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EXHIBIT 10.55
NEITHER THIS WARRANT NOR THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS, AND NEITHER THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT,
OR, IF AN EXEMPTION FROM REGISTRATION SHALL BE AVAILABLE, THE HOLDER SHALL HAVE
DELIVERED AN OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED.
Warrant to Purchase 7,500,000 Shares of Common Stock.
WARRANT TO PURCHASE COMMON STOCK
OF
LITHIUM TECHNOLOGY CORPORATION
This is to certify that Pacific Lithium Limited (the "Holder") is
entitled to purchase, subject to the provisions of this Warrant, from Lithium
Technology Corporation (the "Company") 7,500,000 fully paid, validly issued and
nonassessable shares of common stock, $.01 par value, of the Corporation
("Common Stock") at a price of $.15 per share. The number of shares of Common
Stock to be received upon the exercise of this Warrant and the price to be paid
for each share of Common Stock may be adjusted from time to time as hereinafter
set forth. The shares of Common Stock deliverable upon such exercise, and as
adjusted from time to time, are hereinafter sometimes referred to as "Warrant
Shares" and the exercise price of a share of Common Stock in effect at any time
and as adjusted from time to time is hereinafter sometimes referred to as the
"Exercise Price".
1. VESTING; EXERCISE OF WARRANT.
(a) This Warrant is delivered in connection with the Bridge
Loan Financing Agreement between the Corporation and the Holder of even date
herewith (the "Bridge Loan Agreement") and the Notes issued under the Bridge
Loan Agreement. This Warrant shall vest and be exercisable immediately upon the
conversion of any Note issued under the Bridge Loan Agreement into Shares except
in the event of a PLL Default (as defined in the Note). This Warrant shall
terminate on the earlier of (i) the third anniversary of the date hereof (ii)
the closing of the Transaction (as defined in the Note).
(b) This Warrant may be exercised by presentation and
surrender hereof to the Corporation at its principal office with the Purchase
Form annexed hereto duly executed and accompanied by payment of the Exercise
Price for the number of Warrant Shares specified in such
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form. As soon as practicable after each such exercise of the Warrants, but no
later than seven (7) days from the date of such exercise, the Corporation shall
issue and deliver to the Holder a certificate or certificates for the Warrant
Shares issuable upon such exercise, registered in the name of the Holder. Upon
receipt by the Corporation of this Warrant at its office, in proper form for
exercise, the Holder shall be deemed to be the holder of record of the shares of
Common Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Corporation shall then be closed or that certificates
representing such shares of Common Stock shall not then be physically delivered
to the Holder.
(c) Compliance with the Securities Act.
(1) The Holder may exercise its Warrants if it is an "accredited investor"
or a "qualified institutional buyer", as defined in Regulation D and
Rule 144A under the Securities Act, respectively, provided each of the
following conditions is satisfied:
(a) The Holder establishes to the reasonable
satisfaction of the Corporation that it is an
"accredited investor" or "qualified institutional
buyer"; and
(b) The Holder represents that it is acquiring the
underlying common stock for its own account and that
it is not acquiring such underlying common stock with
a view to, or for offer or sale in connection with,
any distribution thereof (within the meaning of the
Securities Act) that would be in violation of the
securities laws of the United States or any state
thereof, but subject, nevertheless, to the
disposition of its property being at all times within
its control.
(2) In the event of a proposed exercise that does not qualify under Section
(c)(1) above, the Holder may exercise its Warrants only if:
(a) the Holder gives written notice to the Corporation of its intention
to exercise, which notice (i) shall describe the manner and circumstances of the
proposed transaction in reasonable detail and (ii) shall designate the counsel
for the Holder, which counsel shall be satisfactory to the Corporation;
(b) counsel for the Holder shall render an opinion,
in form and substance satisfactory to the
Corporation, to the effect that such proposed
exercise may be effected without registration under
the Securities Act or under applicable Blue Sky laws;
and
(c) the Holder complies with Section (c)(1)(b) above.
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(3) All stock certificates issued pursuant to the exercise of the Warrants
shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS. SUCH
SHARES MAY BE OFFERED, SOLD OR TRANSFERRED ONLY IN
COMPLIANCE WITH THE REQUIREMENTS OF SUCH ACT AND OF ANY
APPLICABLE STATE SECURITIES LAWS.
2. RESERVATION OF SHARES. The Corporation shall at all times reserve
for issuance and/or delivery upon exercise of this Warrant such number of shares
of its Common Stock as shall be required for issuance and delivery upon exercise
of the Warrants.
3. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant.
4. LOSS OF WARRANT. Upon receipt by the Corporation of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Corporation will execute and deliver a new Warrant of
like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Corporation,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at
any time enforceable by anyone.
5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Corporation, either at law or
equity, and the rights of the Holder are limited to those expressed in the
Warrant and are not enforceable against the Corporation except to the extent set
forth herein.
6. ANTI-DILUTION PROVISIONS. The Exercise Price in effect at any time
and the number and kind of securities purchasable upon the exercise of the
Warrants shall be subject to adjustment from time to time upon the happening of
certain events as follows:
(a) In case the Corporation 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
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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 immediately prior to such action. Such adjustment shall be made
each time any event listed above shall occur.
(b) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to Subsection (a) above, the number of Shares
purchasable upon exercise of this Warrant shall simultaneously be adjusted by
multiplying the number of Shares initially issuable upon exercise of this
Warrant by the Exercise Price in effect on the date hereof and dividing the
product so obtained by the Exercise Price, as adjusted.
(c) All calculations under this Section 6 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
Anything in this Section 6 to the contrary notwithstanding, the Corporation
shall be entitled, but shall not be required, to make such changes in the
Exercise Price in addition to those required by this Section 6, as it shall
determine, in its sole discretion, to be advisable in order that any dividend or
distribution in shares of Common Stock, or any subdivision, reclassification or
combination of Common Stock, hereafter made by the Corporation shall not result
in any Federal Income tax liability to the holders of the Common Stock or
securities convertible into Common Stock (including warrants).
(d) Whenever the Exercise Price is adjusted, as herein provided, the
Corporation shall promptly cause a notice setting forth the adjusted Exercise
Price and adjusted number of Shares issuable upon exercise of each Warrant to be
mailed to the Holder, at its last address appearing in the Warrant Register. The
Corporation may retain a firm of independent certified public accountants
selected by the Board of Directors (who may be the regular accountants employed
by the Corporation) to make any computation required by this Section 6, and a
certificate signed by such firm shall be conclusive evidence of the correctness
of such adjustment.
7. OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be adjusted
as required by the provisions of the foregoing Section, the Corporation shall
forthwith file in the custody of its Secretary or an Assistant Secretary at its
principal office, an officer's certificate showing the adjusted Exercise Price
determined as herein provided, setting forth in reasonable detail the facts
requiring such adjustment, including a statement of the number of additional
shares of Common Stock, if any, and such other facts as shall be necessary to
show the reason for and the manner of computing such adjustment. Each such
officer's certificate shall be made available at all reasonable times for
inspection by the Holder or any holder of a Warrant executed and delivered
pursuant to Section 1 and the Corporation shall, forthwith after each such
adjustment, mail a copy by certified mail of such certificate to the Holder or
any such holder.
8. NOTICES TO WARRANT HOLDER. So long as this Warrant shall be
outstanding, (i) if the Corporation shall pay any dividend or make any
distribution upon the Common Stock or (ii) if the Corporation shall offer to the
holders of Common Stock for subscription or purchase by them any share of any
class or any other rights or (iii) if any capital reorganization of the
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Corporation, reclassification of the capital stock of the Corporation,
consolidation or merger of the Corporation with or into another corporation,
sale, lease or transfer of all or substantially all of the property and assets
of the Corporation to another corporation, or voluntary or involuntary
dissolution, liquidation or winding up of the Corporation shall be effected,
then in any such case, the Corporation shall cause to be mailed by certified
mail to the Holder, at least ten days prior to the date specified in (x) or (y)
below, as the case may be, a notice containing a brief description of the
proposed action and stating the date on which (x) a record is to be taken for
the purpose of such dividend, distribution or rights, or (y) such
reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place and the date, if any is
to be fixed, as of which the holders of Common Stock or other securities shall
receive cash or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up.
9. RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Corporation, or in case of any consolidation or merger of
the Corporation with or into another corporation (other than the merger with the
Holder or a company affiliated with the Holder or a merger with a subsidiary in
which merger the Corporation is the continuing corporation and which does not
result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of this
Warrant) or in case of any sale, lease or conveyance to another corporation of
the property of the Corporation as an entirety (other than a sale transaction
involving the Holder or any company affiliated with the Holder), the Corporation
shall, as a condition precedent to such transaction, cause effective provisions
to be made so that the Holder shall have the right thereafter by exercising this
Warrant, at any time prior to the expiration of the Warrant, to purchase the
kind and amount of shares of stock and other securities and property receivable
upon such reclassification, capital reorganization or other change,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock which said Holder would have received if he had exercised this
Warrant immediately prior to such transaction. Any such provision shall include
provision for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments of this Section 9 and shall similarly apply to
successive reclassification, capital reorganizations and changes of shares of
Common Stock and to successive consolidations, mergers, sales or conveyances. In
the event that in connection with any such capital reorganization or
reclassification, consolidation, merger, sale or conveyance, additional shares
of Common Stock shall be issued in exchange, conversion, substitution or
payment, in whole or in part, for a security of the Corporation other than
Common Stock, any such issue shall be treated as an issue of Common Stock
covered by the provisions of Subsection (a) of Section 6 hereof.
10. ASSIGNMENT OF WARRANT. This Warrant may not be assigned by the
Holder without the expressed written consent of the Corporation. In the event a
transfer is requested not pursuant to an effective registration statement under
the Securities Act, the transferring Holder will, if reasonably requested by the
Corporation, deliver to the Corporation an opinion of counsel, satisfactory in
form and substance to the Corporation, that such transfer is being made in
accordance
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with an exemption from registration under the Securities Act; and provided
further that any request for transfer be accompanied by a written instrument of
transfer in form reasonably acceptable to the Corporation.
Dated: January 19, 2000
LITHIUM TECHNOLOGY CORPORATION
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, Chairman and
Chief Executive Officer
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[Form of Subscription]
(To be Exercised by the Holder Desiring to Exercise
Warrants Evidenced by the Within Warrant Certificate)
To: LITHIUM TECHNOLOGY CORPORATION
The undersigned hereby irrevocably elects to exercise Warrants,
evidenced by the within Warrant Certificate, for, and to purchase thereunder,
shares of Common Stock of Lithium Technology Corporation issuable upon
exercise of said Warrants and delivery of $ in cash.
The undersigned requests that certificates for such shares be issued in
the name of Lithium Link Management Corporation.
PACIFIC LITHIUM LIMITED
By:
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(Signature)
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(Please print name and address)
TAX IDENTIFICATION NUMBER:
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If said number of Warrants shall not be all of the Warrants evidenced
by the within Warrant Certificate, the undersigned requests that a new Warrant
Certificate evidencing the Warrants not so exercised be issued in the name of
the Holder and delivered to:
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(Please print address)
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(Signature)
NOTICE: The signature on this subscription form must correspond with
the name as written upon the face of the within Warrant
Certificate, or upon the assignment thereof, in every
particular, without alteration, enlargement, or any change
whatsoever and must be guaranteed by a bank, other than a
savings bank, or trust company having an office or
correspondent in Pennsylvania, or by a firm having membership
on a regional securities exchange and an office in
Pennsylvania.
