EXPANDED PUT RIGHT AGREEMENT
Exhibit
10.1
THIS EXPANDED PUT RIGHT AGREEMENT (this
“Agreement”),
dated as of January 4, 2011, is by and between ENER1, INC., a Florida
corporation (“Ener1”),
and INVESTINOR AS, a Norwegian investment company (the “Holder”).
A. The
Holder is a holder of shares of Series B Convertible Preferred Stock (the “Series B
Shares”) of
Think Holdings AS (“Think”).
B. Ener1,
the Holder and the other shareholders of Think Holdings, AS (“Think”)
are party to the Amended and Restated Shareholders Agreement, dated as of August
3, 2010 (the “Shareholders
Agreement”).
C. Under
the Shareholders Agreement, holders that purchased Series B Shares in the second
and most recent round of Series B financing by Think (such shares, the “Second Tranche
Shares”) have
a “put right”; that is, the right to request Ener1 to accept an exchange of (i)
such Second Tranche Shares and (ii) one-half of the Warrants to purchase Series
B Shares (the “Series B
Warrants”) that
they acquired with their Second Tranche Shares for restricted shares of Ener1
common stock (the “Ener1
Shares”).
D. The
Holder holds additional Series B Shares that it acquired in the initial round of
Series B financing by Think (such shares, the “First Tranche
Shares”), and Ener1 has agreed to expand the put right for the Holder to
cover the First Tranche Shares for Ener1 Shares, provided that the Holder (i)
funds Think not less than an additional US$2.0 million in bridge
financing contemporaneously herewith so that the aggregate amount of
additional funding by Holder is not less than US$2.5 million (the “Additional
Funding”), (ii) waives its existing special rights under Section 10 of
the Shareholders Agreement, and (iii) subject to the board approval of the
Holder and the board approval of Think, the Holder shall have the right to
invest between US$3 – 7 million of new money into Think over the next 12 months
from the date of this Agreement.
E. The
Additional Funding will, in connection with an anticipated equity financing by
Think, be converted into Series B Shares (or other Think equity securities
issued in such equity financing), and Ener1 has agreed to expand the put right
for the Holder to cover the Series B Shares (or other Think equity securities)
evidencing the Additional Funding (the “Additional
Funding Securities”) for
restricted Ener1 Shares.
In consideration of the mutual promises
made herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Ener1 and the Holder hereby agree
as follows:
1. EXPANDED
PUT RIGHT; WAIVER OF INVESTINOR SPECIAL RIGHTS.
1.1 Exchange Ratio; Registration
of Ener1 Shares.
(a) Provided
that the Holder has funded Think not less than US$2.5 million in Additional
Funding and subject to the terms and conditions set forth herein, the Holder
may, at any time prior to 5 p.m., New York City time, May 5, 2011, exercise it
put right described herein (the “Put
Right”) at
the exchange ratio described below:
|
|
(i)
|
for
each Second Tranche Unit (as defined below) delivered to Ener1, the Holder
will be entitled to receive a number of Ener1 Shares equal to the quotient
of (x) the then current US dollar equivalent of NOK 10 divided by (y) the
Ener1 Share Price (as defined in the Shareholders
Agreement). As used herein, the term “Second
Tranche Unit” means (i) one Second Tranche Share and (ii) one-half
of the number of Series B Warrants that the Holder received for the
purchase of one Second Tranche
Share;
|
|
|
(ii)
|
for
each First Tranche Unit (as defined below) delivered to Ener1, the Holder
will be entitled to receive a number of Ener1 Shares equal to the quotient
of (x) the then current US dollar equivalent of NOK 10 divided by (y) the
Ener1 Share Price. As used herein, the term “First
Tranche Unit” means (i) one First Tranche Share and (ii) the lesser
of one-half of the number of Series B Warrants that the Holder received
for the purchase of one Second Tranche Share and the actual number of
Series B Warrants then owned by the Holder;
and
|
|
|
(iii)
|
for
each Additional Funding Share Unit (as defined below) delivered to Ener1,
the Holder will be entitled to receive a number of Ener1 Shares equal to
the quotient of (x) the then current US dollar equivalent of NOK 10
divided by (y) the Ener1 Share Price. As used herein, the term
“Additional
Funding Share Unit” means (i) one Series B Share received by the
Holder in connection with the Additional Funding (whether by purchase or
conversion of a promissory note) and (ii) the lesser of one-half of the
number of Series B Warrants that the Holder received for the purchase of
one Second Tranche Share and the actual number of Series B Warrants then
owned by the Holder.
|
(b) The
Holder shall be permitted to exercise up to but not more than US$3 million of
the Put Right in any 30 day period. That is, Ener1 will not be
obligated to issue Ener1 Shares having an aggregate Ener1 Share Price of more
than US$3 million in any 30 day period in connection with an exercise of the Put
Right.
2
1.2 Delivery of Series B Shares,
Series B Warrants and Additional Funding Securities. The
Series B Shares and Series B Warrants shall be deemed delivered to Ener1 upon
the deposit of such Put Shares and Series B Warrants into the VPS account of
Ener1 bearing the number 11830.0030913. In order to facilitate such
deposits, the Holder shall execute written instructions as may be reasonably
requested by Ener1 to effectuate the transfer of the First Tranche Shares,
Second Tranche Shares and Series B Warrants into Ener1’s VPS
accounts. The Holder shall, with the assignment of its Series B
Shares to Ener1, assign all of its rights and privileges as a holder of such
Series B Shares under the Shareholders Agreement and otherwise to Ener1,
including, without limitation, its right to vote such shares and appoint
directors to the Think board.
1.3 Delivery of Ener1
Shares. Ener1 shall deliver a certificate evidencing the
number of Ener1 Shares issuable to the Holder under Section 1.1
no later than ten business days after the delivery of the corresponding
Series B Shares, Series B Warrants and Additional Funding Securities in
accordance with Section
1.2. Ener1 shall undertake to register the Ener1 Shares
issuable in connection with the Put Right as promptly as practicable so that the
Holder will be permitted to sell the Ener1 Shares it receives in connection with
a Put Right within 15 business days of the receipt of such shares by the
Holder. In order to facilitate such registration, Ener1 and the
Holder will cooperate in good faith in connection with such registration process
and enter into such agreements as may be reasonably necessary to effectuate such
registration on a timely basis. The Holder acknowledges and agrees
that Ener1’s obligation to effectuate the foregoing registration is subject to
any restrictions and delays that may be imposed on Ener1 under applicable
securities laws and regulators and contracts to which Ener1 may be a
party.
1.4 Further
Assurances. If the Holder exercises any of the rights
contained in this Section 1,
the Holder will promptly execute such documents and take such other actions
reasonably necessary to expeditiously carry out the intent of the foregoing
provisions, including an exchange agreement that contains accredited investor
representations required by Ener1 in order to issue its restricted shares in
compliance with U.S. securities laws.
1.5 Waiver of Special
Rights. The Holder hereby waives, and agrees to take any
further actions necessary to waive, all of its rights under Section 10 of the
Shareholders Agreement. The Holder shall, upon the request of Ener1
or Think, execute such documents and take such other actions reasonably
necessary to expeditiously carry out the intent of this waiver. Ener1
acknowledges and understands that the waiver given by the Holder under this
Section
1.5 was in partial consideration for the registration rights described in
Section
1.3. If, in connection with the transactions contemplated in
the term sheet attached hereto as Appendix
1, Ener1 registers Ener1 Shares issued to other shareholders of Think on
terms that are the same or more favorable than what is provided to the Holder
under Section
1.3, or grants them put rights that are more favorable than what is given
to the Holder under this Agreement, the Holder’s waiver under this Section
1.5 shall be rescinded unless and until Ener1 is able to provide the
Holder improved rights under this Agreement that are reasonably satisfactory to
the Holder. If Ener1 breaches its obligations under this Agreement
and the Holder is unable to exercise the Put Right in full in accordance with
this Agreement, the Holder’s waiver under this Section 1.5
shall be rescinded, and the Holder shall be entitled to exercise any and
all remedies against Ener1 to compensate it for any damages incurred as a result
of such breach.
1.6 Additional Investments by
the Holder in Think. The Holder shall have the right to invest
between US$3 – 7 million of new money into Think over the next 12 months from
the date of this Agreement, provided that such investment shall be subject to
the board approval of the Holder and the board of Think.
3
2. REPRESENTATIONS
AND WARRANTIES OF THE HOLDER.
The Holder hereby represents and
warrants to Ener1 and agrees with Ener1 that, as of the date
hereof:
2.1 Authorization;
Enforceability. The Holder is duly and validly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization with the requisite corporate power and authority
to acquire the Ener1 Shares as contemplated herein and to execute and deliver
this Agreement. This Agreement constitutes the Holder’s valid and
legally binding obligation, enforceable in accordance with its terms, subject to
(i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws of general application relating to or affecting
the enforcement of creditors’ rights generally and (ii) general principles of
equity.
2.2 No Conflicts. The execution and performance of this
Agreement do not conflict in any material respect with any agreement to which
the Holder is a party or is bound thereby, any court order or judgment
applicable to the Holder, or (if the Holder is an entity) the constituent
documents of the Holder.
3. REPRESENTATIONS
AND WARRANTIES OF ENER1. Ener1 hereby represents and warrants
to the Holder and agrees with the Holder that, as of the date
hereof:
3.1 Organization, Good Standing
and Qualification. Ener1 is duly organized, validly existing
and in good standing under the laws of the State of Florida and has all
requisite power and authority to carry on its business as now
conducted.
3.2 Authorization;
Consents. Ener1 has the requisite corporate power and
authority to enter into and perform its obligations under this
Agreement. All corporate action on the part of Ener1 necessary for
the authorization, execution and delivery of, and the performance by Ener1 of
its obligations under, this Agreement has been taken, and no further consent or
authorization of Ener1 or its board of directors is required.
4
3.3 Enforcement. This
Agreement has been duly executed and delivered by Ener1 and constitutes the
valid and legally binding obligation of Ener1, enforceable against it in
accordance with its terms, subject to (i) applicable bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization or other similar laws of general
application relating to or affecting the enforcement of creditors’ rights
generally and (ii) general principles of equity.
4. MISCELLANEOUS.
4.1 Survival;
Severability. The representations, warranties and covenants
made by the parties herein shall survive the execution of this Agreement. In the
event that any provision of this Agreement becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided that in such case
the parties shall negotiate in good faith to replace such provision with a new
provision which is not illegal, unenforceable or void, as long as such new
provision does not materially change the economic benefits of this Agreement to
the parties.
4.2 Successors and
Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors, heirs and
permitted assigns of the parties. Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement. No party may assign its rights or
obligations under this Agreement. For the avoidance of doubt, none of
the shareholders of Think other than the Holder and Ener1, nor Think itself,
shall have any rights or obligations under this Agreement.
4.3 Injunctive
Relief. Each party acknowledges and agrees that a breach by
such party of such party’s obligations hereunder will cause irreparable harm to
the other parties and that the remedy or remedies at law for any such breach
will be inadequate and agrees, in the event of any such breach, in addition to
all other available remedies, such other parties shall be entitled to an
injunction restraining any breach and requiring immediate and specific
performance of such obligations without the necessity of showing economic loss
or the posting of any bond.
4.4 Governing Law;
Jurisdiction. This Agreement shall be governed by and
construed under the laws of the State of New York applicable to contracts made
and to be performed entirely within the State of New York. Each party hereby
irrevocably submits to the non-exclusive jurisdiction of the state and federal
courts sitting in the County of New York, New York for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that such party is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address in effect for
notices to such party under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law.
5
4.5 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument. This Agreement may be executed and delivered by facsimile
or email transmission.
4.6 Headings. The
headings used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
4.7 Notices. Any
notice, demand or request required or permitted to be given by Ener1 or the
Holder pursuant to the terms of this Agreement shall be in writing and shall be
deemed delivered (i) when delivered personally or by verifiable facsimile
transmission, unless such delivery is made on a day that is not a business day,
in which case such delivery will be deemed to be made on the next succeeding
business day and (ii) on the next business day after timely delivery to an
overnight courier, in accordance with the notice information set forth beneath
the respective party’s signature to this Agreement, or as shall be designated by
such party in writing to the other party in accordance with this Section
4.7.
4.8 Expenses. Ener1
and the Holder shall pay all costs and expenses that such party incurs in
connection with the negotiation, execution, delivery and performance of this
Agreement.
4.9 Entire Agreement;
Amendments. This Agreement constitutes the entire agreement
between or among the parties with regard to the subject matter hereof and
thereof, superseding all prior agreements or understandings, whether written or
oral, between or among the parties. Except as expressly provided
herein, neither this Agreement nor any term hereof may be amended except
pursuant to a written instrument executed by Ener1 and the Holder, and no
provision hereof may be waived other than by a written instrument signed by the
party against whom enforcement of any such waiver is sought. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
[Signature
Pages to Follow]
6
IN WITNESS WHEREOF, the undersigned
have executed this Agreement as of the date first-above written.
|
ENER1,
INC.
|
HOLDER:
INVESTINOR
AS
|
||||
| By: |
/s/
Xxxxxxx
Xxxxxxxxxxxx
|
By:
|
/s/ Geirone Xxxxxx | ||
| Name: Xxxxxxx Xxxxxxxxxxxx | Name: Geirone Xxxxxx | ||||
| Title: CEO | Title: CEO | ||||
|
Notice
Address:
0000
Xxxxxxxx, Xxxxx 00X
Xxx
Xxxx, XX 00000
Attn: Chief
Executive Officer
Tel: (000)
000-0000
Fax: (000)
000-0000
|
Notice Address:
[Address]
Attention: ______________
Telephone:
______________
Facsimile: ______________
|
Signature
Page to Expanded Put Right Agreement
7
