WARRANT AGREEMENT between UQM TECHNOLOGIES, INC. and COMPUTERSHARE INVESTOR SERVICES Dated as of _______ __, 2002
EXHIBIT 4.1
WARRANT AGREEMENT
between
UQM TECHNOLOGIES, INC.
and
COMPUTERSHARE INVESTOR SERVICES
Dated as of _______ __, 2002
This Agreement, dated as of _______ __, 2002, is between UQM Technologies, Inc., a
Colorado corporation (the "Company") and Computershare Investor Services, a
_________ corporation (the "Warrant Agent").
The Company, at or about the time that it is entering into this Agreement, proposes to
issue and sell to public investors shares of its common stock along with warrants. For
each five shares of common stock purchased in the offering, investors will receive a
warrant(a "Warrant") to purchase one share of common stock of the Company
("Common Stock"), subject to adjustment in certain circumstances, all on the
terms and conditions set forth in this Agreement.
The Company wishes to retain the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing so to act, in connection with the issuance, transfer, exchange
and replacement of the certificates evidencing the Warrants to be issued under this
Agreement (the "Warrant Certificates") and the exercise of the Warrants;
The Company and the Warrant Agent wish to enter into this Agreement to set forth the terms
and conditions of the Warrants and the rights of the holders thereof
("Warrantholders") and to set forth the respective rights and obligations of the
Company and the Warrant Agent. Each Warrantholder is an intended beneficiary of this
Agreement with respect to the rights of Warrantholders herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set
forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent
The Company appoints the Warrant Agent to act as agent for the Company in accordance with
the instructions in this Agreement and the Warrant Agent accepts such appointment.
Section 2. Date, Denomination and Execution of Warrant Certificates
The Warrant Certificates (and the Form of Election to Purchase and the Form of Assignment
to be printed on the reverse thereof) shall be in registered form only and shall be
substantially of the tenor and purport recited in Exhibit A hereto, and may have such
letters, numbers or other marks of identification or designation and such legends,
summaries or endorsements printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this Agreement, or as
may be required to comply with any law, or with any rule or regulation made pursuant
thereto, or with any rule or regulation of any stock exchange on which the Common Stock or
the Warrants may be listed or any automated quotation system, or to conform to usage. Each
Warrant Certificate shall entitle the registered holder thereof, subject to the provisions
of this Agreement and of the Warrant Certificate, to purchase, on or after ____________,
2002 and on or before the close of business on _________, 2004 (the " Expiration
Date"), one fully paid and non-assessable share of Common Stock for each Warrant
evidenced by such Warrant Certificate for $___. The exercise price of the Warrants (the
"Exercise Price") is subject to adjustments as provided in Section 6 hereof.
Each Warrant Certificate issued to the public as described in the recitals, above, shall
be dated _____________, 2002; each other Warrant Certificate shall be dated the date on
which the Warrant Agent receives valid issuance instructions from the Company or a
transferring holder of a Warrant Certificate or, if such instructions specify another
date, such other date.
For purposes of this Agreement, the term "close of business" on any given date
shall mean 5:00 p.m., New York time, on such date; provided, however, that if such date is
not a business day, it shall mean 5:00 p.m., New York time, on the next succeeding
business day. For purposes of this Agreement, the term "business day" shall mean
any day other than a Saturday, Sunday, or a day on which banking institutions in New York,
New York are authorized or obligated by law to be closed.
Each Warrant Certificate shall be executed on behalf of the Company by the Chairman of the
Board or its President or a Vice President, either manually or by facsimile signature
printed thereon, and have affixed thereto the Company's seal or a facsimile thereof which
shall be attested by the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. Each Warrant Certificate shall be manually
countersigned by the Warrant Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have signed any Warrant
Certificate shall cease to be such officer of the Company before countersignature by the
Warrant Agent and issue and delivery thereof by the Company, such Warrant Certificate,
nevertheless, may be countersigned by the Warrant Agent, issued and delivered with the
same force and effect as though the person who signed such Warrant Certificate had not
ceased to be such officer of the Company.
Section 3. Subsequent Issue of Warrant Certificates
Subsequent to their original issuance, no Warrant Certificates shall be reissued except
(i) Warrant Certificates issued upon transfer thereof in accordance with Section 4 hereof,
(ii) Warrant Certificates issued upon any combination, split-up or exchange of Warrant
Certificates pursuant to Section 4 hereof, (iii) Warrant Certificates issued in
replacement of mutilated, destroyed, lost or stolen Warrant Certificates pursuant to
Section 5 hereof, (iv) Warrant Certificates issued upon the partial exercise of Warrant
Certificates pursuant to Section 7 hereof, and (v) Warrant Certificates issued to reflect
any adjustment or change in the Exercise Price or the number or kind of shares purchasable
thereunder pursuant to Section 22 hereof. The Warrant Agent is hereby irrevocably
authorized to countersign and deliver, in accordance with the provisions of said Sections
4, 5, 7 and 22, the new Warrant Certificates required for purposes thereof, and the
Company, whenever required by the Warrant Agent, will supply the Warrant Agent with
Warrant Certificates duly executed on behalf of the Company for such purposes.
Section 4. Transfers and Exchanges of Warrant Certificates
The Warrant Agent will keep or cause to be kept books for registration of ownership and
transfer of the Warrant Certificates issued hereunder. Such registers shall show the names
and addresses of the respective holders of the Warrant Certificates and the kind and
number of Warrants evidenced by each such Warrant Certificate.
The Warrant Agent shall, from time to time, register the transfer of any outstanding
Warrants upon the books to be maintained by the Warrant Agent for that purpose, upon
surrender of the Warrant Certificate evidencing such Warrants, with the Form of Assignment
duly filled in and executed with such signature guaranteed by a banking institution or
NASD member and such supporting documentation as the Warrant Agent or the Company
may reasonably require, to the Warrant Agent at its stock transfer office in New York, New
York at any time on or before the Expiration Date of such Warrant, and upon payment to the
Warrant Agent for the account of the Company of an amount equal to any applicable transfer
tax. Payment of the amount of such tax may be made in cash, or by certified or official
bank check, payable in lawful money of the United States of America to the order of the
Company.
Upon receipt of a Warrant Certificate, with the Form of Assignment duly filled in and
executed, accompanied by payment of an amount equal to any applicable transfer tax, the
Warrant Agent shall promptly cancel the surrendered Warrant Certificate and countersign
and deliver to the transferee a new Warrant Certificate for the number of full Warrants,
transferred to such transferee; provided, however, that in case the registered holder of
any Warrant Certificate shall elect to transfer fewer than all of the Warrants evidenced
by such Warrant Certificate, the Warrant Agent in addition shall promptly countersign and
deliver to such registered holder a new Warrant Certificate or Certificates for the number
of full Warrants not so transferred.
Any Warrant Certificate or Certificates may be exchanged at the option of the holder
thereof for another Warrant Certificate or Certificates of different denominations, of
like tenor and representing in the aggregate the same kind and number of Warrants, upon
surrender of such Warrant Certificate or Certificates, with the Form of Assignment duly
filled in and executed, to the Warrant Agent, at any time or from time to time after the
close of business on the date hereof and prior to the close of business on the Expiration
Date relating to such Warrant. The Warrant Agent shall promptly cancel the surrendered
Warrant Certificate and deliver the new Warrant Certificate pursuant to the provisions of
this Section.
Section 5. Mutilated, Destroyed, Lost or Stolen Warrant Certificates
Upon receipt by the Company and the Warrant Agent of evidence reasonably satisfactory to
them of the loss, theft, destruction or mutilation of any Warrant Certificate, and in the
case of loss, theft or destruction, of indemnity or security reasonably satisfactory to
them, and reimbursement to them of all reasonable expenses incidental thereto, and, in the
case of mutilation, upon surrender and cancellation of the Warrant Certificate, the
Warrant Agent shall countersign and deliver a new Warrant Certificate of like tenor for
the same kind and number of Warrants.
Section 6. Adjustments of Number and Kind of Shares Purchasable and Exercise Price
The number and kind of securities or other property purchasable upon exercise of a Warrant
shall be subject to adjustment from time to time upon the occurrence, after the date
hereof, of any of the following events:
A. In case the Company shall (1) pay a dividend in, or make a distribution of, shares of
capital stock on its outstanding Common Stock, (2) subdivide its outstanding shares of
Common Stock into a greater number of such shares or (3) combine its outstanding shares of
Common Stock into a smaller number of such shares, the total number of shares of Common
Stock purchasable upon the exercise of each Warrant outstanding immediately prior thereto
shall be adjusted so that the holder of any Warrant Certificate thereafter surrendered for
exercise shall be entitled to receive at the same aggregate Exercise Price the number of
shares of capital stock (of one or more classes) which such holder would have owned or
have been entitled to receive immediately following the happening of any of the events
described above had such Warrant been exercised in full immediately prior to the record
date with respect to such event. Any adjustment made pursuant to this Subsection shall, in
the case of a stock dividend or distribution, become effective as of the record date
therefor and, in the case of a subdivision or combination, be made as of the effective
date thereof. If, as a result of an adjustment made pursuant to this Subsection, the
holder of any Warrant Certificate thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of capital stock of the Company, the
Board of Directors of the Company (whose determination shall be conclusive and shall be
evidenced by a Board resolution filed with the Warrant Agent) shall determine the
allocation of the adjusted Exercise Price between or among shares of such classes of
capital stock.
B. In the event of a capital reorganization or a reclassification of the Common Stock
(except as provided in Subsection A. above or Subsection D. below), any Warrantholder,
upon exercise of Warrants, shall be entitled to receive, in substitution for the Common
Stock to which he would have become entitled upon exercise immediately prior to such
reorganization or reclassification, the shares (of any class or classes) or other
securities or property of the Company (or cash) that he would have been entitled to
receive at the same aggregate Exercise Price upon such reorganization or reclassification
if such Warrants had been exercised immediately prior to the record date with respect to
such event; and in any such case, appropriate provision (as determined by the Board of
Directors of the Company, whose determination shall be conclusive and shall be evidenced
by a certified Board resolution filed with the Warrant Agent) shall be made for the
application of this Section 6 with respect to the rights and interests thereafter of the
Warrantholders (including but not limited to the allocation of the Exercise Price between
or among shares of classes of capital stock), to the end that this Section 6 (including
the adjustments of the number of shares of Common Stock or other securities purchasable
and the Exercise Price thereof) shall thereafter be reflected, as nearly as reasonably
practicable, in all subsequent exercises of the Warrants for any shares or securities or
other property (or cash) thereafter deliverable upon the exercise of the Warrants.
C. Whenever the number of shares of Common Stock or other securities purchasable upon
exercise of a Warrant is adjusted as provided in this Section 6, the Company will promptly
file with the Warrant Agent a certificate signed by a Chairman or co-Chairman of the Board
or the President or a Vice President of the Company and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Company setting forth the
number and kind of securities or other property purchasable upon exercise of a Warrant as
so adjusted, stating that such adjustments in the number or kind of shares or other
securities or property conform to the requirements of this Section 6, and setting forth a
brief statement of the facts accounting for such adjustments. Promptly after receipt of
such certificate, the Company, or the Warrant Agent at the Company's request, will
deliver, by first-class, postage prepaid mail, a brief summary thereof (to be supplied by
the Company) to the registered holders of the outstanding Warrant Certificates; provided,
however, that failure to file or to give any notice required under this Subsection, or any
defect therein, shall not affect the legality or validity of any such adjustments under
this Section 6; and provided, further, that, where appropriate, such notice may be given
in advance and included as part of the notice required to be given pursuant to Section 12
hereof.
D. In case of any consolidation of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not result in any
reclassification or change of the outstanding Common Stock), or in case of any sale or
conveyance to another corporation of the property of the Company as an entirety or
substantially as an entirety, the corporation formed by such consolidation or merger or
the corporation which shall have acquired such assets, as the case may be, shall execute
and deliver to the Warrant Agent a supplemental warrant agreement providing that the
holder of each Warrant then outstanding shall have the right thereafter (until the
expiration of such Warrant) to receive, upon exercise of such Warrant, solely the kind and
amount of shares of stock and other securities and property (or cash) receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of Common
Stock of the Company for which such Warrant might have been exercised immediately prior to
such consolidation, merger, sale or transfer. Such supplemental warrant agreement shall
provide for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided in this Section. The above provision of this Subsection shall
similarly apply to successive consolidations, mergers, sales or transfers.
The Warrant Agent shall not be under any responsibility to determine the correctness of
any provision contained in any such supplemental warrant agreement relating to either the
kind or amount of shares of stock or securities or property (or cash) purchasable by
holders of Warrant Certificates upon the exercise of their Warrants after any such
consolidation, merger, sale or transfer or of any adjustment to be made with respect
thereto, but subject to the provisions of Section 20 hereof, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in relying
upon, a certificate of a firm of independent certified public accountants (who may be the
accountants regularly employed by the Company) with respect thereto.
E. Irrespective of any adjustments in the number or kind of shares issuable upon exercise
of Warrants, Warrant Certificates theretofore or thereafter issued may continue to express
the same price and number and kind of shares as are stated in the similar Warrant
Certificates initially issuable pursuant to this Warrant Agreement.
F. The Company may retain a firm of independent public accountants of recognized standing,
which may be the firm regularly retained by the Company, selected by the Board of
Directors of the Company or the Executive Committee of said Board, and not disapproved by
the Warrant Agent, to make any computation required under this Section, and a certificate
signed by such firm shall, in the absence of fraud or gross negligence, be conclusive
evidence of the correctness of any computation made under this Section.
G. For the purpose of this Section, the term "Common Stock" shall mean (i) the
Common Stock or (ii) any other class of stock resulting from successive
changes or reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value. In the event
that at any time as a result of an adjustment made pursuant to this Section, the holder of
any Warrant thereafter surrendered for exercise shall become entitled to receive any
shares of capital stock of the Company other than shares of Common Stock, thereafter the
number of such other shares so receivable upon exercise of any Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Common Stock contained in this Section, and all
other provisions of this Agreement, with respect to the Common Stock, shall apply on like
terms to any such other shares.
Section 7. Exercise of Warrants
The registered holder of any Warrant Certificate may exercise the Warrants evidenced
thereby, in whole at any time or in part from time to time at or prior to the close of
business, on the Expiration Date relating to such Warrant, subject to the provisions of
Section 9, at which time the Warrant Certificates shall be and become wholly void and of
no value. Warrants may be exercised by their holders as follows:
A. Exercise of Warrants shall be accomplished upon surrender of the Warrant Certificate
evidencing such Warrants, with the Form of Election to Purchase on the reverse side
thereof duly filled in and executed, to the Warrant Agent at its stock transfer office in
New York, New York, together with payment to the Company of the Exercise Price (as of the
date of such surrender) of the Warrants then being exercised and an amount equal to any
applicable transfer tax and, if requested by the Company, any other taxes or governmental
charges which the Company may be required by law to collect in respect of such exercise.
Payment of the Exercise Price and other amounts may be made by wire transfer of good
funds, or by certified or bank cashier's check, payable in lawful money of the United
States of America to the order of the Company. No adjustment shall be made for any cash
dividends, whether paid or declared, on any securities issuable upon exercise of a
Warrant.
B. Upon receipt of a Warrant Certificate, with the Form of Election to Purchase duly
filled in and executed, accompanied by payment of the Exercise Price of the Warrants being
exercised (and of an amount equal to any applicable taxes or government charges as
aforesaid), the Warrant Agent shall promptly request from the Transfer Agent with respect
to the securities to be issued and deliver to or upon the order of the registered holder
of such Warrant Certificate, in such name or names as such registered holder may
designate, a certificate or certificates for the number of full shares of the securities
to be purchased, together with cash made available by the Company pursuant to Section 8
hereof in respect of any fraction of a share of such securities otherwise issuable upon
such exercise. If the Warrant is then exercisable to purchase property other than
securities, the Warrant Agent shall take appropriate steps to cause such property to be
delivered to or upon the order of the registered holder of such Warrant Certificate. In
addition, if it is required by law and upon instruction by the Company, the Warrant Agent
will deliver to each Warrantholder a prospectus which complies with the provisions of
Section 9 of the Securities Act of 1933 and the Company agrees to supply Warrant Agent
with sufficient number of prospectuses to effectuate that purpose.
C. In case the registered holder of any Warrant Certificate shall exercise fewer than all
of the Warrants evidenced by such Warrant Certificate, the Warrant Agent shall promptly
countersign and deliver to the registered holder of such Warrant Certificate, or to his
duly authorized assigns, a new Warrant Certificate or Certificates evidencing the number
of Warrants that were not so exercised.
D. Each person in whose name any certificate for securities is issued upon the exercise of
Warrants shall for all purposes be deemed to have become the holder of record of the
securities represented thereby as of, and such certificate shall be dated, the date upon
which the Warrant Certificate was duly surrendered in proper form and payment of the
Exercise Price (and of any applicable taxes or other governmental charges) was made;
provided, however, that if the date of such surrender and payment is a date on which the
stock transfer books of the Company are closed, such person shall be deemed to have become
the record holder of such shares as of, and the certificate for such shares shall be
dated, the next succeeding business day on which the stock transfer books of the Company
are open (whether before, on or after the Expiration Date relating to such Warrant) and
the Warrant Agent shall be under no duty to deliver the certificate for such shares until
such date. The Company covenants and agrees that it shall not cause its stock transfer
books to be closed for a period of more than 20 consecutive business days except upon
consolidation, merger, sale of all or substantially all of its assets, dissolution or
liquidation or as otherwise provided by law.
Section 8. Fractional Interests
The Company shall not be required to issue any Warrant Certificate evidencing a fraction
of a Warrant or to issue fractions of shares of securities on the exercise of the
Warrants. If any fraction (calculated to the nearest one-hundredth) of a Warrant or a
share of securities would, except for the provisions of this Section, be issuable on the
exercise of any Warrant, the Company shall, at its option, either issue the required
fractional Warrant or share or purchase such fraction for an amount in cash equal to the
current value of such fraction computed on the basis of the closing market price (as
quoted on the Company's principal stock exchange) on the trading day immediately preceding
the day upon which such Warrant Certificate was surrendered for exercise in accordance
with Section 7 hereof. If the Company's common stock is not quoted on a stock
exchange or in the National Association of Securities Dealers Automated Quotation System,
then the value shall be the highest bid price quoted for such day as reported by the
National Quotation Bureau pink sheets. If there is no active public market, the
value shall be the fair market value thereof as reasonably determined in good faith by the
Board of Directors of the Company. By accepting a Warrant Certificate, the holder
thereof expressly waives any right to receive a Warrant Certificate evidencing any
fraction of a Warrant or to receive any fractional share of securities upon exercise of a
Warrant, except as expressly provided in this Section 8.
Section 9. Reservation of Equity Securities
The Company covenants that it will at all times reserve and keep available, free from any
pre-emptive rights, out of its authorized and unissued equity securities, solely for the
purpose of issue upon exercise of the Warrants, such number of shares of equity securities
of the Company as shall then be issuable upon the exercise of all outstanding Warrants
("Equity Securities"). The Company covenants that all Equity Securities which
shall be so issuable shall, upon such issue, be duly authorized, validly issued, fully
paid and non-assessable.
The Company covenants that if any equity securities, required to be reserved for the
purpose of issue upon exercise of the Warrants hereunder, require registration with or
approval of any governmental authority under any federal or state law before such shares
may be issued upon exercise of Warrants, the Company will use all commercially reasonable
efforts to cause such securities to be duly registered, or approved, as the case may be,
and, to the extent practicable, take all such action in anticipation of and prior to the
exercise of the Warrants, including, without limitation, filing any and all post-effective
amendments to the Company's Registration Statement on Form S-3 (Registration No.
333-75520) necessary to permit a public offering of the securities underlying the Warrants
at any and all times during the term of this Agreement, provided, however, that in no
event shall such securities be issued, and the Company is authorized to refuse to honor
the exercise of any Warrant, if such exercise would result in the opinion of the Company's
Board of Directors, upon advice of counsel, in the violation of any law.
Section 10. Reduction of Exercise Price Below Par Value
Before taking any action that would cause an adjustment pursuant to Section 6 hereof
reducing the portion of the Exercise Price required to purchase one share of capital stock
below the then par value (if any) of a share of such capital stock, the Company will use
its best efforts to take any corporate action which, in the opinion of its counsel, may be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of such capital stock.
Section 11. Payment of Taxes
The Company covenants and agrees that it will pay when due and payable any and all federal
and state documentary stamp and other original issue taxes which may be payable in respect
of the original issuance of the Warrant Certificates, or any shares of Common Stock or
other securities upon the exercise of Warrants. The Company shall not, however, be
required (i) to pay any tax which may be payable in respect of any transfer involved in
the transfer and delivery of Warrant Certificates or the issuance or delivery of
certificates for Common Stock or other securities in a name other than that of the
registered holder of the Warrant Certificate surrendered for purchase or (ii) to issue or
deliver any certificate for shares of Common Stock or other securities upon the exercise
of any Warrant Certificate until any such tax shall have been paid, all such tax being
payable by the holder of such Warrant Certificate at the time of surrender.
Section 12. Notice of Certain Corporate Action
In case the Company after the date hereof shall propose (i) to offer to the holders of
Common Stock, generally, rights to subscribe to or purchase any additional shares of any
class of its capital stock, any evidences of its indebtedness or assets, or any other
rights or options or (ii) to effect any reclassification of Common Stock (other than a
reclassification involving merely the subdivision or combination of outstanding shares of
Common Stock) or any capital reorganization, or any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the Company is required,
or any sale, transfer or other disposition of its property and assets substantially as an
entirety, or the liquidation, voluntary or involuntary dissolution or winding-up of the
Company, then, in each such case, the Company shall file with the Warrant Agent and the
Company, or the Warrant Agent on its behalf, shall mail (by first-class, postage prepaid
mail) to all registered holders of the Warrant Certificates notice of such proposed
action, which notice shall specify the date on which the books of the Company shall close
or a record be taken for such offer of rights or options, or the date on which such
reclassification, reorganization, consolidation, merger, sale, transfer, other
disposition, liquidation, voluntary or involuntary dissolution or winding-up shall take
place or commence, as the case may be, and which shall also specify any record date for
determination of holders of Common Stock entitled to vote thereon or participate therein
and shall set forth such facts with respect thereto as shall be reasonably necessary to
indicate any adjustments in the Exercise Price and the number or kind of shares or other
securities purchasable upon exercise of Warrants which will be required as a result of
such action. Such notice shall be filed and mailed in the case of any action covered by
clause (i) above, at least ten days prior to the record date for determining holders of
the Common Stock for purposes of such action or, if a record is not to be taken, the date
as of which the holders of shares of Common Stock of record are to be entitled to such
offering; and, in the case of any action covered by clause (ii) above, at least 20 days
prior to the earlier of the date on which such reclassification, reorganization,
consolidation, merger, sale, transfer, other disposition, liquidation, voluntary or
involuntary dissolution or winding-up is expected to become effective and the date on
which it is expected that holders of shares of Common Stock of record on such date shall
be entitled to exchange their shares for securities or other property deliverable upon
such reclassification, reorganization, consolidation, merger, sale, transfer, other
disposition, liquidation, voluntary or involuntary dissolution or winding-up.
Failure to give any such notice or any defect therein shall not affect the legality or
validity of any transaction listed in this Section 12.
Section 13. Disposition of Proceeds on Exercise of Warrant Certificates, etc.
The Warrant Agent shall account promptly to the Company with respect to Warrants exercised
and concurrently pay to the Company all moneys received by the Warrant Agent for the
purchase of securities or other property through the exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement available for inspection by
Warrantholders during normal business hours at its stock transfer office. Copies of this
Agreement may be obtained upon written request addressed to the Warrant Agent at its stock
transfer office in New York, New York.
Section 14. Warrantholder Not Deemed a Stockholder
No Warrantholder, as such, shall be entitled to vote, 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 of the Warrants represented thereby for any purpose whatever, nor
shall anything contained herein or in any Warrant Certificate be construed to confer upon
any Warrantholder, as such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par value or
change of stock to no par value, consolidation, merger, conveyance or otherwise), or to
receive notice of meetings or other actions affecting stockholders (except as provided in
Section 12 hereof), or to receive dividend or subscription rights, or otherwise, until
such Warrant Certificate shall have been exercised in accordance with the provisions
hereof and the receipt of the Exercise Price and any other amounts payable upon such
exercise by the Warrant Agent.
Section 15. Right of Action
All rights of action in respect to this Agreement are vested in the respective registered
holders of the Warrant Certificates; and any registered holder of any Warrant Certificate,
without the consent of the Warrant Agent or of any other holder of a Warrant Certificate,
may, in his own behalf for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or otherwise in
respect of, his right to exercise the Warrants evidenced by such Warrant Certificate, for
the purchase of shares of the Common Stock in the manner provided in the Warrant
Certificate and in this Agreement.
Section 16. Agreement of Holders of Warrant Certificates
Every holder of a Warrant Certificate by accepting the same consents and agrees with the
Company, the Warrant Agent and with every other holder of a Warrant Certificate that:
A. the Warrant Certificates are transferable on the registry books of the Warrant Agent
only upon the terms and conditions set forth in this Agreement;
and
B. the Company and the Warrant Agent may deem and treat the person in whose name the
Warrant Certificate is registered as the absolute owner of the Warrant (notwithstanding
any notation of ownership or other writing thereon made by anyone other than the Company
or the Warrant Agent) for all purposes whatever and neither the Company nor the Warrant
Agent shall be affected by any notice to the contrary.
Section 17. Cancellation of Warrant Certificates
In the event that the Company shall purchase or otherwise acquire any Warrant Certificate
or Certificates after the issuance thereof, such Warrant Certificate or Certificates shall
thereupon be delivered to the Warrant Agent and be canceled by it and retired. The Warrant
Agent shall also cancel any Warrant Certificate delivered to it for exercise, in whole or
in part, or delivered to it for transfer, split-up, combination or exchange. Warrant
Certificates so canceled shall be delivered by the Warrant Agent to the Company from time
to time, or disposed of in accordance with the instructions of the Company.
Section 18. Concerning the Warrant Agent
The Company agrees to pay to the Warrant Agent from time to time, on demand of the Warrant
Agent, reasonable compensation for all services rendered by it hereunder and also its
reasonable expenses, including counsel fees, and other disbursements incurred in the
administration and execution of this Agreement and the exercise and performance of its
duties hereunder. The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense, incurred without gross negligence,
bad faith or willful misconduct on the part of the Warrant Agent, arising out of or in
connection with the acceptance and administration of this Agreement.
Section 19. Merger or Consolidation or Change of Name of Warrant Agent
Any corporation into which the Warrant Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to which the
Warrant Agent shall be a party, or any corporation succeeding to the corporate trust
business of the Warrant Agent, shall be the successor to the Warrant Agent hereunder
without the execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation would be eligible for appointment as a
successor warrant agent under the provisions of Section 21 hereof. In case at the time
such successor to the Warrant Agent shall succeed to the agency created by this Agreement,
any of the Warrant Certificates shall have been countersigned but not delivered, any such
successor to the Warrant Agent may adopt the countersignature of the original Warrant
Agent and deliver such Warrant Certificates so countersigned; and in case at that time any
of the Warrant Certificates shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrant Certificates either in the name of the
predecessor Warrant Agent or in the name of the successor Warrant Agent; and in all such
cases such Warrant Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and at such time any of
the Warrant Certificates shall have been countersigned but not delivered, the Warrant
Agent may adopt the countersignature under its prior name and deliver Warrant Certificates
so countersigned; and in case at that time any of the Warrant Certificates shall not have
been countersigned, the Warrant Agent may countersign such Warrant Certificates either in
its prior name or in its changed name; and in all such cases such Warrant Certificates
shall have the full force provided in the Warrant Certificates and in this Agreement.
Section 20. Duties of Warrant Agent
The Warrant Agent undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of Warrant
Certificates, by their acceptance thereof, shall be bound:
A. The Warrant Agent may consult with counsel satisfactory to it (who may be counsel for
the Company), and the opinion of such counsel shall be full and complete authorization and
protection to the Warrant Agent as to any action taken, suffered or omitted by it in good
faith and in accordance with such opinion; provided, however, that the Warrant Agent shall
have exercised reasonable care in the selection of such counsel. Fees and expenses of such
counsel, to the extent reasonable, shall be paid by the Company.
B. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall
deem it necessary or desirable that any fact or matter be proved or established by the
Company prior to taking or suffering any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by a Chairman or co-Chairman
of the Board or the President or a Vice President or the Secretary of the Company and
delivered to the Warrant Agent; and such certificate shall be full authorization to the
Warrant Agent for any action taken or suffered in good faith by it under the provisions of
this Agreement in reliance upon such certificate.
C. The Warrant Agent shall be liable hereunder only for its own gross negligence, bad
faith or willful misconduct.
D. The Warrant Agent shall not be liable for or by reason of any of the statements of fact
or recitals contained in this Agreement or in the Warrant Certificates (except its
countersignature on the Warrant Certificates and such statements or recitals as describe
the Warrant Agent or action taken or to be taken by it) or be required to verify the same,
but all such statements and recitals are and shall be deemed to have been made by the
Company only.
E. The Warrant Agent shall not be under any responsibility in respect of the validity of
this Agreement or the execution and delivery hereof (except the due execution hereof by
the Warrant Agent) or in respect of the validity or execution of any Warrant Certificate
(except its countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any Warrant
Certificate; nor shall it be responsible for the making of any change in the number of
shares of Common Stock for which a Warrant is exercisable required under the provisions of
Section 6 or responsible for the manner, method or amount of any such change or the
ascertaining of the existence of facts that would require any such adjustment or change
(except with respect to the exercise of Warrant Certificates after actual notice of any
adjustment of the Exercise Price); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares of Common
Stock to be issued pursuant to this Agreement or any Warrant Certificate or as to whether
any shares of Common Stock will, when issued, be validly issued, fully paid and
non-assessable.
F. The Warrant Agent shall be under no obligation to institute any action, suit or legal
proceeding or take any other action likely to involve expense unless the Company or one or
more registered holders of Warrant Certificates shall furnish the Warrant Agent with
reasonable security and indemnity for any costs and expenses which may be incurred. All
rights of action under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrants or the production thereof at
any trial or other proceeding relative thereto, and any such action, suit or proceeding
instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any
recovery of judgment shall be for the ratable benefit of the registered holders of the
Warrant Certificates, as their respective rights or interests may appear.
G. The Warrant Agent and any stockholder, director, officer or employee of the Warrant
Agent may buy, sell or deal in any of the Warrants or other securities of the Company or
become pecuniarily interested in any transaction in which the Company may be interested,
or contract with or lend money to or otherwise act as fully and freely as though it were
not Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent
from acting in any other capacity for the Company or for any other legal entity.
H. The Warrant Agent is hereby authorized and directed to accept instructions with respect
to the performance of its duties hereunder from a Chairman or co-Chairman of the Board or
President or a Vice President or the Secretary or the Controller of the Company, and to
apply to such officers for advice or instructions in connection with the Warrant Agent's
duties, and it shall not be liable for any action taken or suffered or omitted by it in
good faith in accordance with instructions of any such officer.
I. The Warrant Agent will not be responsible for any failure of the Company to comply with
any of the covenants contained in this Agreement or in the Warrant Certificates to be
complied with by the Company.
J. The Warrant Agent may execute and exercise any of the rights or powers hereby vested in
it or perform any duty hereunder either itself or by or through its attorneys, agents or
employees and the Warrant Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys, agents or employees or for any loss
to the Company resulting from such neglect or misconduct; provided, however, that
reasonable care shall have been exercised in the selection and continued employment of
such attorneys, agents and employees.
K. The Warrant Agent will not incur any liability or responsibility to the Company or to
any holder of any Warrant Certificate for any action taken, or any failure to take action,
in reliance on any notice, resolution, waiver, consent, order, certificate, or other
paper, document or instrument reasonably believed by the Warrant Agent to be genuine and
to have been signed, sent or presented by the proper party or parties.
L. The Warrant Agent will act hereunder solely as agent of the Company in a ministerial
capacity, and its duties will be determined solely by the provisions hereof. The Warrant
Agent will not be liable for anything which it may do or refrain from doing in connection
with this Agreement except for its own gross negligence, bad faith or willful conduct.
Section 21. Change of Warrant Agent
The Warrant Agent may resign and be discharged from its duties under this Agreement upon
30 days' prior notice in writing mailed, by registered or certified mail, to the Company.
The Company may remove the Warrant Agent or any successor warrant agent upon 30 days'
prior notice in writing, mailed to the Warrant Agent or successor warrant agent, as the
case may be, by registered or certified mail. If the Warrant Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint a
successor to the Warrant Agent and shall, within 15 days following such appointment, give
notice thereof in writing to each registered holder of the Warrant Certificates. If the
Company shall fail to make such appointment within a period of 15 days after giving notice
of such removal or after it has been notified in writing of such resignation or incapacity
by the resigning or incapacitated Warrant Agent, then the Company agrees to perform the
duties of the Warrant Agent hereunder until a successor Warrant Agent is appointed. After
appointment and execution of a copy of this Agreement in effect at that time, the
successor Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without further act
or deed; but the former Warrant Agent shall deliver and transfer to the successor Warrant
Agent, within a reasonable time, any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for the
purpose. Failure to give any notice provided for in this Section, however, or any defect
therein shall not affect the legality or validity of the resignation or removal of the
Warrant Agent or the appointment of the successor warrant agent, as the case may be.
Section 22. Issuance of New Warrant Certificates
Notwithstanding any of the provisions of this Agreement or the several Warrant
Certificates to the contrary, the Company may, at its option, issue new Warrant
Certificates in such form as may be approved by its Board of Directors to reflect any
adjustment or change in the Exercise Price or the number or kind of shares purchasable
under the several Warrant Certificates made in accordance with the provisions of this
Agreement.
Section 23. Notices
Notice or demand pursuant to this Agreement to be given or made on the Company by the
Warrant Agent or by the registered holder of any Warrant Certificate shall be sufficiently
given or made if sent by first-class or registered mail, postage prepaid, addressed (until
another address is filed in writing by the Company with the Warrant Agent) as follows:
UQM Technologies, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Subject to the provisions of Section 21, any notice pursuant to this Agreement to be given
or made by the Company or by the holder of any Warrant Certificate to or on the Warrant
Agent shall be sufficiently given or made if sent by first-class or registered mail,
postage prepaid, addressed (until another address is filed in writing by the Warrant Agent
with the Company) as follows:
____________
____________
____________
____________
Any notice or demand authorized to be given or made to the registered holder of any
Warrant Certificate under this Agreement shall be sufficiently given or made if sent by
first-class or registered mail, postage prepaid, to the last address of such holder as it
shall appear on the registers maintained by the Warrant Agent.
Section 24. Modification of Agreement
The Warrant Agent may, without the consent or concurrence of the Warrantholders, by
supplemental agreement or otherwise, concur with the Company in making any changes or
corrections in this Agreement that the Warrant Agent shall have been advised by counsel
(who may be counsel for the Company) are necessary or desirable to cure any ambiguity or
to correct any defective or inconsistent provision or clerical omission or mistake or
manifest error herein contained, or to make any other provisions in regard to matters or
questions arising hereunder and which shall not be inconsistent with the provisions of the
Warrant Certificates and which shall not adversely affect the interests of the
Warrantholders. As of the date hereof, this Agreement contains the entire and only
agreement, understanding, representation, condition, warranty or covenant between the
parties hereto with respect to the matters herein, supersedes any and all other agreements
between the parties hereto relating to such matters, and may be modified or amended only
by a written agreement signed by both parties hereto pursuant to the authority granted by
the first sentence of this Section.
Section 25. Successors
All the covenants and provisions of this Agreement by or for the benefit of the Company or
the Warrant Agent shall bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 26. Colorado Contract
This Agreement and each Warrant Certificate issued hereunder shall
be deemed to be a contract made under the laws of the State of Colorado and for all
purposes shall be construed in accordance with the laws of said State.
Section 27. Termination
This Agreement shall terminate as of the close of business on the Expiration Date, or such
earlier date upon which all Warrants shall have been exercised, except that the Warrant
Agent shall account to the Company as to all Warrants outstanding and all cash held by it
as of the close of business on the Expiration Date.
Section 28. Benefits of this Agreement
Nothing in this Agreement or in the Warrant Certificates shall be construed to give to any
person or corporation other than the Company, the Warrant Agent, and their respective
successors and assigns hereunder and the registered holders of the Warrant Certificates
any legal or equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the Warrant Agent, their
respective successors and assigns hereunder and the registered holders of the Warrant
Certificates.
Section 29. Descriptive Headings
The descriptive headings of the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 30. Counterparts
This Agreement may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all
as of the day and year first above written.
UQM Technologies, Inc.
By:
-----------------------------
Title:
--------------------------------
By:
-----------------------------
Title:
EXHIBIT
A
VOID
AFTER 5 P.M. NEW YORK TIME ON _________, 2004
WARRANTS
TO PURCHASE COMMON STOCK
WA_____
_________
Warrants
UQM Technologies, Inc.
CUSIP ________________
THIS CERTIFIES THAT
or registered assigns, is the registered holder of the number of Warrants
("Warrants") set forth above. Each Warrant entitles the holder thereof to
purchase from UQM Technologies, Inc., a corporation incorporated under the laws of the
State of Colorado ("Company"), subject to the terms and
conditions set forth hereinafter and in the Warrant Agreement hereinafter more fully
described (the "Warrant Agreement") referred to, (A) at any time on or after
_________, 2002 and on or before the close of business on __________, 2004, one fully paid
and non-assessable share of Common Stock of the Company ("Common Stock") upon
presentation and surrender of this Warrant Certificate, with the instructions for the
registration and delivery of Common Stock filled in, at the stock transfer office in New
York, New York, of Computershare Investor Services, Warrant Agent of the Company
("Warrant Agent") or of its successor warrant agent or, if there be no successor
warrant agent, at the corporate offices of the Company, and upon payment of the Exercise
Price (as defined in the Warrant Agreement) and any applicable taxes paid either in cash,
or by certified or official bank check, payable in lawful money of the United States of
America to the order of the Company. The Exercise Price shall be $___. The exercise price
is subject to adjustment as set forth in the Warrant Agreement. The number and kind of
securities or other property for which the Warrants are exercisable are subject to
further adjustment in certain events, such as mergers, splits, stock dividends,
recapitalizations, to prevent dilution. All Warrants not theretofore exercised will expire
on the Expiration Date.
This Warrant Certificate is subject to all of the terms, provisions and conditions of the
Warrant Agreement, dated as of __________, 2002 ("Warrant Agreement"), between
the Company and the Warrant Agent, to all of which terms, provisions and conditions the
registered holder of this Warrant Certificate consents by acceptance hereof. The Warrant
Agreement is incorporated herein by reference and made a part hereof and reference is made
to the Warrant Agreement for a full description of the rights, limitations of rights,
obligations, duties and immunities of the Warrant Agent, the Company and the holders of
the Warrant Certificates. Copies of the Warrant Agreement are available for inspection at
the stock transfer office of the Warrant Agent or may be obtained upon written request
addressed to the Company at UQM Technologies, Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxxx, XX
00000, Attention: Chief Financial Officer.
The Company shall not be required upon the exercise of the Warrants evidenced by this
Warrant Certificate to issue fractions of Warrants, Common Stock or other securities, but
shall make adjustment therefor in cash on the basis of the current market value of any
fractional interest as provided in the Warrant Agreement.
In certain cases, the sale of securities by the Company upon exercise of Warrants would
violate the securities laws of the United States, certain states thereof or other
jurisdictions. The Company has agreed to use all commercially reasonable efforts to cause
a registration statement to continue to be effective during the term of the Warrants with
respect to such sales under the Securities Act of 1933, and to take such action under the
laws of various states as may be required to cause the sale of securities upon exercise to
be lawful. However, the Company will not be required to honor the exercise of Warrants if,
in the opinion of the Board of Directors, upon advice of counsel, the sale of securities
upon such exercise would be unlawful.
This Warrant Certificate, with or without other Certificates, upon surrender to the
Warrant Agent, any successor warrant agent or, in the absence of any successor warrant
agent, at the corporate offices of the Company, may be exchanged for another Warrant
Certificate or Certificates evidencing in the aggregate the same number of Warrants as the
Warrant Certificate or Certificates so surrendered. If the Warrants evidenced by this
Warrant Certificate shall be exercised in part, the holder hereof shall be entitled to
receive upon surrender hereof another Warrant Certificate or Certificates evidencing the
number of Warrants not so exercised.
No holder of this Warrant Certificate, as such, shall be entitled to vote, 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 whatever, nor
shall anything contained in the Warrant Agreement or herein be construed to confer upon
the holder of this Warrant Certificate, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof or give or withhold consent to any corporate action
(whether upon any matter submitted to stockholders at any meeting thereof, or give or
withhold consent to any merger, recapitalization, issuance of stock, reclassification of
stock, change of par value or change of stock to no par value, consolidation, conveyance
or otherwise) or to receive notice of meetings or other actions affecting stockholders
(except as provided in the Warrant Agreement) or to receive dividends or subscription
rights or otherwise until the Warrants evidenced by this Warrant Certificate shall have
been exercised and the Common Stock purchasable upon the exercise thereof shall have
become deliverable as provided in the Warrant Agreement.
If this Warrant Certificate shall be surrendered for exercise within any period during
which the transfer books for the Company's Common Stock or other class of stock
purchasable upon the exercise of the Warrants evidenced by this Warrant Certificate are
closed for any purpose, the Company shall not be required to make delivery of certificates
for shares purchasable upon such transfer until the date of the reopening of said transfer
books.
Every holder of this Warrant Certificate by accepting the same consents and agrees with
the Company, the Warrant Agent, and with every other holder of a Warrant Certificate that:
(a) this Warrant Certificate is transferable on the registry books of the Warrant Agent
only upon the terms and conditions set forth in the Warrant Agreement, and
(b) the Company and the Warrant Agent may deem and treat the person in whose name this
Warrant Certificate is registered as the absolute owner hereof (notwithstanding any
notation of ownership or other writing thereon made by anyone other than the Company or
the Warrant Agent) for all purposes whatever and neither the Company nor the Warrant Agent
shall be affected by any notice to the contrary. The Company shall not be required to
issue or deliver any certificate for shares of Common Stock or other securities upon the
exercise of Warrants evidenced by this Warrant Certificate until any tax which may be
payable in respect thereof by the holder of this Warrant Certificate pursuant to the
Warrant Agreement shall have been paid, such tax being payable by the holder of this
Warrant Certificate at the time of surrender.
This Warrant Certificate shall not be valid or obligatory for any purpose until it shall
have been countersigned by the Warrant Agent.
WITNESS the facsimile signatures of the proper officers of the Company and its corporate
seal.
Dated: _____________
UQM Technologies, Inc.
By:
----------------------------------
Chief Executive Officer
Attest:
---------------------------------
Secretary
Countersigned
-------------------------------------
By:
-------------------------
Authorized Officer
