Exhibit 10.1
ASSIGNMENT
This Assignment (this "Assignment") is made as of this 27th day of
December, 2004, by Beacon Power Corporation, a Delaware corporation
("Assignor"), in favor of CRT Capital Group LLC ("Assignee").
WITNESSETH:
WHEREAS, Assignor is the holder of that certain Amended and Restated
Warrant (the "Warrant") dated as of October 18, 2004 for shares of common stock,
$.01 par value per share of Evergreen Solar, Inc., a Delaware corporation
("Evergreen"), a copy of which is attached hereto as Exhibit A;
WHEREAS, Assignor desires to irrevocably assign, convey, and transfer the
Warrant to Assignee.
NOW, THEREFORE, in consideration of the foregoing premises, of the mutual
covenants set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Assignor hereby agrees
as follows:
1. Assignment. Assignor hereby assigns, conveys and transfers to Assignee
all of its right, title and interest in and to the Warrant for an aggregate
purchase price of One Million Eight Hundred Thousand Dollars ($1,800,000.00).
2. Benefit and Governing Law. This Assignment shall be governed in all
respects by the laws of the State of Delaware and shall be binding upon and
shall inure to the benefit of the parties hereto and their successors and
assigns.
3. Further Assurances. Promptly upon request of the other party, Assignor
shall, at any time and from time to time after this Assignment, upon request of
the Assignee, execute, acknowledge and deliver to Assignor such further acts,
conveyances and assurances as may reasonably be required or appropriate to
perfect the transfer of the Warrant to Assignee and carry out the intent and
purpose of this Assignment.
IN WITNESS WHEREOF, the Assignor has executed this Assignment as of the
date first written above.
ASSIGNOR:
BEACON POWER CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
ACCEPTED:
CRT CAPITAL GROUP LLC
Address: 000 Xxxxxx Xxxxx, Xxxxxxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chief Compliance Officer
Exhibit A
THE SECURITIES EVIDENCED BY THIS WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE SOLD, TRANSFERRED, OR ASSIGNED OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED
UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
COVERING SUCH SECURITIES, THE SALE IS MADE IN COMPLIANCE WITH RULE 144 UNDER THE
SECURITIES ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF
SUCH SECURITIES REASONABLY SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE,
TRANSFER OR ASSIGNMENT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
No.: W-1
AMENDED AND RESTATED WARRANT
TO PURCHASE COMMON STOCK
OF
EVERGREEN SOLAR, INC.
(void after August 12, 2006)
THIS AMENDED AND RESTATED WARRANT TO PURCHASE COMMON STOCK OF EVERGREEN
SOLAR, INC. (the "Warrant") is entered into as of October 18, 2004 by and
between Evergreen Solar, Inc., a Delaware corporation (the "Company") and Beacon
Power Corporation ("Beacon Power").
WHEREAS, the Company and Beacon Power entered into that certain Warrant to
Purchase Common Stock of the Company dated as of May 15, 2003 (the "Original
Warrant") pursuant to which Beacon Power, or its assigns, is entitled to
purchase from the Company 2,400,000 shares of Common Stock (as defined below) at
any time before 5:00 p.m. New York City time on May 14, 2006 (the "Original
Termination Date"); and
WHEREAS, the Company and Beacon Power both desire to amend and restate the
Original Warrant to extend the Original Termination Date.
NOW THEREFORE, the Company and Beacon Power agree, pursuant to Section 9 of
the Original Warrant, that the Original Warrant is hereby amended and restated
in its entirety as follows:
1. Issuance of Warrant. FOR VALUE RECEIVED, from and after the Commencement
Time (as defined below), and subject to the terms and conditions herein set
forth, the Holder (as defined below) is entitled to purchase from the
Company, at any time before 5:00 p.m. New York City time on August 12, 2006
(the "Termination Date"), the Warrant Stock (as defined below) at a price
per share equal to the Warrant Price (as defined below) upon exercise of
this Warrant pursuant to Section 6 hereof.
2. Definitions. As used in this Warrant, the following terms have the
definitions ascribed to them below:
(a) "Business Day" means any day other than a Saturday, Sunday or
other day on which the national or state banks located in the
Commonwealth of Massachusetts, the State of New York or the District
of Columbia are authorized to be closed.
(b) "Commencement Time" means May 15, 2003.
(c) "Common Stock" means the Company's Common Stock, $.01 par value
per share.
(d) "Holder" means Beacon Power Corporation, or its assigns.
(e) "Person" means any individual, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, governmental authority or other
entity of any kind, and shall include any successor (by merger or
otherwise) of such entity.
(f) "Warrant Price" means $3.37 per share subject to adjustment under
Section 3.
(g) "Warrant Stock" means the shares of Common Stock (or other
securities) purchasable upon exercise of this Warrant. The total
number of shares to be issued upon the exercise of this Warrant shall
be 2,400,000 shares, subject to adjustment under Section 3.
3. Adjustments and Notices. The Warrant Price and/or the Warrant Stock
shall be subject to adjustment from time to time in accordance with this
Section 3. The Warrant Price and/or the Warrant Stock shall be adjusted to
reflect all of the following events that occur on or after the Commencement
Time.
(a) Subdivision, Stock Dividends or Combinations. In case the Company
shall at any time subdivide the outstanding shares of the Common Stock
or shall issue a stock dividend with respect to the Common Stock, the
Warrant Price in effect immediately prior to such subdivision or the
issuance of such dividend shall be proportionately decreased, and the
number of shares of Warrant Stock for which this Warrant may be
exercised immediately prior to such subdivision or the issuance of
such dividend shall be proportionately increased. In case the Company
shall at any time combine the outstanding shares of the Common Stock,
the Warrant Price in effect immediately prior to such combination
shall be proportionately increased, and the number of shares of
Warrant Stock for which this Warrant may be exercised immediately
prior to such combination shall be proportionately decreased. In each
of the foregoing cases, the adjustment shall be effective at the close
of business on the date of such subdivision, dividend or combination,
as the case may be.
(b) Reclassification, Exchange, Substitution, In-Kind Distribution.
Upon any reclassification, exchange, substitution or other event that
results in a change of the number and/or class of the securities
issuable upon exercise or conversion of this Warrant or upon the
payment of a dividend in securities or property other than shares of
the Common Stock, the Holder shall be entitled to receive, upon
exercise of this Warrant, the number and kind of securities and
property that Holder would have received if this Warrant had been
exercised immediately before the record date for such
reclassification, exchange, substitution, or other event or
immediately prior to the record date for such dividend. The Company or
its successor shall promptly issue to Holder a new warrant for such
new securities or other property. The new warrant shall provide for
adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section 3 including, without
limitation, adjustments to the Warrant Price and to the number of
securities or property issuable upon exercise or conversion of the new
warrant. The provisions of this Section 3(b) shall similarly apply to
successive reclassifications, exchanges, substitutions, or other
events and successive dividends.
(c) Reorganization, Merger etc. In case of any merger or consolidation
of the Company into or with another corporation where the Company is
not the surviving corporation, or sale, transfer or lease (but not
including a transfer or lease by pledge or mortgage to a bona fide
lender) of all or substantially all of the assets of the Company, the
Company, or such successor or purchasing corporation, as the case may
be, shall, as a condition to closing any such reorganization, merger
or sale, duly execute and deliver to the Holder hereof a new warrant
so that the Holder shall have the right to receive, at a total
purchase price not to exceed that payable upon the exercise or
conversion of the unexercised portion of this Warrant, and in lieu of
the shares of Warrant Stock theretofore issuable upon exercise or
conversion of this Warrant, the kind and amount of shares of stock,
other securities, money and property that would have been receivable
upon such reorganization, merger or sale by the Holder with respect to
the Warrant Stock if this Warrant had been exercised immediately
before the consummation of such transaction. Such new warrant shall
provide for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 3. The
provisions of this subparagraph (c) shall similarly apply to
successive transactions of the type described in this subparagraph
(c).
(d) Certificate of Adjustment. In each case of an adjustment or
readjustment of the Warrant Price, the Company, at its own expense,
shall cause its Chief Financial Officer to compute such adjustment or
readjustment in accordance with the provisions hereof and prepare a
certificate showing such adjustment or readjustment, and shall mail
such certificate, by first class mail, postage prepaid, to the Holder.
The certificate shall set forth such adjustment or readjustment,
showing in detail the facts upon which such adjustment or readjustment
is based. No adjustment of the Warrant Price shall be required to be
made unless it would result in an increase or decrease of at least one
cent, but any adjustments not made because of this sentence shall be
carried forward and taken into account in any subsequent adjustment
otherwise required hereunder.
(e) No Impairment. The Company shall not, by amendment of its
Certificate of Incorporation or through a reorganization, transfer of
assets, consolidation, merger, 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 to be observed or
performed under this Warrant by the Company, but shall at all times in
good faith assist in carrying out all of the provisions of this
Section 3 and in taking all such action as may be necessary or
appropriate to protect the Holder's rights under this Section 3
against impairment. If an event not specified in this Section 3 occurs
that has substantially the same economic effect on the Warrant as
those specifically enumerated, then Section 3 shall be construed
liberally, mutatis mutandis, in order to give the Warrant the intended
benefit of the protections provided under this Section 3. In such
event, the Company's Board of Directors shall make an appropriate
adjustment in the Warrant Price so as to protect the rights of the
holders of this Warrant; provided that no such adjustment shall
increase the Warrant Price as otherwise determined pursuant to this
Section 3 or decrease the number of shares of Common Stock issuable
upon exercise of this Warrant.
(f) Fractional Shares. No fractional shares shall be issuable upon
exercise or conversion of the Warrant and the number of shares to be
issued shall be rounded down to the nearest whole share. If a
fractional share interest arises upon any exercise or conversion of
the Warrant, the Company shall eliminate such fractional share
interest by paying the Holder an amount computed by multiplying the
fractional interest by the fair market value of a full share.
4. No Shareholder Rights. This Warrant, by itself, as distinguished from
any shares purchased hereunder, shall not entitle its Holder to any of the
rights of a shareholder of the Company.
5. Reservation of Stock. The Company will reserve from its authorized and
unissued stock a sufficient number of shares to provide for the issuance of
Warrant Stock upon the exercise or conversion of this Warrant. Issuance of
this Warrant shall constitute full authority to the Company's officers who
are charged with the duty of executing stock certificates to execute and
issue the necessary certificates for shares of Warrant Stock issuable upon
the exercise of this Warrant.
6. Exercise of Warrant. This Warrant may be exercised as a whole by the
Holder, at any time from and after the Commencement Time and prior to the
termination of this Warrant, by the surrender of this Warrant, together
with the Notice of Exercise and Investment Representation Statement in the
forms attached hereto as Attachments 1 and 2, respectively, duly completed
and executed at the principal office of the Company, specifying that all of
the Warrant is to be exercised and accompanied by payment in full of the
Warrant Price in wire transfer or by check with respect to the shares of
Warrant Stock being purchased. This Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to
receive the shares of Warrant Stock issuable upon such exercise shall be
treated for all purposes as the holder of such shares of record as of the
close of business on such date. As promptly as practicable after such date,
the Company shall issue and deliver to the person or persons entitled to
receive the same a certificate or certificates for the number of full
shares of Warrant Stock issuable upon such exercise.
7. Transfer of Warrant. This Warrant may be transferred or assigned by the
Holder hereof as a whole or in part, provided:
(a) that the transferor provides, at the Company's request, an opinion
of counsel satisfactory to the Company that such transfer does not
require registration under the Securities Act, and
(b) that if after such transfer there will be two or more such
Warrants (due to the Warrant having been transferred in part and not
in whole), that all persons holding a Warrant covering shares that
were covered by the original Warrant must agree in writing with each
other that none of them will exercise unless all of them exercise
simultaneously, and
(c) that unless the Company approves the transfer in writing (which
approval shall not be unreasonably withheld), that the transferee
certifies to the transferor that the transferee is not directly
engaged in the research, development or manufacture of photovoltaic
wafers, solar cells, or panels.
8. Termination. This Warrant shall terminate at 5:00 p.m. New York City
time on the Termination Date.
9. Miscellaneous. This Warrant shall be governed by the laws of the State
of Delaware, as such laws are applied to contracts to be entered into and
performed entirely in Delaware by Delaware residents. The headings in this
Warrant are for purposes of convenience and reference only, and shall not
be deemed to constitute a part hereof. Neither this Warrant nor any term
hereof may be changed or waived orally, but only by an instrument in
writing signed by the Company and the Holder of this Warrant. All notices
and other communications from the Company to the Holder of this Warrant
shall be delivered personally or by facsimile transmission or mailed by
first class mail, postage prepaid, to the address or facsimile number
furnished to the Company in writing by the last Holder of this Warrant who
shall have furnished an address or facsimile number to the Company in
writing, and if mailed shall be deemed given three days after deposit in
the United States mail. Upon receipt of evidence satisfactory to the
Company of the ownership of and the loss, theft, destruction or mutilation
of any Warrant and, in the case of any such loss, theft or destruction,
upon receipt of indemnity or security satisfactory to the Company or, in
the case of any such mutilation, upon surrender and cancellation of such
Warrant, the Company will make and deliver, in lieu of such lost, stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and
representing the right to purchase the same aggregate number of shares of
Common Stock.
10. Counterparts. This Warrant may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall together
be considered one and the same instrument.
IN WITNESS WHEREOF, this Warrant is executed as of the day, month and year
first written above.
EVERGREEN SOLAR, INC. BEACON POWER CORPORATION
By:/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
Attachment 1
NOTICE OF EXERCISE
TO: EVERGREEN SOLAR, INC.
1. The undersigned hereby elects to purchase all shares of Warrant Stock of
Evergreen Solar, Inc. pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price in full, together with all
applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares of
Warrant Stock in the name of the undersigned or in such other name as is
specified below:
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(Name in which certificate(s) are to be issued)
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(Address)
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(Name of Warrant Holder)
By:
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Title:
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Date signed:
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Attachment 2
INVESTMENT REPRESENTATION STATEMENT
In connection with the purchase of the shares of Warrant Stock upon
exercise of the enclosed Warrant, the undersigned hereby represents to Evergreen
Solar, Inc. (the "Company") as follows:
(a) The securities to be received upon the exercise of the Warrant (the
"Securities") will be acquired for investment for its own account, not as a
nominee or agent, and not with a view to the sale or distribution of any part
thereof, and the undersigned has no present intention of selling, granting
participation in or otherwise distributing the same, but subject, nevertheless,
to any requirement of law that the disposition of its property shall at all
times be within its control. By executing this statement, the undersigned
further represents that it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer, or grant participations to such
person or to any third person, with respect to any Securities issuable upon
exercise of the Warrant.
(b) The undersigned understands that the Securities issuable upon exercise
of the Warrant at the time of issuance may not be registered under the
Securities Act of 1933, as amended (the "Securities Act"), and applicable state
securities laws, on the ground that the issuance of such securities is exempt
pursuant to Section 4(2) of the Securities Act and state law exemptions relating
to offers and sales not by means of a public offering, and that the Company's
reliance on such exemptions is predicated on the undersigned's representations
set forth herein.
(c) The undersigned agrees that in no event will it make a disposition of
any Securities acquired upon the exercise of the Warrant unless and until (i) it
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a statement of the circumstances surrounding the
proposed disposition, and (ii) it shall have furnished the Company with an
opinion of counsel satisfactory to the Company and Company's counsel to the
effect that (A) appropriate action necessary for compliance with the Securities
Act and any applicable state securities laws has been taken or an exemption from
the registration requirements of the Securities Act and such laws is available,
and (B) the proposed transfer will not violate any of said laws.
(d) The undersigned acknowledges that an investment in the Company is
highly speculative and represents that it is able to fend for itself in the
transactions contemplated by this statement, has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of its investments, and has the ability to bear the economic risks
(including the risk of a total loss) of its investment. The undersigned
represents that it has had the opportunity to ask questions of the Company
concerning the Company's business and assets and to obtain any additional
information which it considered necessary to verify the accuracy of or to
amplify the Company's disclosures, and has had all questions which have been
asked by it satisfactorily answered by the Company.
(e) The undersigned acknowledges that the Securities issuable upon exercise
or conversion of the Warrant must be held indefinitely unless subsequently
registered under the Securities Act or an exemption from such registration is
available. The undersigned is aware of the provisions of Rule 144 promulgated
under the Securities Act which permit limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions, including,
among other things, the existence of a public market for the shares, the
availability of certain current public information about the Company, the resale
occurring not less than one year after a party has purchased and paid for the
security to be sold from the Company or any affiliate of the Company, the sale
being through a "broker's transaction" or in transactions directly with a
"market maker" (as provided by Rule 144(f)) and the number of shares being sold
during any three month period not exceeding specified limitations.
Dated:
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(Typed or Printed Name)
By:
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(Signature)
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(Name)
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(Title)
