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EXHIBIT 3
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR PURSUANT TO THE SECURITIES OR
"BLUE SKY" LAWS OF ANY STATE AND MAY NOT BE OFFERED, ASSIGNED, TRANSFERRED,
SOLD, OR OTHERWISE DISPOSED OF, EXCEPT IN ACCORDANCE WITH APPLICABLE "BLUE SKY"
LAWS AND PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES
WHICH IS EFFECTIVE UNDER SUCH ACT OR AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT.
No. ____ December 9, 1999
COMMON STOCK PURCHASE WARRANT
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THIS CERTIFIES THAT ______________________ (the "Holder"), for value
received and subject to the terms and conditions set forth in this Warrant (the
"Warrant"), is entitled to purchase at any time prior to the Expiration Date (as
defined herein) from Metretek Technologies, Inc., a Delaware corporation (the
"Company"), any or all of _____________ duly authorized, validly issued, fully
paid and nonassessable shares of common stock, par value $.01 per share (the
"Common Stock"), at a purchase price of $6.7425 per share (the "Initial Exercise
Price").
This Warrant is originally issued in connection with the execution and
delivery of the Securities Purchase Agreement dated as of December 9, 1999 (the
"Securities Purchase Agreement") by and among the Company, the Holder and the
other purchasers named therein. This Warrant evidences the right to purchase an
aggregate of _______________ shares of Common Stock, subject to adjustment as
provided herein. Certain capitalized terms used in this Warrant are defined in
Section 12 hereof.
1. EXERCISE OF WARRANT.
1.1 MANNER OF EXERCISE; PAYMENT.
1.1.1 This Warrant may be exercised by the Holder, in whole or in
part, during normal business hours on any Business Day after March 9, 2000 and
on or prior to the Expiration Date, by surrender of this Warrant to the Company
at its principal office identified in Section 11.2(a) hereof, accompanied by a
subscription in substantially the form attached to this Warrant duly executed by
the Holder and accompanied by payment as follows, at the option of the Holder:
either (i) by certified or bank cashier's check made payable to the
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Company or by wire transfer of immediately available funds to an account
designated by the Company in an amount equal to, or (ii) shares of Common Stock
with an aggregate Current Market Price equal to, the product of (a) the number
of shares of Common Stock for which this Warrant is being exercised multiplied
by (b) the Exercise Price (such product the "Total Exercise Price"). The Holder
shall thereupon be entitled to receive the number of duly authorized, validly
issued, fully paid and nonassessable shares of Common Stock (or Other
Securities) determined as provided in Sections 2 through 4 hereof.
1.1.2 As an alternative to paying the Total Exercise Price in cash or
Common Stock, the Holder may elect instead to receive upon exercise of this
Warrant, upon surrender of this Warrant to the Company at its principal office
identified in Section 11.2(a) hereof, accompanied by a subscription in
substantially the form attached to this Warrant duly executed by the Holder, a
number of duly authorized, validly issued, fully paid and nonassessable shares
of Common Stock (or Other Securities) equal to (a) the difference between (x)
the product of (aa) the number of shares of Common Stock (or Other Securities)
which the Holder would as of the date of exercise be entitled to receive upon
exercise of this Warrant, multiplied by (bb) the Current Market Price as of the
date of exercise of each such share of Common Stock (or such Other Securities)
so receivable upon such exercise, minus (y) the product of (aa) the number of
shares determined in (x)(aa) above, multiplied by (bb) the Exercise Price, such
difference divided by (b) the Current Market Price of the Common Stock (or Other
Securities) as of the date of exercise.
1.2 EXPIRATION DATE. This Warrant shall expire at 5:00 p.m. Eastern
Daylight Time on December 9, 2004 (the "Expiration Date").
1.3 EFFECTIVENESS OF EXERCISE. The exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
Business Day on which this Warrant shall have been surrendered to the Company as
provided in Section 1.1 hereof, and at such time the Person or Persons in whose
name or names any certificate or certificates for shares of Common Stock (or
Other Securities) shall be issuable upon such exercise as provided in Section
1.4 hereof shall be deemed to have become the holder or holders of record
thereof.
1.4 DELIVERY OF STOCK CERTIFICATES AND CASH. As soon as practicable after
the exercise of this Warrant, and in any event within three (3) Business Days
thereafter, the Company will deliver to the Holder any cash to be paid to the
Holder pursuant to Section 1.1 hereof and, at its expense (including the payment
by it of any applicable issue taxes), will cause to be issued in the name of and
delivered to the Holder or, subject to Section 8 hereof, as the Holder (upon
payment by the Holder of any applicable transfer taxes) may direct, a
certificate or certificates for the number of duly authorized, validly issued,
fully paid and nonassessable shares of Common Stock (or Other Securities) to
which the Holder shall be entitled upon such exercise (rounded to the nearest
whole share) plus, in lieu of any fractional share to which the Holder would
otherwise be entitled, cash in an amount equal to the same
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fraction of the Current Market Price per share on the Business Day next
preceding the date of such exercise. If the Warrant has been exercised in part,
the Company shall also deliver at such time to the Holder a new Warrant of like
tenor exercisable for the balance of the shares of Common Stock for which this
Warrant may be exercised.
2. ADJUSTMENT OF STOCK ISSUABLE UPON EXERCISE
2.1 GENERAL; NUMBER OF SHARES; EXERCISE PRICE. The number of shares of
Common Stock which the Holder shall be entitled to receive upon the exercise
hereof shall be the number of shares of Common Stock originally issuable upon
the exercise of this Warrant as adjusted, from time to time, pursuant to this
Section 2. The "Exercise Price," which shall initially be the Initial Exercise
Price, shall be adjusted and readjusted from time to time as provided in this
Section 2 and, as so adjusted and readjusted, shall remain in effect until a
further adjustment or readjustment thereof is required by this Section 2.
2.2 ADJUSTMENT UPON CHANGE IN MARKET VALUE. If on December 9, 2000 (the
"Anniversary Date"), the product of (a) 1.25 multiplied by (b) the average
closing bid price of the Common Stock for the 30 trading days immediately
preceding the Anniversary Date (the "Reset Price"), is less than the Exercise
Price then in effect, then the Exercise Price shall be adjusted to equal the
Reset Price and shall be subject to further adjustment as provided herein.
2.3 The Exercise Price in effect and number of shares for which this
Warrant is exercisable shall be subject to adjustment from and after the date of
issuance of this Warrant as follows:
2.3.1 DIVIDENDS AND STOCK SPLITS; REVERSE STOCK SPLITS. If the number
of shares of Common Stock (which term for purposes of this Section 2.3 shall
include all common stock of the Company) outstanding at any time after the date
hereof is increased by a stock dividend payable in shares of Common Stock or by
a subdivision or split-up of shares of Common Stock or decreased by a
combination or reverse split of the outstanding shares of Common Stock, then, on
the date such payment is made or such change is effective, the Exercise Price in
effect immediately prior to such action shall be adjusted by multiplying such
Exercise Price by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately before such event, and the denominator of
which is the number of shares of Common Stock outstanding immediately after such
event.
2.3.2 SALE OF COMMON STOCK. In the event the Company shall at any
time, or from time to time, issue, sell or exchange any shares of Common Stock
(including shares held in the Company's treasury but excluding up to (I)
1,211,236 shares and options issued to officers, directors or employees of the
Company or upon the exercise of options or other rights issued to such officers,
directors or employees pursuant to the Company's stock option, stock purchase
and related employee plans (II) up to 1,555,150 shares issuable upon exercise of
warrants or other rights issued by the Company prior to the date this Warrant
was issued, or
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(III) any securities issuable upon conversion of the Company's Series B
Preferred Stock or exercise of warrants issued pursuant to the Securities
Purchase Agreement (the "Excluded Shares")), for a consideration per share (the
"Purchase Price") less than the greater of (a) the Market Price of the Common
Stock in effect immediately prior to the issuance, sale or exchange of such
shares or (b) the Exercise Price in effect immediately prior to the issuance,
sale or exchange of such shares, then, and thereafter successively upon each
such issuance, sale or exchange, the Exercise Price in effect immediately prior
to the issuance, sale or exchange of such shares shall be reduced to an amount
determined by multiplying such Exercise Price by a fraction:
(A) the numerator of which shall be (X) the number of shares of Common
Stock of all classes outstanding immediately prior to the issuance of
such additional shares of Common Stock (excluding treasury shares but
including all shares of Common Stock issuable upon conversion or
exercise of any outstanding options, warrants, rights or convertible
securities having an exercise or purchase price less than such
Purchase Price), plus (Y) the number of shares of Common Stock which
the net aggregate consideration received by the Company for the total
number of such additional shares of Common Stock so issued would
purchase at the Exercise Price (prior to adjustment), and
(B) the denominator of which shall be (X) the number of shares of Common
Stock of all classes outstanding immediately prior to the issuance of
such additional shares of Common Stock (excluding treasury shares but
including all shares of Common Stock issuable upon conversion or
exercise of any outstanding options, warrants, rights or convertible
securities having an exercise or purchase price less than such
Purchase Price), plus (Y) the number of such additional shares of
Common Stock so issued.
2.3.3 SALE OF OPTIONS, RIGHTS OR CONVERTIBLE SECURITIES. In the event
the Company shall at any time or from time to time, issue options, warrants or
rights to subscribe for shares of Common Stock, or issue any securities
convertible into or exchangeable for shares of Common Stock (other than any
options or warrants for Excluded Shares), for a Purchase Price (determined by
dividing the Net Aggregate Consideration (as determined below) by the aggregate
number of shares of Common Stock that would be issued if all such options,
warrants, rights or convertible securities were exercised or converted to the
fullest extent permitted by their terms) less than the greater of (a) the Market
Price in effect immediately prior to the issuance, sale or exchange of such
shares or (b) the Exercise Price in effect immediately prior to the issuance of
such options or rights or convertible or exchangeable securities, then the
Exercise Price in effect immediately prior to the issuance of such options,
warrants or rights or securities shall be reduced to an amount determined by
multiplying such Exercise Price by a fraction:
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(A) the numerator of which shall be (X) the number of shares of Common
Stock of all classes outstanding immediately prior to the issuance of
such options, rights or convertible securities (excluding treasury
shares but including all shares of Common Stock issuable upon
conversion or exercise of any outstanding options, warrants, rights or
convertible securities having an exercise or purchase price less than
such Purchase Price), plus (Y) the number of shares of Common Stock
which the total amount of consideration received by the Company for
the issuance of such options, warrants, rights or convertible
securities plus the minimum amount set forth in the terms of such
security as payable to the Company upon the exercise or conversion
thereof (the "Net Aggregate Consideration") would purchase at the
Exercise Price prior to adjustment, and
(B) the denominator of which shall be (X) the number of shares of Common
Stock of all classes outstanding immediately prior to the issuance of
such options, warrants, rights or convertible securities (excluding
treasury shares but including all shares of Common Stock issuable upon
conversion or exercise of any outstanding options, warrants, rights or
convertible securities having an exercise or purchase price less than
such Purchase Price), plus (Y) the aggregate number of shares of
Common Stock that would be issued if all such options, warrants,
rights or convertible securities were exercised or converted.
2.3.4 EXPIRATION OR CHANGE IN PRICE. If the consideration per share
provided for in any options or rights to subscribe for shares of Common Stock or
any securities exchangeable for or convertible into shares of Common Stock,
changes at any time (other than as a result of the operation of the antidilution
provisions of this Section 2 or the antidilution provisions relating to the
Company's preferred stock), the Exercise Price in effect at the time of such
change shall be readjusted to the Exercise Price which would have been in effect
at such time had such options or convertible securities provided for such
changed consideration per share, at the time initially granted, issued or sold;
PROVIDED, that such adjustment of the Exercise Price will be made only as and to
the extent that the Exercise Price effective upon such adjustment remains less
than or equal to the Exercise Price that would be in effect if such options,
rights or securities had not been issued. No adjustment of the Exercise Price
shall be made under this Section 2.3.4 upon the issuance of any additional
shares of Common Stock which are issued pursuant to the exercise of any
warrants, options or other subscription or purchase rights or pursuant to the
exercise of any conversion or exchange rights in any convertible securities if
an adjustment shall previously have been made upon the issuance of such
warrants, options or other rights. Any adjustment of the Exercise Price shall be
disregarded if, as, and when the rights to acquire shares of Common Stock upon
exercise or conversion of the warrants, options, rights or convertible
securities which gave rise to such adjustment expire or are canceled without
having been exercised, so that the Exercise Price effective immediately upon
such cancellation or expiration shall be equal to the Exercise Price in effect
at the time of the issuance of the expired or canceled warrants, options, rights
or convertible securities, with such additional adjustments as would have been
made to that
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Exercise Price had the expired or canceled warrants, options, rights or
convertible securities not been issued.
2.3.5 ADJUSTMENT OF NUMBER OF SHARES FOR WHICH WARRANT IS EXERCISABLE.
Upon each adjustment in the Exercise Price pursuant to this Section 2, the
number of shares of Common Stock purchasable hereunder shall be adjusted, to the
next larger whole share, to the product obtained by multiplying the number of
shares purchasable immediately prior to such adjustment in the Exercise Price by
a fraction (i) the numerator of which shall be the Exercise Price immediately
prior to such adjustment and (ii) the denominator of which shall be the Exercise
Price immediately thereafter.
2.3.6 OTHER ADJUSTMENTS. In the event the Company shall make or issue,
or fix a record date for the determination of holders of Common Stock entitled
to receive, a dividend or other distribution payable in securities of the
Company other than shares of Common Stock, then and in each such event lawful
and adequate provision shall be made so that the Holder of this Warrant shall
receive upon exercise hereof in addition to the number of shares of Common Stock
receivable thereupon, the number of securities of the Company which the Holder
would have received had the Warrant been exercised in full on the date of such
event and had the Holder thereafter, during the period from the date of such
event to and including the date of conversion, retained such securities
receivable by the Holder as aforesaid during such period, giving application to
all adjustments called for during such period under this Section 2 as applied to
such distributed securities.
2.3.7 REORGANIZATION, ETC. If the Common Stock issuable upon the
exercise of this Warrant shall be changed into the same or different number of
shares of any class or classes of stock, whether by reclassification or
otherwise (other than a subdivision or combination of shares or stock dividend
provided for above, or a reorganization, merger, consolidation or sale of assets
provided for elsewhere in this Section 2), then and in each such event the
Holder of this Warrant shall have the right thereafter to receive upon exercise
hereof the kind and amount of shares of stock and other securities and property
receivable upon such reorganization, reclassification or other change, by
holders of the number of shares of Common Stock for which this Warrant might
have been exercised immediately prior to such reorganization, reclassification
or change, all subject to further adjustment as provided herein.
2.3.8 MERGERS AND OTHER REORGANIZATIONS. If at any time or from time
to time there shall be a capital reorganization of the Common Stock (other than
a subdivision, combination, reclassification or exchange of shares provided for
elsewhere in this Section 2) or a merger or consolidation of the Company with or
into another Company or the sale of all or substantially all of the Company's
properties and assets to any other person, then, as part of and as a condition
to the effectiveness of such reorganization, merger, consolidation or sale,
lawful and adequate provision shall be made so that the Holder of this Warrant
shall thereafter be entitled to receive upon exercise hereof the number of
shares of stock or other securities or property of the Company, or of the
successor Company resulting from such merger or
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consolidation or sale, to which a holder of Common Stock would have been
entitled in connection with such capital reorganization, merger, consolidation,
or sale. In any such case, appropriate provisions shall be made with respect to
the rights of the Holder of this Warrant after the reorganization, merger,
consolidation or sale to the end that the provisions of this Section 2
(including, without limitation, provisions for adjustment of the applicable
Exercise Price and the number of shares purchasable upon exercise of this
Warrant) shall thereafter be applicable, as nearly as may be, with respect to
any shares of stock, securities or assets to be deliverable thereafter upon the
exercise of this Warrant.
2.3.9 CALCULATIONS. All calculations under this Section 2 shall be
made to the nearest cent or to the nearest one hundredth (1/100) of a share, as
the case may be.
2.3.10 MULTIPLE ADJUSTMENTS. If any single transaction or event would
require adjustment of the Exercise Price pursuant to more than one of the
provisions described above, only one adjustment shall be made and such
adjustment shall be in the amount of the adjustment having the highest absolute
value to the Holder.
2.3.11 MINIMUM ADJUSTMENT. No adjustment in the Exercise Price shall
be required to be made unless and until such adjustment would require a change
of at least one percent (1%) of the Exercise Price then in effect; provided,
however, that any adjustment that would not be required to be made shall be
taken into account and in subsequent adjustment.
2.3.12 CERTIFICATE. Upon the occurrence of each adjustment or
readjustment pursuant to this Section 2, the Company at its expense shall
promptly compute such adjustment or readjustment in accordance with the terms
hereof and prepare and furnish to the Holder a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Company shall, upon written request at
any time of the Holder, furnish or cause to be furnished to such holder a like
certificate setting forth (i) such adjustments and readjustments, (ii) the
Exercise Price before and after such adjustment or readjustment, and (iii) the
number of shares of Common Stock and the amount, if any, of other property which
at the time would be received upon the exercise of this Warrant.
3. OTHER DILUTIVE EVENTS. In case any event shall occur as to which the
provisions of Section 2 hereof are not strictly applicable but the failure to
make any adjustment would not, in the opinion of the Holder, fairly protect the
purchase rights represented by this Warrant in accordance with the essential
intent and principles of such Section, then, in each such case, at the request
of the Holder, the Company shall appoint a firm of independent investment
bankers of recognized national standing (which shall be completely independent
of the Company and shall be reasonably satisfactory to the Holder), which shall
give their opinion upon the adjustment, if any, on a basis consistent with the
essential intent and principles established in Section 2 hereof, necessary to
preserve, without dilution or expansion, the
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purchase rights represented by this Warrant. Upon receipt of such opinion, the
Company shall promptly mail a copy thereof to the Holder and shall make the
adjustments described therein.
4. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
certificate of incorporation or through any consolidation, merger,
reorganization, transfer of assets, 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 of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the holder of
this Warrant against dilution or other impairment. Without limiting the
generality of the foregoing, the Company (a) will not permit the par value of
any shares of stock receivable upon the exercise of this Warrant to exceed the
amount payable therefor upon such exercise, (b) will take all such action as may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable shares of stock on the exercise of the
Warrants from time to time outstanding, and (c) will not take any action which
results in any adjustment of the Exercise Price if the total number of shares of
Common Stock (or Other Securities) issuable after the action upon the exercise
of all of the Warrants would exceed the total number of shares of Common Stock
(or Other Securities) then authorized by the Company's certificate of
incorporation and available for the purpose of issue upon such exercise.
5. DISPUTES REGARDING ADJUSTMENTS. In the event of a dispute in connection
with an adjustment under this Warrant, the Company will cause independent
certified public accountants of recognized national standing (which may be the
regular auditors of the Company) selected by the Company to verify such
computation (other than any computation of the fair value of property as
determined in good faith by the Board of Directors of the Company) and prepare a
report setting forth such adjustment or readjustment and showing in reasonable
detail the method of calculation thereof and the facts upon which such
adjustment or re-adjustment is based. The Company will forthwith mail a copy of
each such report to the Holder and will, upon the written request at any time of
the Holder, furnish to the Holder a like report setting forth the Exercise Price
at the time in effect and showing in reasonable detail how it was calculated.
The Company will also keep copies of all such reports at its office maintained
pursuant to Section 11.2(a) hereof and will cause the same to be available for
inspection at such office during normal business hours by the Holder or any
prospective purchaser of a Warrant designated by the holder thereof.
6. NOTICES OF CORPORATE ACTION. In the event of
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
or
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(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any
consolidation or merger involving the Company and any other Person or any
transfer of all or substantially all the assets of the Company to any other
Person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
the Company will mail to the Holder a notice specifying (i) the date or expected
date on which any such record is to be taken for the purpose of such dividend,
distribution or right, and the amount and character of such dividend,
distribution or right and (ii) the date or expected date on which any such
reorganization, reclassification, recapitalization, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place, the time, if
any such time is to be fixed, as of which the holders of record of Common Stock
(or Other Securities) shall be entitled to exchange their shares of Common Stock
(or Other Securities) for the securities or other property deliverable upon such
reorganization, reclassification, recapitalization, consolidation, merger,
transfer, dissolution, liquidation or winding-up and a description in reasonable
detail of the transaction. Such notice shall be mailed at least twenty (20) days
prior to the date specified in (i) or (ii) above.
7. REGISTRATION OF COMMON STOCK. The shares of Common Stock (and Other
Securities) issuable upon exercise of this Warrant shall constitute Securities
(as such term is defined in the Registration Rights Agreement). The Holder of
this Warrant shall be entitled to all of the benefits afforded to a holder of
any such Securities under the Registration Rights Agreement and the Holder, by
its acceptance of this Warrant, agrees to be bound by and agrees to the terms
and conditions of the Registration Rights Agreement applicable to the Holder as
a holder of such Securities.
8. RESTRICTIVE LEGENDS. Except as otherwise permitted by this Section 8, each
certificate for Common Stock (or Other Securities) issued upon the exercise of
this Warrant, each certificate issued upon the direct or indirect transfer of
any such Common Stock (or Other Securities), this Warrant originally issued
pursuant to the Securities Purchase Agreement and each Warrant issued upon
direct or indirect transfer or in substitution for any Warrant pursuant to
Section 11 hereof shall be transferable only upon satisfaction of the conditions
specified in Section 8 of the Securities Purchase Agreement and in this Section
8 and shall be stamped or otherwise imprinted with legends in substantially the
form required by Section 8 of the Securities Purchase Agreement.
Notwithstanding any other provision of this Section 8 or of the Securities
Purchase Agreement, no opinion of counsel shall be necessary for a transfer of
Restricted Securities by the holder thereof to a subsidiary, shareholder,
partner or other affiliate of such holder, if the transferee agrees in writing
to be subject to the terms hereof to the same extent as if such transferee were
the original Holder of this Warrant.
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9. AVAILABILITY OF INFORMATION. The Company will use its best efforts to
comply with the reporting requirements of Sections 13 and 15 of the Exchange Act
and will use its best efforts to comply with all other public information
reporting requirements of the Commission (including pursuant to Rule 144 and
144A promulgated by the Commission under the Securities Act) from time to time
in effect and relating to the availability of an exemption from the Securities
Act for the sale of any Restricted Securities. The Company will also cooperate
with each holder of any Restricted Securities in supplying such information as
may be necessary for such holder to complete and file any information reporting
forms presently or hereafter required by the Commission as a condition to the
availability of an exemption from the Securities Act for the sale of any
Restricted Securities. The Company will furnish to the Holder of this Warrant,
promptly upon their becoming available, copies of all financial statements,
reports, notices and proxy statements sent or made available generally by the
Company to its stockholders, and copies of all regular and periodic reports and
all registration statements and prospectuses filed by the Company with any
securities exchange or with the Commission.
10. RESERVATION OF STOCK. The Company will at all times reserve and keep
available, solely for issuance and delivery upon exercise of this Warrant, the
number of shares of Common Stock (or Other Securities) from time to time
issuable upon exercise of this Warrant. All shares of Common Stock (or Other
Securities) issuable upon exercise of this Warrant shall be duly authorized and,
when issued upon such exercise, shall be validly issued and, in the case of
shares, fully paid and nonassessable with no liability on the part of the
holders thereof.
11. OWNERSHIP, TRANSFER AND SUBSTITUTION OF WARRANTS.
11.1 OWNERSHIP OF WARRANTS. The Company may treat the person in whose name
this Warrant is registered on the register kept at the office of the Company or
at the office of its transfer agent maintained pursuant to Section 11.2(a)
hereof as the owner and Holder thereof for all purposes, notwithstanding any
notice to the contrary. This Warrant may be exercised by a new Holder without a
new Warrant first having been issued.
11.2 OFFICE; TRANSFER AND EXCHANGE OF WARRANTS:
(a) Company will maintain an office in Denver, Colorado where
notices, presentations and demands in respect of this Warrant may be made
upon it. Such office shall be maintained at World Trade Center, 0000
Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 until such time as the Company
shall notify the holders of this Warrant of any change of location of such
office.
(b) The Company shall cause to be kept at its office maintained
pursuant to Section 11.2(a) hereof or at the office of its transfer agent a
register for the registration and transfer of this Warrant. The name and
address of the Holder of this Warrant, the
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transfers thereof and the names and addresses of transferees of this
Warrant shall be registered in such register. The Person in whose name this
Warrant shall be so registered shall be deemed and treated as the owner and
Holder thereof for all purposes of this Warrant, and the Company shall not
be affected by any notice or knowledge to the contrary.
(c) Upon the surrender of this Warrant, properly endorsed, for
registration of transfer or for exchange at the office of the Company
maintained pursuant to Section 11.2(a) hereof, the Company at its expense
will execute and deliver to or upon the order of the Holder thereof a new
Warrant or Warrants of like tenor, in the name of such Holder or as such
Holder (upon payment by such holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face thereof for the number of
shares of Common Stock called for on the face of the Warrant so
surrendered.
11.3 REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such mutilation, upon surrender of such
Warrant for cancellation at the office of the Company maintained pursuant to
Section 11.2(a) hereof, and, if reasonably requested by the Company, upon
receipt of an indemnity (which may include a bond or other surety at the request
of the Company) reasonably acceptable to the Company, the Company at its expense
will execute and deliver, in lieu thereof, a new Warrant of like tenor and
denomination and dated the date hereof.
11.4 SECURITIES LAW REPRESENTATIONS. The Holder and each transferee of this
Warrant or of the securities issuable upon the exercise of this Warrant, by its
acceptance of this Warrant or the transfer thereof or of any shares of Common
Stock (or Other Securities) issuable upon exercise of this Warrant, each hereby
represents and warrants that this Warrant and the shares of Common Stock (or
Other Securities) issuable upon exercise of this Warrant are being acquired and
will be acquired for investment purposes for the account of the Holder of such
securities, without intention of resale or distribution thereof that is not in
compliance with the Securities Act and applicable state securities laws.
11.5 TRANSFER TAXES. The Company shall not be required to pay any federal
or state transfer tax or charge that may be payable in respect of any transfer
involved in the transfer or delivery of this Warrant or the issuance or delivery
of certificates for Common Stock (or Other Securities) in a name other than that
of the registered Holder of this Warrant unless and until any and all such taxes
and charges shall have been paid by the Holder of this Warrant or until it has
been established to the Company's reasonable satisfaction that no such tax or
charge is due.
12. DEFINITIONS.
Anniversary Date. As defined in Section 2.2.
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Business Day. Any day other than a Saturday or Sunday or a day on which
commercial banking institutions in Boston, Massachusetts, New York, New York or
Denver, Colorado are authorized by law to be closed. Any reference to "days"
(unless Business Days are specified) shall mean calendar days.
Commission. The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act.
Common Stock. As defined in the introduction to this Warrant, such term to
include any stock into which such Common Stock shall have been changed or any
stock resulting from any reclassification of such Common Stock, and all other
stock of any class or classes (however designated) of the Company the holders of
which have the right, without limitation as to amount, either to all or to a
share of the balance of current dividends and liquidating dividends after the
payment of dividends and distributions on any shares entitled to preference.
Company. As defined in the introduction to this Warrant, such term to
include any corporation which shall succeed to or assume the obligations of the
Company hereunder in compliance with Section 2 hereof.
Current Market Price. With respect to the Common Stock, on any date
specified herein, the average of the Market Price during the period of the most
recent 10 consecutive trading days ending on such date.
Exchange Act. The Securities Exchange Act of 1934, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
Excluded Shares. As defined in Section 2.3.2.
Exercise Price. As defined in Section 2.1.
Expiration Date. As defined in Section 1.2.
Holder. The original holder of this Warrant identified in the introduction
and any Person to whom this Warrant is transferred.
Initial Exercise Price. As defined in the introduction to this Warrant.
Market Price. With respect to the Common Stock, on any date shall mean the
last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Common Stock is not listed or admitted to trading on the New
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York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Common Stock is listed or admitted to trading
or, if the Common Stock is not listed or admitted to trading on any national
securities exchange, the last quoted price, or if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported by
the Nasdaq Stock Market, Inc.'s Automated Quotation System or, if such system is
no longer in use, the principal other automated quotation system that may then
be in use, or if the Common Stock is not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Common Stock that is selected by the Board
of Directors of the Company, or, if there is no such professional market maker,
such amount as an independent investment banking firm selected by the Board of
Directors of the Company determines to be the value of a share of Common Stock.
Other Securities. Any stock (other than Common Stock) and other securities
of the Company or any other Person which the Holder at any time shall be
entitled to receive, or shall have received, upon the exercise of the Warrant,
in lieu of or in addition to Common Stock, or which at any time shall be
issuable or shall have been issued in exchange for or in replacement of Common
Stock, or Other Securities pursuant to Section 3 hereof or otherwise.
Person. A corporation, an association, a partnership, a limited liability
company, an organization, a business, an individual, a government or political
subdivision thereof or a governmental agency.
Purchase Price. As defined in Section 2.3.2.
Registration Rights Agreement. The Registration Rights Agreement in the
form of EXHIBIT B to the Securities Purchase Agreement, as from time to time in
effect.
Reset Price. As defined in Section 2.2.
Restricted Securities. All of the following: (a) this Warrant, (b) any
shares of Common Stock (or Other Securities) which have been issued upon the
exercise of this Warrant, and (c) unless the context otherwise requires, any
shares of Common Stock (or Other Securities) which are at the time issuable upon
the exercise of this Warrant.
Securities Act. The Securities Act of 1933, or any similar federal statute,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time.
Securities Purchase Agreement. As defined in the introduction to this
Warrant.
Total Exercise Price. As defined in Section 1.1.
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13. REMEDIES. The Company stipulates that the remedies at law of the Holder in
the event of any default or threatened default by the Company in the performance
of or compliance with any of the terms of this Warrant are not and will not be
adequate and that such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction but
only in the event of and against a violation by the Company of any of the terms
hereof or otherwise.
14. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in this Warrant
shall be construed as conferring upon the Holder any rights as a stockholder of
the Company (including but not limited to voting or receiving distributions to
stockholders) or as imposing any obligation on the Holder to purchase any
securities or as imposing any liabilities on the Holder as a stockholder of the
Company, whether such obligation or liabilities are asserted by the Company or
by creditors of the Company.
15. NOTICES. Except as otherwise provided in this Warrant, notices and other
communications under this Warrant shall be in writing and shall be delivered, or
mailed by registered or certified mail, return receipt requested, or by a
nationally recognized overnight courier, postage prepaid, addressed, (a) if to
the Holder, at the address set forth in the register kept at the office of the
Company maintained pursuant to Section 11.2(a) hereof or such other address as
the Holder shall have furnished to the Company in writing, or (b) if to the
Company, at its address maintained pursuant to Section 11.2(a) hereof, to the
attention of the President, or at such other address, or to the attention of
such other officer, the Company shall have furnished to the Holder in writing.
This Warrant and all other documents delivered in connection with the
transactions contemplated by the Securities Purchase Agreement embody the entire
agreement and understanding between the Holder and the Company and supersede all
prior agreements and understandings relating to the subject matter hereof.
16. GOVERNING LAW. This Warrant shall be construed and enforced in accordance
with and governed by the laws of the State of Delaware without regard to its
conflict of laws provisions.
17. AMENDMENTS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
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18. HEADINGS. The Section headings in this Warrant are for purposes of
convenience only and shall not constitute a part hereof.
METRETEK TECHNOLOGIES, INC.
By:________________________
Name:
Title:
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FORM OF SUBSCRIPTION
Date:
Metretek Technologies, Inc.
World Trade Center
0000 Xxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
The undersigned registered Holder of the within Warrant hereby irrevocably
exercises such Warrant for, and purchases thereunder, ___________ shares of
COMMON STOCK [pursuant to Section 1.1.2 of the Warrant] [pursuant to Section
1.1.1 of the Warrant and herewith makes payment of [cash equal to] [________
shares of Common Stock with a value of] $__________ therefor], and requests that
a certificate for such shares be issued in the name of _________________ and be
delivered to ________________ at the address stated below.
Signed: [ ]
By:______________________
Name:
Title:
Address: [ ]
Address for delivery of certificate:[ ]
