1
EXHIBIT 10.18
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, AS AMENDED. 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 THE ACT UNLESS SOLD PURSUANT TO RULE 144 PROMULGATED UNDER SAID
ACT.
BOREALIS TECHNOLOGY CORPORATION
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is being issued to ___________________ (the "Holder") in
connection with the Unit Purchase Agreement dated ___________ ___, 19__ between
the Holder and Borealis Technology Corporation, a Delaware corporation (the
"Company"). This Warrant entitles the Holder to subscribe for and purchase up to
_______ shares (the "Maximum Number of Shares") of fully paid and nonassessable
Common Stock of the Company (the "Shares") (as adjusted pursuant to Section 3
hereof) at the price of $5.00 per share (the "Exercise Price") (as adjusted
pursuant to Section 3 hereof) subject to the provisions and upon the terms and
conditions hereinafter set forth.
1. Method of Exercise; Payment; Issuance of New Warrant. This Warrant
may be exercised by the Holder hereof at any time on or prior to December 18,
2000. 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 A 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 or by check. 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.
2. 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.
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.
3. Adjustment of Exercise Price and Number of Shares. Subject to the
provisions of Section 1 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
2
will 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) Whenever the number of shares shall be adjusted as required by
the provisions of this Section 3, 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.
4. Fractional Shares. No fractional Shares will be issued in connection
with an exercise hereunder, but in lieu of such fractional Shares the Company
shall make a cash payment therefor upon the basis of the Exercise Price then in
effect.
5. Redemption Rights.
(a) In the event that either (i) the average last sale price of the
Company's Common Stock as quoted on the Nasdaq SmallCap Market (or such other
automatic quotation system, over-the-counter market or exchange upon which the
Company's Common Stock may then be traded) over a period of 20 consecutive
trading days shall be equal to or greater than $9.00 per share (as equitably
adjusted for stock splits and the like) or (ii) the Company shall receive the
prior written consent of X.X. Xxxxxx & Co., Inc. or any successor in interest
thereto (the "Sales Agent"), in its sole discretion, then the Company may, in
its sole discretion, notify the Holder in writing of its intention to redeem
this Warrant (the "Redemption Notice"). Notwithstanding anything herein to the
contrary, if the Redemption Notice is delivered pursuant to subsection (i) of
the preceding sentence, the Redemption Notice shall be void and of no force
unless sent by the Company to the Holder no later than fifteen days after the
last of the 20 trading days referred to in such subsection (i). The Redemption
Notice shall set forth (i) the date upon which the Company shall redeem this
Warrant (the "Redemption Date") which date shall be no earlier than thirty days
following the date the Company sends the Redemption Notice and (ii) the place at
which payment may be obtained.
(b) On the Redemption Date, the Holder shall surrender to the Company
this Warrant (unless earlier exercised in full) in the manner and at the place
designated in the Redemption Notice, and thereupon, $0.05 shall be payable to
the order of the Holder and this Warrant shall be canceled. From and after 5:00
p.m., Nevada time, on the day immediately preceding the Redemption Date, all
rights of the Holder hereunder (other than rights to receive payment pursuant to
this Section 5) shall cease, and this Warrant shall not thereafter be
transferred on the books of the Company or be deemed to be outstanding for any
purpose whatsoever.
(c) The Holder acknowledges that the Sales Agent is under no
obligation to grant or withhold its consent to a redemption of the Warrants
under any circumstances, regardless of the potential effect of such potential
redemption on the Company, the stockholders of the Company or the Holder. The
Holder further acknowledges that if the Company seeks to exercise its right to
redeem this Warrant at a time that is not
-2-
3
advantageous to the Holder that there can be no assurance that the Sales Agent
will withhold its consent to such exercise.
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"). 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 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 law.
(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 (THE "ACT"). SUCH SECURITIES MAY
NOT BE TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS
IN EFFECT AS TO SUCH TRANSFER OR IN THE OPINION OF COUNSEL, SUCH
TRANSFER MAY BE MADE PURSUANT TO RULE 144 OR REGISTRATION UNDER THE
ACT IS UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE
ACT."
(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 B 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 canceled. 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 it, 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.
7. 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 stock, reclassification
-3-
4
of stock, change of par value or change of stock to no par value, consideration,
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 the Shares purchasable upon the exercise hereof shall
have become deliverable, as provided herein.
8. 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, sent by facsimile or delivered personally by hand or by a
nationally recognized courier addressed to the Holder at the address last shown
on the records of the Company for the Holder. All such notices and other written
communications shall be effective on the earlier of the date of mailing,
confirmed facsimile transfer, delivery to the Holder or delivery to a nationally
recognized courier.
9. Governing Law, Headings. This Warrant is being delivered in the State
of Delaware 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 ______ __, 19__.
BOREALIS TECHNOLOGY CORPORATION
By: _____________________________________
Name: ___________________________________
Title: __________________________________
ACCEPTED AND AGREED
By: _____________________________________
Name: ___________________________________
Title: __________________________________
-4-
5
EXHIBIT A
NOTICE OF EXERCISE
TO: Borealis Technology Corporation
0000 Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attn: Chief Financial Officer
The undersigned hereby elects to purchase __________ shares of Common
Stock of Borealis Technology Corporation pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
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: ____________________________
_____________________________________
_____________________________________
The undersigned hereby represents and warrants that the aforesaid shares
of Common Stock are being acquired for the account of the undersigned for
investment and not with a view to, or, for resale in connection with the
distribution thereof, and that the undersigned has no present intention of
distributing or reselling such shares.
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Date: ___________________________________
6
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED, ______________________________ hereby sells, assigns
and transfers to _______________________________________________________ (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, to transfer the same on the books of the Company
with full power of substitution in the premises.
Dated: __________, ____
By: _____________________________________
Name: ___________________________________
Title: __________________________________
