WARRANT AGREEMENT BY AND BETWEEN HORIZON TECHNOLOGY FINANCE CORPORATION AND
EXHIBIT d(6)
BY AND BETWEEN
AND
[_______________]
This Warrant Agreement (this “Agreement”) is made as of [_______], 20[__] between HORIZON
TECHNOLOGY FINANCE CORPORATION, a Delaware corporation (“Company”), and [_______________], a
[__________], (“Warrant Agent”).
WHEREAS, the Company is engaged in a public offering (“Public Offering”) of warrants (the
“Warrants”) to public investors, each of such Warrants evidencing the right of the holder thereof
to purchase [shares of common stock/shares of preferred stock/debt securities] (“Securities”), for
$[____], subject to adjustment as described herein; and
WHEREAS, the Company has filed with the Securities and Exchange Commission a Registration
Statement on Form N-2, No. 333-[_____] (“Registration Statement”), for the registration, under the
Securities Act of 1933, as amended (“Act”), of, among other securities, the Warrants and Securities
issuable upon exercise of the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing to so act, in connection with the issuance, registration, transfer,
exchange, redemption and exercise of the Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms
upon which they shall be issued and exercised and the respective rights, limitation of rights and
immunities of the Company, the Warrant Agent and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the
Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant
Agent, as provided herein, the valid, binding and legal obligations of the Company, and to
authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent
to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such
appointment and agrees to perform the same in accordance with the terms and conditions set forth in
this Agreement.
2. Warrants.
2.1. Form of Warrant. Each Warrant shall be issued to its holder in
registered form, and each such holder’s Warrants shall be represented by a certificate (a “Warrant
Certificate”) in substantially the form of Exhibit A hereto, the provisions of which are
incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the
Board, Chief Executive Officer, Treasurer or the Secretary of the Company. In the event the person
whose facsimile signature has been placed upon any Warrant Certificate shall have ceased to serve
in the capacity in which such person signed the Warrant before such
Warrant is issued, it may be issued with the same effect as if he or she had not ceased to
hold such office at the date of issuance.
2.2. Effect of Countersignature. Unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not
be exercised by the holder thereof.
2.3. Registration.
2.3.1. Warrant Register. The Warrant Agent shall maintain books (“Warrant
Register”), for the registration of original issuance and the registration of transfer of the
Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective holders thereof in such denominations and otherwise in
accordance with instructions delivered to the Warrant Agent by the Company.
2.3.2. Registered Holder. Prior to due presentment for registration of
transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose
name such Warrant shall be registered upon the Warrant Register (“registered holder”) as the
absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any
notation of ownership or other writing on the Warrant Certificate made by anyone other than the
Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes,
and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
3. Terms and Exercise of Warrants.
3.1. Warrant Price. Each Warrant shall, when countersigned by the Warrant
Agent, entitle the registered holder thereof, subject to the provisions of such Warrant and of this
Agreement, to purchase from the Company the number of Securities stated therein, at the price of
$[____], subject to the adjustments provided in Section 4 hereof and in the last sentence of this
Section 3.1 (“Warrant Price”) The Company in its sole discretion may lower the Warrant Price at any
time prior to the Expiration Date for a period of not less than ten (10) business days.
3.2. Duration of Warrants. A Warrant may be exercised only during the
period (“Exercise Period”) commencing on [_______], 20[__], and terminating at 5:00 p.m., New York
City time on the date fixed for redemption of the Warrants as provided in Section 6 of this
Agreement (“Expiration Date”). Except with respect to the right to receive the Redemption Price
(as set forth in Section 6 hereunder), each Warrant not exercised on or before the Expiration Date
shall become void, and all rights thereunder and all rights in respect thereof under this Agreement
shall cease at the close of business on the Expiration Date. The Company in its sole discretion
may extend the duration of the Warrants by delaying the Expiration Date; provided, that the Company
shall provide notice to registered holders of the Warrants of any such extension of twenty (20)
days or more.
3.3. Exercise of Warrants.
3.3.1. Payment. Subject to the provisions of the Warrant Certificate and
this Agreement, a Warrant may be exercised by the registered holder thereof by surrendering the
Warrant Certificate, countersigned by the Warrant Agent, at the office of the Warrant Agent, or, if
applicable, at the office of its successor as Warrant Agent with the subscription form, as set
forth in the Warrant Certificate, duly executed, and by paying in full the Warrant Price for
Securities as to which the Warrant is exercised and any and all applicable taxes due in connection
with the exercise of the Warrant, the exchange of the Warrant for Securities, and the issuance of
Securities, as follows:
- 2 -
a. in cash;
b. by certified or official bank check payable to the order of the Company;
3.3.2. Issuance of Certificates. As soon as practicable after the exercise
of any Warrants and the clearance of the funds in payment of the Warrant Price, the Company shall
issue to the registered holder of such Warrants in book entry form the number of Securities to
which such holder is entitled, registered in such name or names as may be directed by him, her or
it, and if the holder of such Warrants shall not have exercised all Warrants held by such holder, a
new countersigned Warrant Certificate will be issued for the remaining Warrants. Notwithstanding
the foregoing, the Company shall not be obligated to deliver any Securities pursuant to the
exercise of a Warrant and shall have no obligation to settle such exercise of a Warrant unless a
registration statement under the Act with respect to Securities underlying such Warrant is
effective. In the event that a registration statement with respect to Securities underlying such
Warrant is not effective under the Act, the holder of such Warrant shall not be entitled to
exercise such Warrant and such Warrant may have no value and expire worthless. In no event shall
the Company be required to net cash settle the exercise of a Warrant. Warrants may not be
exercised by, or Securities issued to, any registered holder in any state in which such exercise
would be unlawful.
3.3.3. Valid Issuance. All [equity/debt Securities issued upon the proper
exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and
nonassessable/the valid, binding and legal obligation of the Company enforceable against the
Company in accordance with their terms, subject to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers, preferences
or similar laws), reorganization, moratorium similar laws or other now and hereafter in effect
relating to or affecting enforcement of creditors’ rights generally, any fraudulent transfer,
preference or similar law, general principles of equity and the discretion of the court or other
body before which any proceeding therefor may be brought and the unenforceability under certain
circumstances under law or court decisions of provisions providing for the indemnification of, or
contribution to, a party with respect to a liability where such indemnification or contribution is
contrary to public policy].
3.3.4. Date of Issuance. Each person in whose name any such certificate for
Securities is issued shall be deemed for all purposes to have become the holder of record of such
Securities on the date on which the Warrant was surrendered and payment of the Warrant Price was
made; provided, however, that, if the date of such surrender and payment is a date when the
transfer books of the Company are closed, such person shall be deemed to have become the holder of
such Securities at the close of business on the next succeeding date on which such transfer books
are open.
4. Adjustments.
4.1. Dividends — Split-Ups. If after the date hereof, and subject to the
provisions of Section 4.6 below, the number of outstanding Securities is increased by a dividend
payable in Securities, by a split of Securities, or by any other similar event, then, on the
effective date of such dividend, split-up or similar event, the number of Securities issuable on
exercise of each Warrant shall be increased in proportion to such increase in outstanding
Securities.
4.2. Aggregation of Securities. If after the date hereof, and subject to
the provisions of Section 4.6, the number of outstanding Securities is decreased by a
consolidation, combination, reverse split or reclassification of Securities or any other similar
event, then, on the effective date of such consolidation, combination, reverse split,
reclassification or similar event, the number of Securities
- 3 -
issuable on exercise of each Warrant shall be decreased in proportion to such decrease in
outstanding Securities.
4.3. Adjustments in Exercise Price. Whenever the number of Securities
purchasable upon the exercise of the Warrants is adjusted, as provided in Section 4.1 and 4.2
above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price
immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number
of Securities purchasable upon the exercise of the Warrants immediately prior to such adjustment,
and (y) the denominator of which shall be the number of Securities so purchasable immediately
thereafter.
4.4. Replacement of Securities upon Reorganization, etc. In case of any
reclassification or reorganization of the outstanding Securities (other than a change covered by
Section 4.1 or 4.2 hereof or that solely affects the par value, if any, of such Securities), or in
the case of any merger or consolidation of the Company with or into another corporation (other than
a consolidation or merger in which the Company is the continuing corporation and that does not
result in any reclassification or reorganization of the outstanding Securities), or in the case of
any sale or conveyance to another corporation or entity of the assets or other property of the
Company as an entirety or substantially as an entirety in connection with which the Company is
dissolved, the Warrant holders shall thereafter have the right to purchase and receive, upon the
basis and upon the terms and conditions specified in the Warrants and in lieu of Securities
immediately theretofore purchasable and receivable upon the exercise of the rights represented
thereby, the kind and amount of Securities or property (including cash) receivable upon such
reclassification, reorganization, merger or consolidation, or upon a dissolution following any such
sale or transfer, that the Warrant holder would have received if such Warrant holder had exercised
his, her or its Warrant(s) immediately prior to such event; and if any reclassification also
results in a change in Securities covered by Section 4.1 or 4.2, then such adjustment shall be made
pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions of this Section 4.4 shall
similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales
or other transfers.
4.5. Notices of Changes in Warrant. Upon every adjustment of the Warrant
Price or the number of Securities issuable upon exercise of a Warrant, the Company shall give
written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting
from such adjustment and the increase or decrease, if any, in the number of Securities purchasable
at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. Upon the occurrence of any event
specified in Sections 4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company shall give written
notice to each Warrant holder, at the last address set forth for such holder in the Warrant
Register, of the record date or the effective date of the event. Failure to give such notice, or
any defect therein, shall not affect the legality or validity of such event.
4.6. No Fractional Securities. Notwithstanding any provision contained in
this Agreement to the contrary, the Company shall not issue fractional Securities upon exercise of
Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any
Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a
Security, the Company shall, upon such exercise, round up or down to the nearest whole number the
number of Securities to be issued to the Warrant holder.
4.7. Form of Warrant Certificate. The form of Warrant Certificate need not
be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such
adjustment may state the same Warrant Price and the same number of Securities as is stated in the
Warrants initially issued pursuant to this Agreement. However, the Company may at any time in its
sole discretion make any change in the form of Warrant Certificate that the Company may deem
appropriate and that does not affect the substance thereof, and any Warrant Certificate thereafter
issued or countersigned, whether in
- 4 -
exchange or substitution for an outstanding Warrant Certificate or otherwise, may be in the
form as so changed.
5. Transfer and Exchange of Warrants.
5.1. Registration of Transfer. The Warrant Agent shall register the
transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender
of the Warrant Certificate representing such Warrant, for transfer, properly endorsed with
signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any
such transfer, a new Warrant Certificate representing an equal aggregate number of Warrants shall
be issued and the old Warrant Certificate shall be cancelled by the Warrant Agent. The Warrants so
cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.
5.2. Procedure for Surrender of Warrant Certificates. Warrant Certificates
may be surrendered to the Warrant Agent, together with a written request for exchange or transfer,
and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrant
Certificates as requested by the registered holder of the Warrants so surrendered, representing an
equal aggregate number of Warrants represented by such Warrant Certificate; provided, however, that
in the event that a Warrant Certificate surrendered for transfer bears a restrictive legend, the
Warrant Agent shall not cancel such Warrant Certificate and issue new Warrant Certificate(s) in
exchange therefor until the Warrant Agent has received an opinion of counsel for the Company
stating that such transfer may be made and indicating whether the new Warrant Certificate(s) must
also bear a restrictive legend.
5.3. Fractional Warrants. The Warrant Agent shall not be required to effect
any registration of transfer or exchange which would result in the issuance of a warrant
certificate for a fraction of a Warrant.
5.4. Service Charges. No service charge shall be made for any registration
of transfer or exchange of Warrants.
5.5. Warrant Execution and Countersignature. The Warrant Agent is hereby
authorized to countersign and to deliver, in accordance with the terms of this Agreement, the
Warrant Certificates required to be issued pursuant to the provisions of this Section 5, and the
Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrant
Certificates duly executed on behalf of the Company for such purpose.
6. Redemption.
6.1. Redemption. Not less than all of the outstanding Warrants may be
redeemed, at the option of the Company, at any time while they are exercisable and prior to their
expiration, at the office of the Warrant Agent, upon the notice referred to in Section 6.2, at the
price of $0.001 per Warrant (“Redemption Price”), provided that [describe redemption criteria].
6.2. Date Fixed for, and Notice of, Redemption. In the event the Company
shall elect to redeem all of the Warrants, the Company shall fix a date for the redemption. Notice
of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than
thirty (30) days prior to the date fixed for redemption to the registered holders of the Warrants
to be redeemed at their last addresses as they shall appear on the Warrant Register. Any notice
mailed in the manner herein provided shall be conclusively presumed to have been duly given whether
or not the registered holder received such notice.
- 5 -
6.3. Exercise After Notice of Redemption. The Warrants may be exercised in
accordance with Section 3.3.1 of this Agreement at any time after notice of redemption shall have
been given by the Company pursuant to Section 6.2 hereof and prior to the time and date fixed for
redemption. On and after the redemption date, the record holder of the Warrants shall have no
further rights except to receive, upon surrender of the Warrants, the Redemption Price.
7. Other Provisions Relating to Rights of Warrant Holders.
7.1. No Rights as Stockholder or Debt Holder. A Warrant does not entitle
the registered holder thereof to any of the rights of a stockholder or debt holder of the Company,
including, without limitation, the right to receive dividends, or other distributions, exercise any
preemptive rights to vote or to consent or to receive notice as stockholders in respect of the
meetings of stockholders or the election of directors of the Company or any other matter.
7.2. Lost, Stolen, Mutilated or Destroyed Warrants. If any Warrant
Certificate is lost, stolen, mutilated or destroyed, the Company and the Warrant Agent may on such
terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case
of a mutilated Warrant, include the surrender thereof), issue a new Warrant Certificate of like
denomination, tenor and date as the Warrant Certificate so lost, stolen, mutilated or destroyed.
Any such new Warrant Certificate shall constitute a substitute contractual obligation of the
Company, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant Certificate
shall be at any time enforceable by anyone.
7.3. Reservation of Securities. The Company shall at all times reserve and
keep available a number of its authorized but unissued Securities that will be sufficient to permit
the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
8. Concerning the Warrant Agent and Other Matters.
8.1. Payment of Taxes. The Company shall from time to time promptly pay all
taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the
issuance or delivery of Securities upon the exercise of Warrants, but the Company shall not be
obligated to pay any transfer taxes in respect of the Warrants or such Securities.
8.2. Resignation, Consolidation or Merger of Warrant Agent.
8.2.1. Appointment of Successor Warrant Agent. The Warrant Agent, or any
successor to it hereafter appointed, may resign its duties and be discharged from all further
duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company.
If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise,
the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If
the Company shall fail to make such appointment within a period of thirty (30) days after it has
been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of
the Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then
the holder of any Warrant may apply to the [Supreme Court of the State of New York for the County
of New York] for the appointment of a successor Warrant Agent at the Company’s cost. Any successor
Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized
and existing under the laws of the State of [New York], in good standing and having its principal
office in the [Borough of Manhattan, The City and State of New York], and authorized under such
laws to exercise corporate trust powers and subject to supervision or examination by federal or
state authority. After appointment, any successor Warrant Agent shall be vested with all the
authority, powers, rights, immunities, duties and obligations of its predecessor Warrant
- 6 -
Agent with like effect as if originally named as Warrant Agent hereunder, without any further
act or deed. If for any reason it becomes necessary or appropriate, the predecessor Warrant Agent
shall execute and deliver, at the expense of the Company, an instrument transferring to such
successor Warrant Agent all the authority, powers and rights of such predecessor Warrant Agent
hereunder; and upon request of any successor Warrant Agent, the Company shall make, execute,
acknowledge and deliver any and all instruments in writing for more fully and effectually vesting
in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities,
duties and obligations.
8.2.2. Notice of Successor Warrant Agent. In the event a successor Warrant
Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent
and the transfer agent for the Securities not later than the effective date of any such
appointment.
8.2.3. Merger or Consolidation 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 shall be the successor
Warrant Agent under this Agreement without any further act.
8.3. Fees and Expenses of Warrant Agent.
8.3.1. Remuneration. The Company agrees to pay the Warrant Agent reasonable
remuneration for its services as such Warrant Agent hereunder and shall reimburse the Warrant Agent
upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of
its duties hereunder.
8.3.2. Further Assurances. The Company agrees to perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this Agreement.
8.4. Liability of Warrant Agent.
8.4.1. Reliance on Company Statement. 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 statement signed by the
Chief Executive Officer, Chief Financial Officer or Chairman of the Board of the Company and
delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action
taken or suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2. Indemnity. The Warrant Agent shall be liable hereunder only for its
own negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
and save it harmless against any and all liabilities, including judgments, costs and reasonable
counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement
except as a result of the Warrant Agent’s negligence, willful misconduct or bad faith.
8.4.3. Exclusions. The Warrant Agent shall have no responsibility with
respect to the validity of this Agreement or with respect to the validity or execution of any
Warrant (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; nor shall it be
responsible to make any adjustments required under the provisions of Section 4 hereof or
responsible for the manner, method or
- 7 -
amount of any such adjustment or the ascertaining of the existence of facts that would require
any such adjustment; nor shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Securities to be issued pursuant to this
Agreement or any Warrant or as to whether any Securities will when issued be [valid, fully paid and
nonassessable/the valid, binding and legal obligation of the Company enforceable against the
Company in accordance with their terms, subject to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers, preferences
or similar laws), reorganization, moratorium similar laws or other now and hereafter in effect
relating to or affecting enforcement of creditors’ rights generally, any fraudulent transfer,
preference or similar law, general principles of equity and the discretion of the court or other
body before which any proceeding therefor may be brought and the unenforceability under certain
circumstances under law or court decisions of provisions providing for the indemnification of, or
contribution to, a party with respect to a liability where such indemnification or contribution is
contrary to public policy].
8.5. Acceptance of Agency. The Warrant Agent hereby accepts the agency
established by this Agreement and agrees to perform the same upon the terms and conditions herein
set forth and, among other things, shall account promptly to the Company with respect to Warrants
exercised and concurrently account for, and pay to the Company, all moneys received by the Warrant
Agent for the purchase of Securities through the exercise of Warrants.
9. Miscellaneous Provisions.
9.1. 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.
9.2. Notices. Any notice, statement or demand authorized by this Agreement
to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall
be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified
mail or private courier service within five (5) days after deposit of such notice, postage prepaid,
addressed (until another address is filed in writing by the Company with the Warrant Agent), as
follows:
Horizon Technology Finance Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Chief Financial Officer
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Chief Financial Officer
with a copy (which shall not constitute notice) to:
Squire, Xxxxxxx & Xxxxxxx (US) LLP
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxx
Any notice, statement or demand authorized by this Agreement to be given or made by the holder of
any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so
delivered if by hand or overnight delivery or if sent by certified mail or private courier service
within five (5) days after deposit of such notice, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company), as follows:
- 8 -
[WARRANT AGENT]
[_________________________]
[_________________________]
[_________________________]
[_________________________]
with a copy (which shall not constitute notice) to:
[WARRANT AGENT’S COUNSEL]
[_________________________]
[_________________________]
[_________________________]
[_________________________]
9.3. Applicable Law. The validity, interpretation, and performance of this
Agreement and of the Warrants shall be governed in all respects by the laws of the State of New
York. The Company hereby agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the courts of the State of
New York or the United States District Court for the Southern District of New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any
objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any
such process or summons to be served upon the Company may be served by transmitting a copy thereof
by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the
address set forth in Section 9.2 hereof. Such mailing shall be deemed personal service and shall
be legal and binding upon the Company in any action, proceeding or claim.
9.4. Persons Having Rights under this Agreement. Nothing in this Agreement
expressed and nothing that may be implied from any of the provisions hereof is intended, or shall
be construed, to confer upon, or give to, any person or corporation other than the parties hereto
and the registered holders of the Warrants, any right, remedy, or claim under or by reason of this
Agreement or of any covenant, condition, stipulation, promise or agreement hereof. All covenants,
conditions, stipulations, promises and agreements contained in this Agreement shall be for the sole
and exclusive benefit of the parties hereto and their successors and assigns and of the registered
holders of the Warrants.
9.5. Examination of this Agreement. A copy of this Agreement shall be
available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan,
The City and State of New York, for inspection by the registered holder of any Warrant. The
Warrant Agent may require any such holder to submit his Warrant for inspection by it.
9.6. Counterparts. This Agreement may be executed in any number of original
or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the same instrument.
9.7. Effect of Headings. The Section headings herein are for convenience
only and are not part of this Agreement and shall not affect the interpretation thereof.
9.8. Amendments. This Agreement may be amended by the parties hereto
without the consent of any registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding or changing any
other provisions with respect to matters or questions arising under this Agreement as the parties
may deem necessary or desirable and that the parties deem shall not to materially and adversely
affect the interest of the registered holders. All other modifications or amendments, including
any amendment to increase the Warrant Price or shorten the Exercise Period, shall require the
written consent of the registered holders of a majority of the then outstanding Warrants.
Notwithstanding the foregoing, the Company may lower the
- 9 -
Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2,
respectively, without the consent of the registered holders.
9.9. This Agreement does not constitute an agreement for a partnership or joint
venture among the parties. The Warrant Agent shall act hereunder as agent of the Company solely to
the limited extent set forth in this Agreement, but shall not assume any fiduciary duties to, or
have any rights, power or authority on behalf of, the Company or any of its affiliates, equity
holders or creditors or of any other person or entity not expressly set forth in this Agreement.
Any duties of the Warrant Agent arising out of its engagements pursuant to this Agreement shall be
owed solely to the Company. No party shall make any commitments with third parties that are
binding on any other party without such other party’s prior written consent, and none of the
Warrant Agent, employees, or representatives or contractors of the Warrant Agent shall be deemed to
be employees of the Company or any of its affiliates.
9.10. Except as explicitly stated elsewhere in this Agreement, nothing under this
Agreement is intended or shall be construed to give any rights, benefits, remedies or claims under
or by reason of this Agreement or any part thereof to anyone other than the Warrant Agent and the
Company, and the duties and responsibilities undertaken pursuant to this Agreement shall be for the
sole and exclusive benefit of the Warrant Agent and the Company.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day
and year first-above written.
| HORIZON TECHNOLOGY FINANCE CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [WARRANT AGENT] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
- 10 -
EXHIBIT A
Form of Warrant Certificate
A-1
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER DESCRIBED BELOW
RESTRICTIONS ON TRANSFER DESCRIBED BELOW
[Form of Face of Warrant Certificate]
| No. W-[__] | [__] Warrants |
VOID AFTER 5:00 p.m. NEW YORK CITY TIME on [__________], 20[__]
WARRANT CERTIFICATE FOR PURCHASE OF [SECURITIES] OF
THIS CERTIFIES THAT, for value received, [_______________] or registered assigns (the
“Registered Holder”) is the owner of the number of warrants (the “Warrants”) specified above. Each
Warrant initially entitles the Registered Holder to purchase, subject to the terms and conditions
set forth in this certificate (this “Warrant Certificate”) and the Warrant Agreement (as
hereinafter defined), [shares of common stock/shares of preferred stock/debt securities]
(“Securities”), of HORIZON TECHNOLOGY FINANCE CORPORATION, a Delaware corporation (the “Company”),
at any time during the Exercise Period (as hereinafter defined), upon the presentation and
surrender of this Warrant Certificate with the Subscription Form on the reverse hereof duly
executed, at the corporate office of as Warrant Agent, or its successor (the “Warrant Agent”),
accompanied by payment of $[____] (the “Purchase Price”) in lawful money of the United States of
America in cash or by official bank or certified check made payable to the Company.
This Warrant Certificate and each Warrant represented hereby are issued pursuant to and are
subject in all respects to the terms and conditions set forth in the Warrant Agreement (the
“Warrant Agreement”) dated [_______], 20[__] by and between the Company and the Warrant Agent. The
board of directors of the Company retains the right to amend the Warrant Agreement in its
discretion, subject to certain restrictions set forth in the Warrant Agreement.
In the event of certain contingencies provided for in the Warrant Agreement, the Purchase
Price or the number of Securities subject to purchase upon the exercise of each Warrant represented
hereby are subject to modifications or adjustment.
Each Warrant represented hereby is exercisable at the option of the Registered Holder, but no
fractional Securities will be issued. However, if the Registered Holder exercises all the Warrants
then owned by the Registered Holder, the Company shall pay to such Registered Holder in lieu of the
issuance of any fractional Securities otherwise payable, an amount in cash based on the market
value of the Securities on the last trading day prior to the date of exercise of the Warrants. In
the case of the exercise of less than all the Warrants represented hereby, the Company shall cancel
this Warrant Certificate upon the surrender hereof and shall execute and deliver a new Warrant
Certificate or Warrant Certificates of like tenor, which the Warrant Agent shall countersign, for
the balance of such Warrants.
The term “Exercise Period” shall mean the period commencing on [__________], 20[__], and
terminating at 5:00 p.m., New York City time on the date fixed for redemption of the Warrants as
provided in Section 6 of the Warrant Agreement.
The Company shall not be obligated to deliver any Securities pursuant to the exercise of this
Warrant Certificate unless a registration statement under the Securities Act of 1933, as amended,
with
A-2
respect to such securities is then effective. This Warrant Certificate shall not be
exercisable by a Registered Holder in any state where such exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof by the Registered Holder
at the corporate office of the Warrant Agent, for a new Warrant Certificate or Warrant Certificates
of like tenor representing an equal aggregate number of Warrants, each of such new Warrant
Certificates to represent such number of Warrants as shall be designated by such Registered Holder
at the time of such surrender.
Prior to due presentment for registration of transfer of any Warrant represented hereby, the
Registered Holder shall not be entitled to any rights of a stockholder or debt holder of the
Company, including, without limitation, the right to vote or to receive dividends or other
distributions, and shall not be entitled to receive any notice of any proceedings of the Company,
except as provided in the Warrant Agreement.
Prior to due presentment for registration of transfer of any Warrant, the Company and the
Warrant Agent may deem and treat the Registered Holder as the absolute owner of this Warrant
Certificate and of each Warrant represented hereby (notwithstanding any notations of ownership or
writing hereon made by anyone other than a duly authorized officer of the Company or the Warrant
Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
This Warrant Certificate shall be governed by and construed in accordance with the laws of the
State of New York.
This Warrant Certificate is not valid unless countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed,
manually or in facsimile by its officer thereunto duly authorized and a facsimile of its corporate
seal to be imprinted hereon.
| HORIZON TECHNOLOGY FINANCE CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Dated:
| [Seal] | ||||
| COUNTERSIGNED: [_______________] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
A-3
[Form of Reverse of Warrant Certificate]
NOTICE OF ELECTION TO EXERCISE
To Be Executed by the Registered Holder
in Order to Exercise Warrants
in Order to Exercise Warrants
THE UNDERSIGNED REGISTERED HOLDER hereby irrevocably elects to exercise [__] Warrants
represented by this Warrant Certificate, and to purchase Securities issuable upon the exercise of
such Warrants, and requests that certificates for such Securities shall be issued in the name of
[insert name and social security number/other identifying number] and be deliverable to:
[_________________________]
[_________________________]
[_________________________]
and if such number of Warrants shall not be all the Warrants evidenced by this Warrant Certificate,
the balance of such Warrants be registered in the name of, and delivered to, the Registered Holder
at the address stated below.
The undersigned represents that the exercise of the Warrants evidenced hereby was solicited by
a member of the Financial Industry Regulatory Authority (“FINRA”). If not solicited by a FINRA
member, please write “unsolicited” in the space below. Unless otherwise indicated by listing the
name of another FINRA member firm, it will be assumed that the exercise was solicited by
[__________].
[_________________________]
(Name of FINFRA Member)
(Name of FINFRA Member)
[_________________________]
[_________________________]
Dated: [___________________]
[_________________________]
(Address)
(Address)
[_________________________]
(Taxpayer Identification Number)
(Taxpayer Identification Number)
[_________________________]
(Signature Guaranteed)
(Signature Guaranteed)
ASSIGNMENT
To Be Executed by the Registered Holder in Order to Assign Warrants
For value received (and, for any transfers prior to 5:00 p.m. New York City time) on
[_______], 20[__], [_______________] hereby sells, assigns, and transfers unto:
[insert name and social security/other identifying number]]
[_________________________]
[_________________________]
A-4
of the Warrants represented by this Warrant Certificate, and hereby irrevocably constitutes
and appoints the Warrant Agent to transfer this Warrant Certificate on the books of the Company,
with full power and substitution in the premises.
Dated:[_______], 20[__]
|
________________________________________ | |
| Signature Guaranteed |
THE SIGNATURE TO THE ASSIGNMENT OR SUBSCRIPTION FORM MUST CORRESPOND TO THE NAME AS
WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION (AS DEFINED
IN RULE 17ad-15 UNDER THE SECURITES EXCHANGE ACT OF 1934) WHICH MAY INCLUDE A COMMERCIAL BANK OR
TRUST COMPANY, SAVINGS ASSOCIATION, CREDIT UNION OR A MEMBER FIRM OF THE AMERICAN STOCK EXCHANGE,
NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR MIDWEST STOCK EXCHANGE.
A-5
