregate offering price of the total number of
shares so offered would purchase at the Exercise Price. Such adjustment
shall be made whenever such rights, options, warrants or other securities
are issued, and shall become effective immediately after the record
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date for the determination of shareholders entitled to receive such rights,
options, warrants or other securities.
c. Subscription Rights. If the Company, at any time while this
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Warrant is outstanding, shall fix a record date for the distribution to all
of the holders of Common Stock evidence of its indebtedness or assets or
rights, options, warrants or other security entitling them to subscribe for
or purchase, convert to, exchange for or otherwise acquire any security
(excluding those referred to in paragraphs 6(a) and (b) above), then in
each such case the Exercise Price at which the Warrant shall thereafter be
exercisable shall be determined by multiplying the Exercise Price in effect
immediately prior to the record date fixed for determination of
shareholders entitled to receive such distribution by a fraction, the
denominator of which shall be the Per Share Market Value of Common Stock
determined as of the record date mentioned above, and the numerator of
which shall be such Per Share Market Value of the Common Stock on such
record date less the then fair market value at such record date of the
portion of such assets or evidence of indebtedness so distributed
applicable to one outstanding share of Common Stock as determined by the
Board of Directors in good faith; provided, however, that in the event of a
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distribution exceeding ten percent (10%) of the net assets of the Company,
such fair market value shall be determined in accordance with the Appraisal
Procedure. Such adjustment shall be made whenever any such distribution is
made and shall become effective immediately after the record date mentioned
above.
d. Rounding. All calculations under this Section 7 shall be made to
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the nearest cent or the nearest l/l00th of a share, as the case may be.
e. Notice of Adjustment. Whenever the Exercise Price is adjusted
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pursuant to paragraphs 6(a), (b) or (c), the Company shall promptly deliver
to the Registered Owner a notice setting forth the Exercise Price after
such adjustment and setting forth a brief statement of the facts requiring
such adjustment.
f. Redemption Events. The following are "Redemption Events" under
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this Section 7(f): (A) any Change of Control or (B) any suspension from
listing or delisting of the Common Stock from the Nasdaq or any Subsequent
Market on which the Common Stock is listed for a period of five consecutive
days. On and after the date of any Redemption Event, the Registered Owner
shall have the option to require the Company to redeem (the "Redemption
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Right"), for a period of thirty (30) days after the Registered Owner
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receives notice of Redemption Event, in cash and subject to the terms of
payment provisions set forth in Section 8, the Registered Owner's shares of
Common Stock immediately theretofore acquirable and receivable upon the
exercise of such Registered Owner's Warrant at a price per share equal to
the product of (i) the amount by which, if any, the Average Price
immediately preceding the latest of the effective date, the date of the
closing, date of occurrence or the date of the announcement, as the case
may be, of the Redemption Event triggering such Redemption Right exceeds
the Exercise Price and (ii) the number of shares of Common Stock issuable
upon exercise of the Warrant immediately prior to such Redemption Event.
After the occurrence of (A), the Registered Owner shall have the right at
his or its option, in lieu of the Redemption Right, to exercise the Warrant
for shares of stock and other securities, cash and property receivable
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upon or deemed to be held by holders of Common Stock following such
Redemption Event; the Registered Owner shall be entitled upon such event to
receive such amount of securities, cash or property as if the Registered
Owner had exercised the Warrant of the shares of the Common Stock issuable
upon exercise of the Warrant immediately prior to such Redemption Event
(without taking into account any limitations or restrictions on the
exercise of the Warrant). In the case of a transaction specified in (A) in
which holders of the Company's Common Stock receive cash, the Registered
Owner shall have the right at his or its option, in lieu of the Redemption
Right, to exercise the Warrant for such number of shares of the surviving
company equal to the amount of cash into which the Warrant is exercisable
divided by the fair market value of the shares of the surviving company on
the effective date of the merger. In the case of (A), the Company shall not
effect any such Redemption Event unless, prior to the consummation thereof,
each Person (other than the Company) which may be required to deliver any
stock, securities, cash or property upon the exercise of the Warrant as
provided herein shall assume, by written instrument delivered and
reasonably satisfactory to, the Registered Owner, (a) the obligations of
the Company under the Warrant (and if the Company shall survive the
consummation of such transaction, such assumption shall be in addition to,
and shall not release the Company from, any continuing obligations of the
Company under this Warrant), (b) the obligations of the Company under the
Purchase Agreement, the Warrant, the Certificate of Designation, and the
Registration Rights Agreement, and (c) the obligation to deliver to the
Registered Owner such shares of stock, securities, cash or property as, in
accordance with the foregoing provisions of this Section 7(f), the
Registered Owner may be entitled to receive. Nothing in this Section 7(f)
shall be deemed to authorize the Company to enter into any transaction not
otherwise permitted by the Purchase Agreement. This provision shall
similarly apply to successive Redemption Events.
g. Notice of Certain Events. If:
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(i) the Company shall declare a dividend (or any other
distribution) on its Common Stock; or
(ii) the Company shall declare a special nonrecurring cash
dividend on or a redemption of its Common Stock; or
(iii) the Company shall authorize the granting to the holders of
the Common Stock rights or warrants to subscribe for or purchase any
shares of capital stock of any class or of any rights; or
(iv) the approval of any shareholders of the Company shall be
required in connection with any reclassification of the Common Stock
of the Company, any consolidation or merger to which the Company is a
party, any sale or transfer of all or substantially all of the assets
of the Company, or any compulsory share exchange whereby the Common
Stock is converted into other securities, cash or property; or
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(v) the Company shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of exercise of this Warrant, and shall cause to be delivered to the
Registered Owner, at least 10 Business Days prior to the applicable record or
effective date hereinafter specified, a notice (provided such notice shall not
include any material non-public information) stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such dividend,
distributions, redemption, rights or warrants are to be determined or (y) the
date on which such reclassification, consolidation, merger, sale, transfer or
share exchange is expected to become effective or close, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer or
share exchange; provided, however, that the failure to mail such notice or any
defect therein or in the mailing thereof shall not affect the validity of the
corporate action required to be specified in such notice.
h. Adjustment of Number of Shares. Upon each adjustment of the
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Exercise Price as a result of the calculations made in this Section 7, this
Warrant shall thereafter evidence the right to receive, at the adjusted
Exercise Price, that number of shares of Common Stock (calculated to the
nearest one-hundredth) obtained by dividing (i) the product of the
aggregate number of shares covered by this Warrant immediately prior to
such adjustment and the Exercise Price in effect immediately prior to such
adjustment of the Exercise Price by (ii) the Exercise Price in effect
immediately after such adjustment of the Exercise Price.
8. Call Option. If, at any time during the Exercise Period, the Per
Share Market Value equals or exceeds $12.81 for any twenty (20) consecutive
Trading Days, then so long as (i) any Registration Statement required to be
filed and be effective pursuant to the Registration Rights Agreement has been
filed and declared effective, and, if this call option is being implemented
prior to the second anniversary of the Closing Date, such Registration Statement
has been in effect and sales of all of the Registrable Securities can be made
thereunder for at least ten (10) days prior to the Call Notice Date (as defined
below), or such lesser number of days to the extent that in such 10-day period
are days contemplated by Sections 3(r) and 3(s) of the Registration Rights
Agreement and (ii) the Company has a sufficient number of authorized shares of
Common Stock reserved for issuance upon full exercise of the Warrants, the
Company shall have the right during the two month period commencing on the first
business day after such 20-day period, upon written notice to the Registered
Owner, to cause such Registered Owner to exercise this Warrant in full in
accordance with the provisions of Section 6 hereof within the period of ten (10)
business days commencing on the Registered Owner's receipt of such notice (the
"Call Notice Date").
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9. Restriction on Conversion by Either the Registered Owner or the
Company. Notwithstanding anything herein to the contrary, except as set forth
in Section 7.1 to the Certificate of Designation and Section 8 hereof, in no
event shall any Registered Owner have the right or be required to exercise this
Warrant if as a result of such conversion the aggregate
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number of shares of Common Stock beneficially owned by such Registered Owner and
its Affiliates would exceed 9.99% of the outstanding shares of the Common Stock
following such exercise. For purposes of this Section 9, beneficial ownership
shall be calculated in accordance with Section 13(d) of the Securities Exchange
Act of 1934, as amended. The provisions of this Section 9 may be waived by a
Registered Owner as to itself (and solely as to itself) upon not less than 65
days prior written notice to the Company, and the provisions of this Section 9
shall continue to apply until such 65th day (or later, if stated in the notice
of waiver).
10. Officer's Certificate. Whenever the number of shares purchasable upon
exercise shall be adjusted as required by the provisions of Section 7, the
Company shall forthwith file in the custody of its Secretary or an Assistant
Secretary at its principal office and with its stock transfer agent, if any, an
officer's certificate showing the adjusted Exercise Price, number of shares or
other securities determined as herein provided, setting forth in reasonable
detail the facts requiring such adjustment and the manner of computing such
adjustment. Each such officer's certificate shall be signed by the chairman,
president or chief financial officer of the Company and by the secretary or any
assistant secretary of the Company. Each such officer's certificate shall be
made available at all reasonable times for inspection by any Registered Owner of
the Warrants and the Company shall, forthwith after each such adjustment,
deliver a copy of such certificate to the each of the Registered Owners.
11. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to such terms in the Purchase Agreement.
As used in this Warrant, the following terms have the following meanings:
"Affiliate" means, with respect to any Person, any other Person that
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directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
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respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
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correlative to the foregoing.
"Appraisal Procedure" shall have the following meaning. The independent
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directors of the Company shall determine the fair market value. The Holders
shall have ten (10) Business Days to provide the Company with written notice of
its approval or disapproval of such determination. If the Holders do not
respond within such ten (10) Business Day period, they will be deemed to have
approved the fair market value determination of the independent directors. If
the Holders appropriately respond that they do not approve of the determination
and the independent directors and Holders collectively can not agree on an
appropriate fair market value within 30 Business Days, then the Company, on the
one hand, and the Holders, on the other hand shall each appoint an Appraiser. A
neutral Appraiser shall be appointed by the two party-appointed Appraisers. The
three Appraisers shall collectively ascertain the fair market value, which
valuation shall be binding upon all parties absent manifest error.
"Appraiser" shall mean a nationally recognized or major regional
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investment banking firm or firm of independent certified public accountants of
recognized standing.
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"Average Price" on any date means (x) the sum of the Per Share Market Value
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for the ten (10) Trading Days immediately preceding such date minus (y) the
highest and lowest Per Share Market Value during the ten (10) Trading Days
immediately preceding such date, divided by (z) eight (8), or a similar
calculation if another figure for the number of Trading Days is set forth for
clause (x) of this definition.
"Business Day" means any day except Saturday, Sunday and any day which
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shall be a legal holiday or a day on which banking institutions in the state of
New York generally are authorized or required by law or other government actions
to close.
"Change of Control" has the meaning set forth in the Purchase Agreement.
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"Closing" has the meaning set forth in Section 1.2 of the Purchase
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Agreement.
"Common Stock" means the shares of the Company's Common Stock, par value
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$0.01 per share.
"Company" means SatCon Technology Corporation, a Delaware corporation.
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"Exercise Period" has the meaning assigned to it the Section 4 hereof.
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"Exercise Price" has the meaning assigned to it in Section 3 hereof
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"Per Share Market Value" means on any particular date (i) the closing bid
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price per share of the Common Stock on such date on the National Market System
of the Nasdaq Stock Market or other registered national stock exchange on which
the Common Stock is then listed or if there is no such price on such date, then
the closing bid price on such exchange or quotation system on the date nearest
preceding such date, or (ii) if the Common Stock is not listed then on the
National Market System of the Nasdaq Stock Market or any registered national
stock exchange, the closing bid price for a share of Common Stock in the over-
the-counter market, as reported by the National Quotation Bureau Incorporated
(or similar organization or agency succeeding to its functions of reporting
prices) at the close of business on such date, or (iii) if the Common Stock is
not then publicly traded the fair market value of a share of Common Stock as
determined in accordance with the Appraisal Procedure. In addition, all
determinations of the Per Share Market Value shall be appropriately adjusted for
any stock dividends, stock splits or other similar transactions during such
period.
"Purchase Agreement" means that certain Securities Purchase Agreement,
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dated August 25, 1999, among the Company and the Purchasers.
"Purchaser" has the meaning set forth in the Purchase Agreement.
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"Redemption Event" has the meaning assigned to it in Section 6(f) hereof.
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"Redemption Right" has the meaning assigned to it in Section 6(f) hereof.
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"Registered Owner" means the person identified on the face of this Warrant
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as the registered owner hereof or such other person as shown on the records of
the Company as being the registered owner of this Warrant or their assigns.
"Registration Rights Agreement" means that certain Registration Rights
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Agreement, dated August 25, 1999, among the Company and the Purchasers.
"Trading Day(s)" means any day on which the primary market on which shares
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of Common Stock are listed is open for trading.
"Underlying Shares" has the meaning set forth in the Purchase Agreement.
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"Warrant(s)" means the warrants issuable at the Closing.
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12. Registration Rights. The Warrant Shares are subject to the
Registration Rights Agreement.
13. Reservation of Underlying Shares; Listing. The Company covenants that
it will at all times reserve and keep available out of its authorized shares of
Common Stock, free from preemptive rights, solely for the purpose of issue upon
exercise of the Warrants as herein provided, such number of shares of the Common
Stock as shall then be issuable upon the exercise of all outstanding Warrants
into Common Stock. The Company covenants that all shares of the Common Stock
issued upon exercise of the Warrant which shall be so issuable shall, when
issued, be duly and validly issued and fully paid and non-assessable. The
Company shall promptly secure the listing of the shares of Common Stock issuable
upon exercise of the Warrant upon each national securities exchange or automated
quotation system, if any, upon which shares of Common Stock are then listed
(subject to official notice of issuance upon exercise of this Warrant) and shall
maintain, so long as any other shares of Common Stock shall be so listed, such
listing of all shares of Common Stock form time to time issuable upon the
exercise of this Warrant; and the Company shall so list on each national
securities exchange or automated quotation system, as the case may be, and shall
maintain such listing of, any other shares of capital stock of the Company
issuable upon the exercise of this Warrant if and so long as any shares of the
same class shall be listed on such national securities exchange or automated
quotation system.
14. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be deemed to have been received
(a) upon hand delivery (receipt acknowledged) or delivery by telex (with correct
answer back received), telecopy or facsimile (with transmission confirmation
report) at the address or number designated below (if received by 5:00 p.m.
eastern time where such notice is to be received), or the first Business Day
following such delivery (if received after 5:00 p.m. eastern time where such
notice is to be received) or (b) on the second Business Day following the date
of mailing by express courier service, fully prepaid, addressed to such address,
or upon actual receipt of such mailing, whichever shall first occur. The
addresses for such communications are (i) if to the Company to SatCon Technology
Corporation, 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000, Attn: President and
Chief Executive Officer, fax no. (000) 000-0000, with copies to Xxxx & Xxxx LLP,
00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attn: Xxxxxxx X. Xxxx, Esq., fax no. (617)
000-0000 and (ii) if to any
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Purchaser to the address set forth on Schedule I hereto with copies to those
specified on the signature pages hereto and to Xxxx, Xxxx, Xxxxxxx, Xxxxx &
Xxxx, L.L.P., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxx: Xxxxx Xxxx,
Esq., fax no. (000) 000-0000 or such other address as may be designated in
writing hereafter, in the same manner, by such Person.
15. Compliance With Governmental Requirements. The Company covenants that
if any shares of Common Stock required to be reserved for purposes of exercise
of Warrants hereunder require registration with or approval of any governmental
authority under any Federal or state law, or any national securities exchange,
before such shares may be issued upon exercise, the Company will use its best
efforts to cause such shares to be duly registered or approved, as the case may
be.
16. Fractional Shares. Upon any exercise hereunder, the Company shall not
be required to issue stock certificates representing fractions of shares of the
Common Stock, but may if otherwise permitted make a cash payment in respect of
any final fraction of a share based on the Per Share Market Value at such time.
If the Company elects not, or is unable, to make such a cash payment, the
Registered Owner shall be entitled to receive, in lieu of the final fraction of
a share, one whole share of Common Stock.
17. Payment of Tax Upon Issue of Transfer. The issuance of certificates
for shares of the Common Stock upon exercise of the Warrants shall be made
without charge to the Registered Owners thereof for any documentary stamp or
similar taxes that may be payable in respect of the issue or delivery of such
certificate, provided that the Company shall not be required to pay any tax that
may be payable in respect of any transfer involved in the issuance and delivery
of any such certificate upon exercise in a name other than that of the
Registered Owner of such Warrant so converted 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.
18. Warrants Owned by Company Deemed Not Outstanding. In determining
whether the holders of the outstanding Warrants have concurred in any direction,
consent or waiver under this Warrant, warrants which are owned by the Company or
by any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall be disregarded and
deemed not to be outstanding for the purpose of any such determination.
Warrants so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Company the
pledgee's right so to act with respect to such warrants and that the pledgee is
not the Company or any other obligor upon the securities or any Affiliate of the
Company or any other obligor on the warrants.
19. Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction hereof.
20. No Rights as Stockholder. This Warrant shall not entitle the
Registered Owner to any rights as a stockholder of the Company, including
without limitation, the right to vote, to receive dividends and other
distributions, or to receive notice of, or to attend, meetings of
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stockholders or any other proceedings of the Company, unless and to the extent
converted into shares of Common Stock in accordance with the terms hereof.
21. Certain Actions Prohibited. The Company will not, by amendment of its
charter or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities, or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed by it hereunder, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in the
taking of all such action as may reasonably be requested by the holder of this
Warrant in order to protect the exercise privilege of the holder of this Warrant
against dilution or other impairment, consistent with the tenor and purpose of
this Warrant. Without limiting the generality of the foregoing, the Company (i)
will not increase the par value of any shares of Common Stock receivable upon
the exercise of this Warrant above the Exercise Price then in effect, and (ii)
will take all such actions as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant, subject to Section 8 hereof.
22. Shareholder Rights Plan. Notwithstanding the foregoing, in the event
that the Company shall distribute "poison pill" rights pursuant to a "poison
pill" shareholder rights plan (the "Rights"), the Company shall, in lieu of
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making any adjustment pursuant to Section 7 hereof, make proper provision so
that each Registered Owner who exercises a Warrant after the record date for
such distribution and prior to the expiration or redemption of the Rights shall
be entitled to receive upon such exercise, in addition to the shares of Common
Stock issuable upon such exercise, a number of Rights to be determined as
follows: (i) if such exercise occurs on or prior to the date for the
distribution to the holders of Rights of separate certificates evidencing such
Rights (the "Distribution Date"), the same number of Rights to which a holder of
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a number of shares of Common Stock equal to the number of shares of Common Stock
issuable upon such exercise at the time of such exercise would be entitled in
accordance with the terms and provisions of and applicable to the Rights; and
(ii) if such exercise occurs after the Distribution Date, the same number of
Rights to which a holder of the number of shares into which the Warrant to
exercised was exercisable immediately prior to the Distribution Date would have
been entitled on the Distribution Date in accordance with the terms and
provisions of and applicable to the Rights, and in each case subject to the
terms and conditions of the Rights.
23. Successors and Assigns. This Warrant shall be binding upon and inure
to the benefit of the Registered Owners and its assigns, and shall be binding
upon any entity succeeding to the Company by merger or acquisition of all or
substantially all the assets of the Company. The Company may not assign this
Warrant or any rights or obligations hereunder without the prior written consent
of the Registered Owner. The Registered Owner may assign this Warrant without
the prior written consent of the Company.
24. Transfers. The Company shall maintain a register (the "Register")
containing the name and address of the Registered Owner of this Warrant, which
Register can be relied upon by the Company as conclusive evidence of the
Registered Owner. If the Registered Owner transfers or assigns this Warrant it
shall promptly notify the Company in writing of the name and address of the
person to which such transfer or assignation was made. Upon receipt of such
notice the Company shall immediately update the Register to incorporate the new
Registered Owner.
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25. Governing Law. This Warrant shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York without
regard to the principles of conflicts of law thereof. Each party hereby
irrevocably submits to the nonexclusive jurisdiction of the state and federal
courts sitting in the City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Warrant and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer as of the date first set forth above.
SATCON TECHNOLOGY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------------
Title: Vice President, Chief Financial Officer
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EXHIBIT A
Warrant Exercise Form
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TO: [INSERT COMPANY NAME]
The undersigned hereby: (1) irrevocably subscribes for and offers to
purchase _______ shares of Common Stock of [Insert Company Name], pursuant to
Warrant No. ___ heretofore issued to ___________________ on ____________,
199__; (2) encloses either (a) a cash payment of $__________ of (b) a Warrant
representing _____ shares of Common Stock valued at the Per Share Market Price
of $ _____ on ________, 199_, for these shares at a price of $____ per share (as
adjusted pursuant to the provisions of the Warrant); and (3) requests that a
certificate for the shares be issued in the name of the undersigned and
delivered to the undersigned at the address specified below.
Date: ___________________________
Investor Name: ___________________________
Taxpayer Identification ___________________________
Number: ___________________________
By: ___________________________
Printed Name: ___________________________
Title: ___________________________
Address: ___________________________
___________________________
___________________________
Note: The above signature should correspond exactly with the name on the
face of this Warrant Certificate or with the name of assignee appearing in
assignment form below.
AND, if said number of shares shall not be all the shares purchasable under the
within Warrant, a new Warrant Certificate is to be issued in the name of said
undersigned for the balance remaining of the shares purchasable thereunder less
any fraction of a share paid in cash and delivered to the address stated above.
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