WARRANT TO PURCHASE COMMON STOCK OF ENER1, INC.
Exhibit
4.36
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE
STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN EXEMPTION
FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS
IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
WARRANT
TO
PURCHASE COMMON STOCK
OF
ENER1,
INC.
Issue
Date:
THIS
CERTIFIES that __________ or any subsequent holder hereof (the “Holder”),
has
the right to purchase from ENER1, INC., a Florida corporation (the “Company”),
up to
__________________________ fully paid and nonassessable shares of the Company’s
common stock, par value $0.01 per share (the “Common
Stock”),
subject to adjustment as provided herein, at a price per share equal to the
Exercise Price (as defined below), at any time and from time to time beginning
on the date on which this Warrant was originally issued (the “Issue
Date”)
and
ending at 5:00 p.m., eastern time, on the fifth (5th)
anniversary of the Issue Date (the “Expiration
Date”);
provided,
however,
that if
the Expiration Date occurs on a date that is not a Business Day, the Expiration
Date shall be deemed to occur on the on the Business Day immediately following
such date. This Warrant is issued pursuant to the terms of an Amendment
Agreement, dated as of_________, 2007 (the “Amendment
Agreement”).
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Amendment Agreement.
1. Exercise.
(a)
Right
to Exercise; Exercise Price.
The
Holder
shall have the right to exercise this Warrant at any time and from time to
time
during the period beginning on the Issue Date and ending on the Expiration
Date
as to all or any part of the shares of Common Stock covered hereby (the
“Warrant
Shares”).
The
“Exercise
Price”
for
each Warrant Share purchased by the Holder upon the exercise of this Warrant
shall be equal to forty cents ($0.40), subject to adjustment for the events
specified in Section
6
below.
(b)
Exercise
Notice.
In
order to exercise this Warrant, the Holder shall send to the Company by
facsimile transmission, at any time prior to 6:00 p.m., eastern time, on
the
Business Day on which the Holder wishes to effect such exercise (the
“Exercise
Date”),
(i) a
notice of exercise in substantially the form attached hereto as Exhibit
A
(the
“Exercise
Notice”),
(ii)
a copy of the original Warrant, and (iii) the Exercise Price by wire transfer
of
immediately available funds. The
Exercise Notice shall state the name or names in which the shares of Common
Stock that are issuable on such exercise shall be issued. In
the
case of a dispute between the Company and the Holder as to the calculation
of
the Exercise Price or the number of Warrant Shares issuable hereunder
(including, without limitation, the calculation of any adjustment pursuant
to
Section
6
below),
the Company shall issue to the Holder the number of Warrant Shares that are
not
disputed within the time periods specified in Section
2
below
and shall submit the disputed calculations to a certified public accounting
firm
of national reputation (other than the Company’s regularly retained accountants)
within two (2) Business Days following the date on which the Holder’s Exercise
Notice is delivered to the Company. The Company shall cause such accountant
to
calculate the Exercise Price and/or the number of Warrant Shares issuable
hereunder and to notify the Company and the Holder of the results in writing
no
later than three (3) Business Days following the day on which such accountant
received the disputed calculations (the “Dispute
Procedure”).
Such
accountant’s calculation shall be deemed conclusive absent manifest error. The
fees of any such accountant shall be borne by the party whose calculations
were
most at variance with those of such accountant.
(c)
Holder
of Record.
The
Holder shall, for all purposes, be deemed to have become the holder of record
of
the Warrant Shares specified in an Exercise Notice on the Exercise Date
specified therein, irrespective of the date of delivery of such Warrant Shares.
Except as specifically provided herein, nothing in this Warrant shall be
construed as conferring upon the Holder hereof any rights as a shareholder
of
the Company prior to the Exercise Date.
(d)
Cancellation
of Warrant.
This
Warrant shall be canceled upon its exercise in full and, if this Warrant
is
exercised in part, the Company shall, at the time that it delivers Warrant
Shares to the Holder pursuant to such exercise as provided herein, issue
a new
warrant, and deliver to the Holder a certificate representing such new warrant,
with terms identical in all respects to this Warrant (except that such new
warrant shall be exercisable into the number of shares of Common Stock with
respect to which this Warrant shall remain unexercised); provided,
however,
that
the Holder shall be entitled to exercise all or any portion of such new warrant
at any time following the time at which this Warrant is exercised, regardless
of
whether the Company has actually issued such new warrant or delivered to
the
Holder a certificate therefor.
2
2. Delivery
of Warrant Shares Upon Exercise.
Upon
receipt of a fax copy of an Exercise Notice pursuant to Section
1
above,
the Company shall, (A) no later than the close of business on the later to
occur
of (i) the third (3rd) Business Day following the Exercise Date specified
in
such Exercise Notice and (ii) such later date on which the Company shall
have
received payment of the Exercise Price, and (B) with respect to Warrant Shares
that are the subject of a Dispute Procedure, the close of business on the
third
(3rd) Business Day following the determination made pursuant to Section
1(b)
(each of
the dates specified in (A) or (B) being referred to as a “Delivery
Date”),
issue
and deliver or caused to be delivered to the Holder the number of Warrant
Shares
as shall be determined as provided herein. The Company shall effect delivery
of
Warrant Shares to the Holder, as long as the Company’s designated transfer agent
(the “Transfer
Agent”)
participates in the Depository Trust Company (“DTC”)
Fast
Automated Securities Transfer program (“FAST”)
and no
restrictive legend is required pursuant to the terms of this Warrant or the
Amendment Agreement, by crediting the account of the Holder or its nominee
at
DTC (as specified in the applicable Exercise Notice) with the number of Warrant
Shares required to be delivered, no later than the close of business on such
Delivery Date. In the event that the Transfer Agent is not a participant
in FAST
or if the Holder so specifies in a Exercise Notice or otherwise in writing
on or
before the Exercise Date, the Company shall effect delivery of Warrant Shares
by
delivering to the Holder or its nominee physical certificates representing
such
Warrant Shares, no later than the close of business on such Delivery Date.
Warrant Shares delivered to the Holder shall not contain any restrictive
legend
unless such legend is required pursuant to the terms of the Amendment
Agreement.
(a) In
the
event that the Company fails for any reason to deliver to the Holder the
number
of Warrant Shares specified in the applicable Exercise Notice on or before
the
Delivery Date therefor (an “Exercise
Default”),
the
Company shall pay to the Holder payments (“Exercise
Default Payments”)
in the
amount of (i) (N/365) multiplied
by
(ii)
the
aggregate Exercise Price of the Warrant Shares which are the subject of such
Exercise
Default
multiplied
by
(iii)
the lower of fifteen percent (15%) per annum and the maximum rate permitted
by
applicable law (the “Default
Interest Rate”),
where
“N” equals the number of days elapsed between the original Delivery Date of such
Warrant Shares and the date on which all of such Warrant Shares are issued
and
delivered to the Holder. Cash amounts payable hereunder shall be paid on
or
before the fifth (5th) Business Day of each calendar month following the
calendar month in which such amount has accrued.
(b) In
the
event of an Exercise Default, the Holder may, upon written notice to the
Company
(an “Exercise
Default Notice”),
regain on the date of such notice the rights of the Holder under the exercised
portion of this Warrant that is the subject of such Exercise
Default. In
the
event of such Exercise Default and delivery of an Exercise Default Notice,
the
Holder shall retain all of the Holder’s rights and remedies with respect to the
Company’s failure to deliver such Warrant Shares (including without limitation
the right to receive the cash payments specified in Section
3(a)
above).
(c)
The
Holder’s rights and remedies hereunder are cumulative, and no right or remedy is
exclusive of any other. In addition to the amounts specified herein, the
Holder
shall have the right to pursue all other remedies available to it at law
or in
equity (including, without limitation, a decree of specific performance and/or
injunctive relief). Nothing herein shall limit the Holder’s right to pursue
actual damages for the Company’s failure to issue and deliver Warrant Shares on
the applicable Delivery Date (including, without limitation, damages relating
to
any purchase of Common Stock by the Holder to make delivery on a sale effected
in anticipation of receiving Warrant Shares upon exercise, such damages to
be in
an amount equal to (A) the aggregate amount paid by the Holder for the Common
Stock so purchased minus
(B) the
aggregate amount of net proceeds, if any, received by the Holder from the
sale
of the Warrant Shares issued by the Company pursuant to such
exercise).
3
4. Exercise
Limitations.
In
no
event shall a Holder be permitted to exercise
this Warrant, or part hereof, if, upon such exercise, the number of shares
of
Common Stock beneficially owned by the Holder (other than shares which would
otherwise be deemed beneficially owned except for being subject to a limitation
on conversion or exercise analogous to the limitation contained in this
Section
4),
would
exceed 4.99% of the number of shares of Common Stock then issued and
outstanding. As used herein, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and the rules thereunder. To the extent that the limitation contained
in this Section
4
applies,
the submission of an Exercise Notice by the Holder shall be deemed to be
the
Holder’s representation that this Warrant is exercisable pursuant to the terms
hereof and the Company shall be entitled to rely on such representation without
making any further inquiry as to whether this Section
4
applies.
Nothing contained herein shall be deemed to restrict the right of a Holder
to
exercise this Warrant, or part thereof, at such time as such exercise will
not
violate the provisions of this Section
4.
This
Section
4
may not
be amended unless such amendment is approved by the holders of a majority
of the
Common Stock then outstanding; provided,
however,
that
the
limitations contained in this Section
4
shall
cease to apply upon sixty (60) days’ prior written notice from the Holder to the
Company.
5.
[Intentionally
Omitted]
6. Anti-Dilution
Adjustments; Distributions; Other Events.
The
Exercise Price and the number of Warrant Shares issuable hereunder shall
be
subject to adjustment from time to time as provided in this Section
6.
In the
event that any adjustment of the Exercise Price required herein results in
a
fraction of a cent, the Exercise Price shall be rounded up or down to the
nearest one hundredth of a cent.
(a) Subdivision
or Combination of Common Stock.
If the
Company, at any time after the Issue Date, subdivides (by any stock split,
stock
dividend, recapitalization, reorganization, reclassification or otherwise)
the
outstanding shares of Common Stock into a greater number of shares, then
effective upon the close of business on the record date for effecting such
subdivision, the Exercise Price in effect immediately prior to such subdivision
will be proportionately reduced. If the Company, at any time after the Issue
Date, combines (by reverse stock split, recapitalization, reorganization,
reclassification or otherwise) the outstanding shares of Common Stock into
a
smaller number of shares, then, effective upon the close of business on the
record date for effecting such combination, the Exercise Price in effect
immediately prior to such combination will be proportionally
increased.
4
(b)
Distributions.
If, at
any time after the Issue Date, the Company declares or makes any distribution
of
cash or any other assets (or rights to acquire such assets) to holders of
Common
Stock, as a partial liquidating dividend or otherwise, including without
limitation any dividend or distribution to the Company’s shareholders in shares
(or rights to acquire shares) of capital stock of a subsidiary) (a “Distribution”),
the
Company shall deliver written notice of such Distribution (a “Distribution
Notice”)
to the
Holder at least thirty (30) days prior to the earlier to occur of (i) the
record
date for determining shareholders entitled to such Distribution (the
“Record
Date”)
and
(ii) the date on which such Distribution is made (the “Distribution
Date”)
(the
earlier of such dates being referred to as the “Determination
Date”).
In
the Distribution Notice to a Holder, the Company shall indicate whether the
Company has elected (A) to deliver to such Holder, upon any exercise of this
Warrant after the Determination Date, the same amount and type of assets
being
distributed in such Distribution as though the Holder were, on the Determination
Date, a holder of a number of shares of Common Stock into which this Warrant
is
exercisable as of such Determination Date (such number of shares to be
determined at the Exercise Price then in effect and without giving effect
to any
limitations on such exercise) or (B) upon any exercise of this Warrant on
or
after the Determination Date, to reduce the Exercise Price applicable to
such
exercise by reducing the Exercise Price in effect on the Business Day
immediately preceding the Record Date by an amount equal to the fair market
value of the assets to be distributed divided by the number of shares of
Common
Stock as to which such Distribution is to be made, such fair market value
to be
reasonably determined in good faith by the Company’s Board of Directors. If the
Company does not notify the Holders of its election pursuant to the preceding
sentence on or prior to the Determination Date, the Company shall be deemed
to
have elected clause (A) of the preceding sentence.
(c)
Adjustments;
Additional Shares, Securities or Assets.
In the
event that at any time, as a result of an adjustment made pursuant to this
Section
6,
the
Holder of this Warrant shall, upon exercise of this Warrant, become entitled
to
receive securities or assets (other than Common Stock) then, wherever
appropriate, all references herein to shares of Common Stock shall be deemed
to
refer to and include such shares and/or other securities or assets; and
thereafter the number of such shares and/or other securities or assets shall
be
subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this Section
6.
Any
adjustment made pursuant to Section
6(a)
that
results in a decrease or an increase in the Exercise Price shall also effect
a
proportional increase or decrease, as the case may be, in the number of shares
of Common Stock into which this Warrant is exercisable.
No
fractional shares or scrip representing fractional shares shall be issuable
upon
the exercise of this Warrant, but on exercise of this Warrant, the Holder
hereof
may purchase only a whole number of shares of Common Stock. If, on exercise
of
this Warrant, the Holder hereof would be entitled to a fractional share of
Common Stock or a right to acquire a fractional share of Common Stock, the
Company shall, in lieu of issuing any such fractional share, pay to the Holder
an amount in cash equal to the product resulting from multiplying such fraction
by the Market Price as of the Exercise Date.
5
The
Holder may sell, transfer, assign, pledge or otherwise dispose of this Warrant,
in whole or in part, as long as such sale or other disposition is made pursuant
to an effective registration statement or an exemption from the registration
requirements of the Securities Act. Upon such transfer or other disposition
(other than a pledge), the Holder shall deliver this Warrant to the Company
together with a written notice to the Company, substantially in the form
of the
Transfer Notice attached hereto as Exhibit
B
(the
“Transfer
Notice”),
indicating the person or persons to whom this Warrant shall be transferred
and,
if less than all of this Warrant is transferred, the number of Warrant Shares
to
be covered by the part of this Warrant to be transferred to each such person.
Within three (3) Business Days of receiving a Transfer Notice and the original
of this Warrant, the Company shall deliver to the each transferee designated
by
the Holder a Warrant or Warrants of like tenor and terms for the appropriate
number of Warrant Shares and, if less than all this Warrant is transferred,
shall deliver to the Holder a Warrant for the remaining number of Warrant
Shares.
This
Warrant shall be for the sole and exclusive benefit of the Holder of this
Warrant and nothing in this Warrant shall be construed to confer upon any
person
other than the Holder of this Warrant any legal or equitable right, remedy
or
claim hereunder.
Upon
receipt by the Company of evidence of the loss, theft, destruction or mutilation
of this Warrant, and (in the case of loss, theft or destruction) of indemnity
reasonably satisfactory to the Company, and upon surrender of this Warrant,
if
mutilated, the Company shall execute and deliver a new Warrant of like tenor
and
date.
11. Notice
or Demands.
Any
notice, demand or request required or permitted to be given by the Company
or
the Holder pursuant to the terms of this Warrant shall be in writing and
shall
be deemed delivered (i) when delivered personally or by verifiable facsimile
transmission, unless such delivery is made on a day that is not a Business
Day,
in which case such delivery will be deemed to be made on the next succeeding
Business Day, (ii) on the next Business Day after timely delivery to an
overnight courier and (iii) on the Business Day actually received if deposited
in the U.S. mail (certified or registered mail, return receipt requested,
postage prepaid), addressed as follows:
If
to
the Company:
Ener1,
Inc.
000
Xxxx
Xxxxxxx Xxxxx Xxxx
Xxxxx
000
Xxxx
Xxxxxxxxxx, XX 00000
Attn:
Chief
Financial Officer
Tel: 000
000-0000
Fax: 000
000-0000
6
with
a copy (which
shall not constitute notice) to:
Xxxxxx
Song LLP
000
Xxxxx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
and
if to
a Holder, to such address for such party as shall appear on the records of
the
Company. Any
party
may change its address for notice by sending notice in accordance with this
Section
11.
12. Applicable
Law.
This
Warrant is issued under and shall for all purposes be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within the State of New York.
Each
party hereby irrevocably submits to the exclusive jurisdiction of the state
and
federal courts sitting in the City and County of New York for the adjudication
of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby, 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
brought in an inconvenient forum or that the venue of 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 in effect
for
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.
13. Amendments.
No
amendment, modification or other change to, or waiver of any provision of,
this
Warrant may be made unless such amendment, modification or change is set
forth
in writing and is signed by the Company and the Holder.
14. Entire
Agreement.
This
Warrant constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof. There are no restrictions, promises, warranties
or
undertakings, other than those set forth or referred to herein and therein.
This
Warrant supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof.
7
15. Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
[Signature
Page to Follow]
8
| ENER1, INC. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
9
EXHIBIT
A to WARRANT
EXERCISE
NOTICE
The
undersigned Holder hereby irrevocably exercises the right to
purchase __________
shares of Common Stock (“Warrant
Shares”)
of
Ener1, Inc. (the “Company”) evidenced
by the attached Warrant (the “Warrant”).
The
Holder shall pay the sum of $________________ to the Company in accordance
with
the terms of the Warrant.
Date:
______________________
___________________________________
Name
of
Registered Holder
By:
_______________________________
Name:
Title:
10
EXHIBIT
B to WARRANT
TRANSFER
NOTICE
FOR
VALUE
RECEIVED, the undersigned Holder of the attached Warrant hereby sells, assigns
and transfers unto the person or persons named below the right to
purchase ___________ shares
of
the Common Stock of _____________________ evidenced by the attached
Warrant.
Date:
______________________
___________________________________
Name
of
Registered Holder
By:
_______________________________
Name:
Title:
Transferee
Name and Address:
___________________________________
___________________________________
___________________________________
11