Exhibit 10.17
This Warrant is issued in exchange for a Warrant (the "Microgy Warrant") to
purchase _______________ shares of common stock of Microgy Cogeneration Systems,
Inc. ("Microgy"), previously issued by Microgy, which Microgy Warrant is of no
further force and effect.
THIS WARRANT AND THE COMMON STOCK RECEIVABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 ("THE ACT"), OR ANY STATE
SECURITIES LAWS. THEY MAY NOT BE TRANSFERRED OR OFFERED FOR SALE IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED.
VOID AFTER 5:00 P.M., EASTERN TIME, ON SEPTEMBER 30, 2002
WARRANT TO PURCHASE COMMON STOCK
ENVIRONMENTAL POWER CORPORATION
ORIGINAL ISSUE DATE: _______________, 2001
This is to Certify That, FOR VALUE RECEIVED, ______________ ("Holder")
is entitled to purchase, subject to the provisions of this Warrant, from
ENVIRONMENTAL POWER CORPORATION (the "Company"), at any time until 5:00 P.M.,
Eastern Time, on September 30, 2002 ("Expiration Date"), _________ shares of the
Company's Common Stock ("Shares"). The exercise price ("Exercise Price") of the
Warrant shall be $______ per Share (i.e. $1.00 for each 0.4873401 Shares of
Common Share). The number of Shares to be received upon the exercise of this
Warrant may be adjusted from time to time as hereinafter set forth.
(a) Exercise of Warrant. This Warrant may be exercised in whole or
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in part at any time or from time to time until the Expiration Date or if the
Expiration Date is a day on which banking institutions are authorized by law to
close, then on the next succeeding day which shall not be such a day, by
presentation and surrender hereof to the Company or at the office its stock
transfer agent, if any, with the Purchase Form annexed hereto as Exhibit A duly
executed and accompanied by payment of the Exercise Price for the number of
Shares specified in such Form, together with all federal and state taxes
applicable upon such exercise, in cash or by certified or official bank check
payable to the order of the Company.
The Company agrees not to merge, reorganize or take any action that
would terminate this Warrant unless provisions are made as part of such merger,
reorganization or other action which would provide the holders of this Warrant
with an equivalent of this Warrant as specified in
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Section (f)(3) hereof. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation, execute and
deliver a new Warrant evidencing the right of the Holder to purchase the balance
of the Shares purchasable hereunder. Upon receipt by the Company of this Warrant
at the office of the Company, in proper form for exercise and accompanied by the
Exercise Price, the Holder shall be deemed to be the holder of record of the
Shares issuable upon such exercise, notwithstanding that the stock transfer
books of the Company shall then be closed or that certificates representing such
Shares shall not then be actually delivered to the Holder.
(b) Reservation of Shares. The Company hereby agrees that at all
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times there shall be reserved for issuance and/or delivery upon exercise of this
Warrant such number of Shares as shall be required for issuance or delivery upon
exercise of this Warrant.
(c) Limit on Fractional Shares. No fractional Shares, shares or
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scrip representing fractional shares shall be issued upon the exercise of this
Warrant. The number of Shares issuable upon exercise of this Warrant involving
an aggregate Exercise Price of less than $1,000 shall be rounded to the next
lowest whole Share and the number of Shares issuable upon exercise of this
Warrant involving an aggregate exercise price of $1,000 or more shall be rounded
to the nearest Share.
(d) Exchange, Assignment or Loss of Warrant. This Warrant is
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exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company for other Warrants of different
denominations entitling the Holder thereof to purchase (under the same terms and
conditions as provided by this Warrant) in the aggregate the same number of
Shares purchasable hereunder. Subject to Sections (i) and (1), any transfer or
assignment shall be made by surrender of this Warrant to the Company with the
Assignment Form annexed hereto as Exhibit B duly executed and with funds
sufficient to pay any transfer tax; whereupon the Company shall, without charge,
execute and deliver a new Warrant in the name of the assignee named in such
instrument of assignment and this Warrant shall promptly be canceled. This
Warrant may be divided or combined with other Warrants which carry the same
rights upon presentation hereof at the office of the Company or at the office of
its stock transfer agent, if any, together with a written notice specifying the
names and denominations in which new Warrants are to be issued and signed by the
Holder hereof. The term "Warrant" as used herein includes any warrants issued in
substitution for or replacement of this Warrant, or into which this Warrant may
be divided or exchanged. Upon receipt by the Company of evidence satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant, and (in the
case of loss, theft or destruction) of reasonably satisfactory indemnification,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
will execute and deliver a new Warrant of like tenor and date. Subject to such
right of indemnification, any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at
any time enforceable by anyone.
(e) Rights of the Holder. The Holder shall not, by virtue hereof,
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be entitled to any rights of a shareholder in the Company, either at law or
equity, and the rights of the Holder are
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limited to those expressed in the Warrant and are not enforceable against the
Company except to the extent set forth herein.
(f) Adjustment Provisions. The Common Exercise Rate and the
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Additional Common Exercise Rate shall be subject to adjustment from time to time
as follows:
1. If, at any time after the Original Issue Date, the number
of shares of Common Stock outstanding is increased by a stock dividend payable
in shares of Common Stock or by a subdivision or split-up of shares of Common
Stock, then, following the record date for the determination of holders of
Common Stock entitled to receive such stock dividend, subdivision or split-up,
the Exercise Price shall be appropriately decreased so that the number of shares
of Common Stock issuable on exercise of the Warrants shall be increased in
proportion to such increase in outstanding shares.
2. If, at any time after the Original Issue Date, the number
of shares of Common Stock outstanding is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date for such
combination, the Exercise Price shall be appropriately increased so that the
number of shares of Common Stock issuable on exercise of the Warrants shall be
decreased in proportion to such decrease in outstanding shares.
3. In the event of any capital reorganization of the Company,
any reclassification of the stock of the Company (other than a change in par
value or from no par value to par value or from par value to no par value or as
a result of a stock dividend or subdivision, split-up or combination of shares),
any consolidation or merger of the Company, or any sale, lease, conveyance to
another person of the property of the Company pursuant to which the Company's
Common Stock is converted into other securities, cash or assets, each Warrant
shall after such reorganization, reclassification, consolidation, merger or
conveyance be exercisable into the kind and number of shares of stock or other
securities or property of the Company or of the Company resulting from such
consolidation or surviving such merger to which the holder of the number of
shares of Common Stock deliverable (immediately prior to the time of such
reorganization, reclassification, consolidation or merger) upon exercise of such
Warrant would have been entitled upon such reorganization, reclassification,
consolidation, merger or conveyance. The provisions of this clause shall
similarly apply to successive reorganizations, reclassifications,
consolidations, mergers or conveyances.
4. Upon any adjustment of the Exercise Price, the Holder of
this Warrant shall thereafter (until another such adjustment) be entitled to
purchase, at the new Exercise Price, the number of Shares, calculated to the
nearest full share, obtained by multiplying the number of shares of Shares
initially issuable upon exercise of this Warrant by the Exercise Price specified
in the first paragraph of this Warrant and dividing the product so obtained by
the new Exercise Price.
(g) Statement of Adjustment. Whenever a Conversion Rate shall
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be adjusted as provided in paragraph (f), the Company shall make available for
inspection by the Holder during regular business hours, at its principal
executive offices or at such other place as may be designated by the Company, a
statement, signed by its chief executive officer or president,
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showing in detail the facts requiring such adjustment and the Conversion Rate
that shall be in effect after such adjustment. The Company shall also cause a
copy of such statement to be sent by first class certified mail, return receipt
requested and postage prepaid, to Holder at such Holder's address appearing on
the Company's records.
(h) Notices. Unless otherwise provided herein, any notice,
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request, instruction or other document to be given hereunder by any party shall
be in writing and delivered in person or by courier or by facsimile transmission
(followed by mailing certified mail, postage prepaid, return receipt requested)
or mailed by certified mail, postage prepaid, return receipt requested, as
follows: (1) to the Holder at the Holder's address as it appears in the records
of the Company or at such other address as the Holder may otherwise indicate in
a written notice delivered to the Company or (2) to the Company, at 000 Xxxxxx
Xxxxxx, Xxxxx 0X, Xxxxxxxxxx, Xxx Xxxxxxxxx 00000, Telephone: (000) 000-0000,
Facsimile: (000) 000-0000, or at such other address as the Company may otherwise
indicate in a written notice delivered to Holder. All such notices, requests,
instructions, documents and other communications will (2) if delivered
personally to the address as provided in this Section (h), be deemed given upon
delivery, (2), if delivered by facsimile transmission to the facsimile number as
provided in this Section (h), be deemed given upon receipt, and (3) if delivered
by mail in the manner described above to the address as provided in this Section
(h), be deemed given upon receipt (in each case regardless of whether such
notice is received by any other Person to whom a copy of such communication is
to be delivered pursuant to this Section (h).
(i) Transfer to Comply with the Securities Act of 1933. The
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Company may cause the following legend, or one similar thereto, to be set forth
on each certificate representing the Shares or any other security issued or
issuable upon exercise of this Warrant not theretofore distributed to the public
or sold to underwriters for distribution to the public pursuant to Section (i)
hereof; unless legal counsel for the Company is of the opinion as to any such
certificate that such legend, or one similar thereto, is unnecessary:
The securities represented by this certificate may not be offered for
sale, sold or otherwise transferred except pursuant to an effective
registration statement made under the Securities Act of 1933 (the
"Act") and under any applicable state securities law, or pursuant to an
exemption from registration under the Act and under any applicable
state securities law, the availability of which is to be established to
the satisfaction of the Company.
The Holder(s) agree that this Warrant and all Shares acquired upon
exercise hereof will be disposed of only in accordance with the Act and the
rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
(j) Exemption from Registration for Warrant Exercise.
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The Company and the Holder acknowledge that the Company will be relying
on an exemption from the registration requirements of the Securities Act of
1933, as amended (the "Act"), to deliver Shares to the Holder(s) upon the
exercise of the Warrant. The Holder agrees to
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provide the Company with such information and representations as may be
requested by the Company in order to establish a claim to an exemption from the
registration requirements of the Act, and any applicable state securities laws,
including, a representation that the Holder(s) are taking the Shares for
investment, and not with a view to distribution.
(k) Applicable Law. This Warrant shall be governed by, and
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construed in accordance with, the laws of the state of New York.
(l) Transfer and Assignment. This Warrant may not be
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transferred or assigned, in whole or in part, without the written consent of the
Company, which shall not be unreasonably withheld. Neither this Warrant nor any
Shares issued upon the exercise hereof shall be transferred other than pursuant
to an effective registration statement under the Securities Act or an exemption
from the registration provisions thereof. Each certificate, if any, evidencing
such shares of restricted stock issued upon any such transfer other than in a
public offering pursuant to an effective registration statement shall bear the
restrictive legend set forth in Section (i), and each Warrant issued upon such
assignment or transfer shall bear the restrictive legend set forth in this
Warrant, unless in the opinion of counsel delivered at the request of the
Holder, which opinion shall be reasonably acceptable to the Company, such legend
is not required for the purposes of compliance with the Act.
(m) Successors and Assigns. The rights evidenced hereby
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shall inure to the benefit of and be binding upon the successors of the Company
and the successors and assigns of the Holder hereof. The provisions of this
Warrant are intended to be for the benefit of all Holders from time to time of
this Warrant and shall be enforceable by any such Holder.
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(n) Amendment. This Warrant and all other Warrants may not
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be modified or amended or the provisions hereof waived except by the written
consent of the Company and the Holder(s).
ENVIRONMENTAL POWER CORPORATION
By: ______________________________
Name:
Title:
Agreed and Accepted:
_________________________
Holder:
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EXHIBIT A
PURCHASE FORM
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Dated:_____________, 200 __
The undersigned hereby irrevocably elects to exercise the Warrant to
the extent of purchasing ______________ Common Shares of Environmental Power
Corporation, and hereby makes payment of $_____________ in payment of the actual
Exercise Price thereof.
INSTRUCTIONS FOR REGISTRATION OF SHARES
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Name: _____________________________________________________________________
(Please typewrite or print in block letters)
Address: __________________________________________________________________
Signature: __________________________________________________________________
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EXHIBIT B
ASSIGNMENT FORM
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Dated:_____________, 200__
FOR VALUE RECEIVED, _____________________________________________
hereby sells, assigns and transfers unto
Name: __________________________________________________________________
(Please typewrite or print in block letters)
Address: ________________________________________________________________
the right to purchase Shares represented by this Warrant to the extent
of _______________ Shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint __________________, attorney, to transfer the
same on the books of the Company with full power of substitution in the
premises.
Signature: _________________________
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