Exhibit 10.37
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
October 21, 1999
36,000 shares Warrant No. 1
SATCON TECHNOLOGY CORPORATION
STOCK PURCHASE WARRANT
Registered Owner: Mechanical Technology Incorporated
This certifies that, for value received, SatCon Technology Corporation, a
Delaware corporation, the ("Company") grants the following rights to the
Registered Owner, or assigns, of this Warrant:
1. Issue. Upon tender (in accordance with Section 5 hereof) to the Company, the
Company, within three (3) Business Days of the date thereof, shall issue to the
Registered Owner, or assigns, up to the number of shares specified in Section 2
hereof of fully paid and nonassessable shares of Common Stock that the
Registered Owner, or assigns, is otherwise entitled to purchase.
2. Number of Shares. The total number of shares of Common Stock that the
Registered Owner, or assigns, of this Warrant is entitled to receive upon
exercise of this Warrant (the "Warrant Shares") is 36,000 shares, subject to
adjustment from time to time as to the number and kind of securities for which
this Warrant is exercisable, all as set forth in Section 6 hereof. The Company
shall at all times reserve and hold available out of its authorized and
unissued shares of Common Stock or other securities, as the case may be,
sufficient shares of Common Stock to satisfy all conversion and purchase rights
represented by outstanding convertible securities, options and warrants,
including this Warrant. The Company covenants and agrees that all shares of
Common Stock or other securities, as the case may be, that may be issued upon
the exercise of this Warrant shall, upon issuance, be duly and validly issued,
fully paid and nonassessable, free from all taxes, liens and charges with
respect to the purchase and the issuance of the shares, and shall not have any
legend or restrictions on resale, expect as required by Section 3.13 of the
Purchase Agreement.
3. Exercise Price. The per share exercise price of this Warrant, representing
the price per share at which the shares of stock issuable upon exercise of this
Warrant may be purchased, is $8.80, subject to adjustment from time to time
pursuant to the provisions of Section 6 hereof (the "Exercise Price").
4. Exercise Period. This Warrant may be exercised from the Closing Date (as
defined in the Purchase Agreement) up to and including October 13, 2003 (the
"Exercise Period"). If not exercised during this period, this Warrant and all
rights granted under this Warrant shall expire and lapse.
5. Tender; Issuance of Certificates.
a. Subject to Section 15 hereof, this Warrant may be exercised, in whole or in
part, by (i) actual delivery of (a) the Exercise Price in cash, (b) a duly
executed Warrant Exercise Form, a copy of which is attached to this Warrant as
Exhibit A, properly executed by the Registered Owner, or assigns, of this
Warrant, and (c) by surrender of this Warrant. The Warrant Shares so purchased
shall be deemed to be issued to the Registered Owner as of the close of
business on the date (the "Exercise Date") on which the last of the following
shall have occurred: (i) this Warrant shall have been surrendered and (ii) the
completed Warrant Exercise Form shall have been delivered and payment shall
have been made for such shares as set forth above. The payment and Warrant
Exercise Form must be delivered to the registered office of the Company either
in person or as set for in Section 11 hereof.
b. In lieu of physical delivery of the Warrant, provided the Company's transfer
agent is participating in the Depositary Trust Company's ("DTC") Fast Automated
Securities Transfer ("FAST") program, upon request of the Registered Owner and
in compliance with the provisions hereof, the Company shall use its best
efforts to cause its transfer agent to electronically transmit the Warrant
Shares to the Registered Owner by crediting the account of the Registered
Owner's Prime Broker with DTC through its Deposit Withdrawal Agent Commission
system. The time period for delivery described herein shall apply to the
electronic transmittals described herein.
c. Certificates for the Warrant Shares so purchased, representing the aggregate
number of shares specified in the Warrant Exercise Form, and any cash payments
due under Section 13 hereof shall be delivered to the Registered Owner within a
reasonable time, not exceeding three (3) Business Days, after this Warrant
shall have been so exercised. The certificates so delivered shall be in such
denominations as may be requested by the Registered Owner and shall be
registered in the name of the Registered Owner or such other name as shall be
designated by such Registered Owner. If this Warrant shall have been exercised
only in part, then, unless this Warrant has expired, the Company shall, at its
expense, at the time of delivery of such certificates, deliver to the
Registered Owner a new Warrant representing the number of shares with respect
to which this Warrant shall not then have been exercised.
6. Adjustment of Exercise Price.
a. Common Stock Dividends; Common Stock Splits; Reverse Common Stock Splits. If
the Company, at any time while this Warrant is outstanding, (a) shall pay a
stock dividend on its Common Stock, (b) subdivide outstanding shares of Common
Stock into a larger number of shares, (c) combine outstanding shares of Common
Stock into a smaller number of shares or (d) issue by reclassification of
shares of Common Stock any shares of capital stock of the Company, then (i) the
Exercise Price shall be multiplied by a fraction the numerator of which shall
be the number of shares of Common Stock (excluding treasury shares, if any)
outstanding before such event and the denominator of which shall be the number
of shares of Common Stock outstanding (excluding treasury shares, if any) after
such event and (ii) the number of Warrant Shares shall be multiplied by a
fraction, the numerator of which shall be the number of shares of Common Stock
(excluding treasury shares, if any) outstanding after such event and the
denominator of which shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding before such event. Any adjustment made
pursuant to this paragraph (6)(a) shall become effective immediately after the
record date for the determination of shareholders entitled to receive such
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b. Rights; Options; Warrants or Other Securities. If the Company, at any time
while this Warrant is outstanding, shall fix a record date for the issuance of
rights, options, warrants or other securities to all of the holders of Common
Stock entitling them to subscribe for or purchase, convert to, exchange for or
otherwise acquire shares of Common Stock for no consideration or at a price per
share less than the Exercise Price, the Exercise Price shall be multiplied by a
fraction, the denominator of which shall be the number of shares of Common
Stock (excluding treasury shares, if any) outstanding on the date of issuance
of such rights, options, warrants or other securities plus the number of
additional shares of Common Stock offered for subscription, purchase,
conversion, exchange or acquisition and the numerator of which shall be the
number of shares of Common Stock (excluding treasury shares, if any)
outstanding on the date of issuance of such rights, options, warrants or other
securities plus the number of shares which the aggregate offering price of the
total number of shares so offered would purchase at the Exercise Price. Such
adjustment shall be made whenever such rights, options, warrants or other
securities are issued, and shall become effective immediately after the record
date for the determination of shareholders entitled to receive such rights,
options, warrants or other securities.
c. Subscription Rights. If the Company, at any time while this Warrant is
outstanding, shall fix a record date for the distribution to all of the holders
of Common Stock evidence of its indebtedness or assets or rights, options,
warrants or other security entitling them to subscribe for or purchase, convert
to, exchange for or otherwise acquire any security (excluding those referred to
in paragraphs 6(a) and (b) above), then in each such case the Exercise Price at
which the Warrant shall thereafter be exercisable shall be determined by
multiplying the Exercise Price in effect immediately prior to the record date
fixed for determination of shareholders entitled to receive such distribution
by a fraction, the denominator of which shall be the Per Share Market Value of
Common Stock determined as of the record date mentioned above, and the
numerator of which shall be such Per Share Market Value of the Common Stock on
such record date less the then fair market value at such record date of the
portion of such assets or evidence of indebtedness so distributed applicable to
one outstanding share of Common Stock as determined by the Board of Directors
in good faith; provided, however, that in the event of a distribution exceeding
ten percent (10%) of the net assets of the Company, such fair market value
shall be determined in accordance with the Appraisal Procedure. Such adjustment
shall be made whenever any such distribution is made and shall become effective
immediately after the record date mentioned above.
d. Rounding. All calculations under this Section 6 shall be made to the nearest
cent or the nearest l/l00th of a share, as the case may be.
e. Notice of Adjustment. Whenever the Exercise Price is adjusted pursuant to
paragraphs 6(a), (b) or (c), the Company shall promptly deliver to the
Registered Owner a notice setting forth the Exercise Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment.
f. Redemption Events. The following are "Redemption Events" under this Section
6(f): (A) any Change of Control or (B) any suspension from listing or delisting
of the Common Stock from the Nasdaq or any Subsequent Market on which the
Common Stock is listed for a period of five consecutive days. On and after the
date of any Redemption Event, the Registered Owner shall have the option to
require the Company to redeem (the "Redemption Right"), for a period of thirty
(30) days after the Registered Owner receives notice of Redemption Event, in
cash within 10 days of the Redemption Event, the Registered Owner's shares of
Common Stock immediately theretofore acquirable and receivable upon the
exercise of such Registered Owner's Warrant at a price per share equal to the
product of (i) the amount by which, if any, the Average Price immediately
preceding the latest of the effective date, the date of the closing, date of
occurrence or the date of the announcement, as the case may be, of the
Redemption Event triggering such Redemption Right exceeds the Exercise Price
and (ii) the number of shares of Common Stock issuable upon exercise of the
Warrant immediately prior to such Redemption Event. After the occurrence of
(A), the Registered Owner shall have the right at his or its option, in lieu of
the Redemption Right, to exercise the Warrant for shares of stock and other
securities, cash and property receivable upon or deemed to be held by holders
of Common Stock following such Redemption Event; the Registered Owner shall be
entitled upon such event to receive such amount of securities, cash or property
as if the Registered Owner had exercised the Warrant of the shares of the
Common Stock issuable upon exercise of the Warrant immediately prior to such
Redemption Event (without taking into account any limitations or restrictions
on the exercise of the Warrant). In the case of a transaction specified in (A)
in which holders of the Company's Common Stock receive cash, the Registered
Owner shall have the right at his or its option, in lieu of the Redemption
Right, to exercise the Warrant for such number of shares of the surviving
company equal to the amount of cash into which the Warrant is exercisable
divided by the fair market value of the shares of the surviving company on the
effective date of the merger. In the case of (A), the Company shall not effect
any such Redemption Event unless, prior to the consummation thereof, each
Person (other than the Company) which may be required to deliver any stock,
securities, cash or property upon the exercise of the Warrant as provided
herein shall assume, by written instrument delivered and reasonably
satisfactory to, the Registered Owner, (a) the obligations of the Company under
the Warrant (and if the Company shall survive the consummation of such
transaction, such assumption shall be in addition to, and shall not release the
Company from, any continuing obligations of the Company under this Warrant),
(b) the obligations of the Company under the Purchase Agreement, the Warrant
and the Registration Rights Agreement, and (c) the obligation to deliver to the
Registered Owner such shares of stock, securities, cash or property as, in
accordance with the foregoing provisions of this Section 6(f), the Registered
Owner may be entitled to receive. Nothing in this Section 6(f) shall be deemed
to authorize the Company to enter into any transaction not otherwise permitted
by the Purchase Agreement. This provision shall similarly apply to successive
Redemption Events.
g. Notice of Certain Events. If:
(i) the Company shall declare a dividend (or any other distribution) on its
Common Stock; or
(ii) the Company shall declare a special nonrecurring cash dividend on or a
redemption of its Common Stock; or
(iii) the Company shall authorize the granting to the holders of the Common
Stock rights or warrants to subscribe for or purchase any shares of capital
stock of any class or of any rights; or
(iv) the approval of any shareholders of the Company shall be required in
connection with any reclassification of the Common Stock of the Company, any
consolidation or merger to which the Company is a party, any sale or transfer
of all or substantially all of the assets of the Company, or any compulsory
share exchange whereby the Common Stock is converted into other securities,
cash or property; or
(v) the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company;
then the Company shall cause to be filed at each office or agency maintained
for the purpose of exercise of this Warrant, and shall cause to be delivered to
the Registered Owner, at least 10 Business Days prior to the applicable record
or effective date hereinafter specified, a notice (provided such notice shall
not include any material non-public information) stating (x) the date on which
a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such dividend,
distributions, redemption, rights or warrants are to be determined or (y) the
date on which such reclassification, consolidation, merger, sale, transfer or
share exchange is expected to become effective or close, and the date as of
which it is expected that holders of Common Stock of record shall be entitled
to exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer
or share exchange; provided, however, that the failure to mail such notice or
any defect therein or in the mailing thereof shall not affect the validity of
the corporate action required to be specified in such notice.
h. Adjustment of Number of Shares. Upon each adjustment of the Exercise Price
as a result of the calculations made in this Section 6, this Warrant shall
thereafter evidence the right to receive, at the adjusted Exercise Price, that
number of shares of Common Stock (calculated to the nearest one-hundredth)
obtained by dividing (i) the product of the aggregate number of shares covered
by this Warrant immediately prior to such adjustment and the Exercise Price in
effect immediately prior to such adjustment of the Exercise Price by (ii) the
Exercise Price in effect immediately after such adjustment of the Exercise
Price.
7. Officer's Certificate. Whenever the number of shares purchasable upon
exercise shall be adjusted as required by the provisions of Section 6, the
Company shall forthwith file in the custody of its Secretary or an Assistant
Secretary at its principal office and with its stock transfer agent, if any, an
officer's certificate showing the adjusted Exercise Price, number of shares or
other securities determined as herein provided, setting forth in reasonable
detail the facts requiring such adjustment and the manner of computing such
adjustment. Each such officer's certificate shall be signed by the chairman,
president or chief financial officer of the Company and by the secretary or any
assistant secretary of the Company. Each such officer's certificate shall be
made available at all reasonable times for inspection by any Registered Owner
of the Warrants and the Company shall, forthwith after each such adjustment,
deliver a copy of such certificate to the each of the Registered Owners.
8. Definitions. Capitalized terms used herein and not otherwise defined herein
shall have the meanings given to such terms in the Purchase Agreement. As used
in this Warrant, the following terms have the following meanings:
"Affiliate" means, with respect to any Person, any other Person that directly
or indirectly controls or is controlled by or under common control with such
Person. For the purposes of this definition, "control," when used with respect
to any Person, means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise; and the
terms of "affiliated," "controlling" and "controlled" have meanings correlative
to the foregoing.
"Appraisal Procedure" shall have the following meaning. The independent
directors of the Company shall determine the fair market value. The Holders
shall have ten (10) Business Days to provide the Company with written notice of
its approval or disapproval of such determination. If the Holders do not
respond within such ten (10) Business Day period, they will be deemed to have
approved the fair market value determination of the independent directors. If
the Holders appropriately respond that they do not approve of the determination
and the independent directors and Holders collectively can not agree on an
appropriate fair market value within 30 Business Days, then the Company, on the
one hand, and the Holders, on the other hand shall each appoint an Appraiser. A
neutral Appraiser shall be appointed by the two party- appointed Appraisers.
The three Appraisers shall collectively ascertain the fair market value, which
valuation shall be binding upon all parties absent manifest error.
"Appraiser" shall mean a nationally recognized or major regional investment
banking firm or firm of independent certified public accountants of recognized
standing. "Average Price" on any date means (x) the sum of the Per Share Market
Value for the ten (10) Trading Days immediately preceding such date minus (y)
the highest and lowest Per Share Market Value during the ten (10) Trading Days
immediately preceding such date, divided by (z) eight (8), or a similar
calculation if another figure for the number of Trading Days is set forth for
clause (x) of this definition.
"Business Day" means any day except Saturday, Sunday and any day which shall be
a legal holiday or a day on which banking institutions in the state of New York
generally are authorized or required by law or other government actions to
close.
"Change of Control" means the occurrence of any of (i) an acquisition after the
date hereof by an individual or legal entity or "group" (as described in Rule
13d-5(b)(1) promulgated under the Exchange Act), other than the Purchasers or
any of their Affiliates, of in excess of 40% of the voting securities of the
Company, (ii) a replacement of more than one-half of the members of the
Company's Board of Directors which is not approved by those individuals who are
members of the Board of Directors on the date hereof in one or a series of
related transactions, (iii) the merger of the Company with or into another
entity, consolidation or sale of all or substantially all of the assets of the
Company in one or a series of related transactions, or (v) the execution by the
Company of an agreement to which the Company is a party or by which it is
bound, providing for any of the events set forth above in (i), (ii) , (iii),
(iv) or (v);
"Closing" means the closing of the purchase and sale of Common Stock and
warrants as described in Section 1.2 and 1.3 of the Purchase Agreement.
"Common Stock" means the shares of the Company's Common Stock, par value $0.01
per share.
"Company" means SatCon Technology Corporation, a Delaware corporation.
"Exercise Period" has the meaning assigned to it the Section 4 hereof.
"Exercise Price" has the meaning assigned to it in Section 3 hereof
"Per Share Market Value" means on any particular date (i) the closing bid price
per share of the Common Stock on such date on the National Market System of the
Nasdaq Stock Market or other registered national stock exchange on which the
Common Stock is then listed or if there is no such price on such date, then the
closing bid price on such exchange or quotation system on the date nearest
preceding such date, or (ii) if the Common Stock is not listed then on the
National Market System of the Nasdaq Stock Market or any registered national
stock exchange, the closing bid price for a share of Common Stock in the
over-the-counter market, as reported by the National Quotation Bureau
Incorporated (or similar organization or agency succeeding to its functions of
reporting prices) at the close of business on such date, or (iii) if the Common
Stock is not then publicly traded the fair market value of a share of Common
Stock as determined in accordance with the Appraisal Procedure. In addition,
all determinations of the Per Share Market Value shall be appropriately
adjusted for any stock dividends, stock splits or other similar transactions
during such period.
"Purchase Agreement" means that certain Securities Purchase Agreement, dated
October 13, 1999, among the Company and the Purchaser.
"Purchaser" has the meaning set forth in the Purchase Agreement.
"Redemption Event" has the meaning assigned to it in Section 6(f) hereof.
"Redemption Right" has the meaning assigned to it in Section 6(f) hereof.
"Registered Owner" means the person identified on the face of this Warrant as
the registered owner hereof or such other person as shown on the records of the
Company as being the registered owner of this Warrant or their assigns.
"SatCon Registration Rights Agreement" means that certain Registration Rights
Agreement, dated October 13, 1999, among the Company and the Purchasers.
"Trading Day(s)" means any day on which the primary market on which shares of
Common Stock are listed is open for trading.
"Underlying Shares" means the shares of Common Stock issuable upon exercise of
the Warrants.
"Warrant(s)" means the warrants issuable to Mechanical Technology Incorporated
at the Closing.
9. Registration Rights. The Warrant Shares are subject to the Registration
Rights Agreement.
10. Reservation of Underlying Shares; Listing. The Company covenants that it
will at all times reserve and keep available out of its authorized shares of
Common Stock, free from preemptive rights, solely for the purpose of issue upon
exercise of the Warrants as herein provided, such number of shares of the
Common Stock as shall then be issuable upon the exercise of all outstanding
Warrants into Common Stock. The Company covenants that all shares of the Common
Stock issued upon exercise of the Warrant which shall be so issuable shall,
when issued, be duly and validly issued and fully paid and non-assessable. The
Company shall promptly secure the listing of the shares of Common Stock
issuable upon exercise of the Warrant upon each national securities exchange or
automated quotation system, if any, upon which shares of Common Stock are then
listed (subject to official notice of issuance upon exercise of this Warrant)
and shall maintain, so long as any other shares of Common Stock shall be so
listed, such listing of all shares of Common Stock form time to time issuable
upon the exercise of this Warrant; and the Company shall so list on each
national securities exchange or automated quotation system, as the case may be,
and shall maintain such listing of, any other shares of capital stock of the
Company issuable upon the exercise of this Warrant if and so long as any shares
of the same class shall be listed on such national securities exchange or
automated quotation system.
11. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be deemed to have been received
(a) upon hand delivery (receipt acknowledged) or delivery by telex (with
correct answer back received), telecopy or facsimile (with transmission
confirmation report) at the address or number designated below (if received by
5:00 p.m. eastern time where such notice is to be received), or the first
Business Day following such delivery (if received after 5:00 p.m. eastern time
where such notice is to be received) or (b) on the second Business Day
following the date of mailing by express courier service, fully prepaid,
addressed to such address, or upon actual receipt of such mailing, whichever
shall first occur. The addresses for such communications are (i) if to the
Company to SatCon Technology Corporation, 161 First Street, Cambridge, MA
02142-1221, Attn: President and Chief Executive Officer, fax no. (617)
576-7455, with copies to Hale & Dorr LLP, 60 State Street, Boston, MA 02109,
Attn: Jeffrey N. Carp, Esq., fax no. (617) 526-5000 and (ii) if to the
Purchaser to Mechanical Technology Incorporated at 968 Albany-Shaker Road,
Latham, New York 12110, Attention: Cynthia A. Scheuer, Chief Financial Officer
with copies to Catherine S. Hill, PLLC, 4 Global View, Troy, New York 12180,
Attention: Catherine Hill, or such other address as may be designated in
writing hereafter, in the same manner, by such Person.
12. Compliance With Governmental Requirements. The Company covenants that if
any shares of Common Stock required to be reserved for purposes of exercise of
Warrants hereunder require registration with or approval of any governmental
authority under any Federal or state law, or any national securities exchange,
before such shares may be issued upon exercise, the Company will use its best
efforts to cause such shares to be duly registered or approved, as the case may
be.
13. Fractional Shares. Upon any exercise hereunder, the Company shall not be
required to issue stock certificates representing fractions of shares of the
Common Stock, but may if otherwise permitted make a cash payment in respect of
any final fraction of a share based on the Per Share Market Value at such time.
If the Company elects not, or is unable, to make such a cash payment, the
Registered Owner shall be entitled to receive, in lieu of the final fraction of
a share, one whole share of Common Stock.
14. Payment of Tax Upon Issue of Transfer. The issuance of certificates for
shares of the Common Stock upon exercise of the Warrants shall be made without
charge to the Registered Owners thereof for any documentary stamp or similar
taxes that may be payable in respect of the issue or delivery of such
certificate, provided that the Company shall not be required to pay any tax
that may be payable in respect of any transfer involved in the issuance and
delivery of any such certificate upon exercise in a name other than that of the
Registered Owner of such Warrant so converted and the Company shall not be
required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
15. Warrants Owned by Company Deemed Not Outstanding. In determining whether
the holders of the outstanding Warrants have concurred in any direction,
consent or waiver under this Warrant, warrants which are owned by the Company
or by any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall be disregarded and
deemed not to be outstanding for the purpose of any such determination.
Warrants so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Company the
pledgee's right so to act with respect to such warrants and that the pledgee is
not the Company or any other obligor upon the securities or any Affiliate of
the Company or any other obligor on the warrants.
16. Effect of Headings. The section headings herein are for convenience only
and shall not affect the construction hereof.
17. No Rights as Stockholder. This Warrant shall not entitle the Registered
Owner to any rights as a stockholder of the Company, including without
limitation, the right to vote, to receive dividends and other distributions, or
to receive notice of, or to attend, meetings of stockholders or any other
proceedings of the Company, unless and to the extent converted into shares of
Common Stock in accordance with the terms hereof.
18. Certain Actions Prohibited. The Company will not, by amendment of its
charter or through any 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 by it hereunder, but will at all times in
good faith assist in the carrying out of all the provisions of this Warrant and
in the taking of all such action as may reasonably be requested by the holder
of this Warrant in order to protect the exercise privilege of the holder of
this Warrant against dilution or other impairment, consistent with the tenor
and purpose of this Warrant. Without limiting the generality of the foregoing,
the Company (i) will not increase the par value of any shares of Common Stock
receivable upon the exercise of this Warrant above the Exercise Price then in
effect, and (ii) will take all such actions as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock upon the exercise of this Warrant.
19. Shareholder Rights Plan. Notwithstanding the foregoing, in the event that
the Company shall distribute "poison pill" rights pursuant to a "poison pill"
shareholder rights plan (the "Rights"), the Company shall, in lieu of making
any adjustment pursuant to Section 6 hereof, make proper provision so that each
Registered Owner who exercises a Warrant after the record date for such
distribution and prior to the expiration or redemption of the Rights shall be
entitled to receive upon such exercise, in addition to the shares of Common
Stock issuable upon such exercise, a number of Rights to be determined as
follows: (i) if such exercise occurs on or prior to the date for the
distribution to the holders of Rights of separate certificates evidencing such
Rights (the "Distribution Date"), the same number of Rights to which a holder
of a number of shares of Common Stock equal to the number of shares of Common
Stock issuable upon such exercise at the time of such exercise would be
entitled in accordance with the terms and provisions of and applicable to the
Rights; and (ii) if such exercise occurs after the Distribution Date, the same
number of Rights to which a holder of the number of shares into which the
Warrant to exercised was exercisable immediately prior to the Distribution Date
would have been entitled on the Distribution Date in accordance with the terms
and provisions of and applicable to the Rights, and in each case subject to the
terms and conditions of the Rights.
20. Successors and Assigns. This Warrant shall be binding upon and inure to the
benefit of the Registered Owners and its assigns, and shall be binding upon any
entity succeeding to the Company by merger or acquisition of all or
substantially all the assets of the Company. The Company may not assign this
Warrant or any rights or obligations hereunder without the prior written
consent of the Registered Owner. The Registered Owner may assign this Warrant
without the prior written consent of the Company.
21. Transfers. The Company shall maintain a register (the "Register")
containing the name and address of the Registered Owner of this Warrant, which
Register can be relied upon by the Company as conclusive evidence of the
Registered Owner. If the Registered Owner transfers or assigns this Warrant it
shall promptly notify the Company in writing of the name and address of the
person to which such transfer or assignation was made. Upon receipt of such
notice the Company shall immediately update the Register to incorporate the new
Registered Owner.
22. Governing Law. This Warrant shall be governed by and construed and enforced
in accordance with the internal laws of the State of New York without regard to
the principles of conflicts of law thereof. Each party hereby irrevocably
submits to the nonexclusive jurisdiction of the state and federal courts
sitting in the City of Albany, County of Albany, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that 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 for
such notices to it under this Warrant 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. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF
ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
duly authorized officer as of the date first set forth above.
SATCON TECHNOLOGY CORPORATION
By: /s/David B. Eisenhaure
Name:David B. Eisenhaure
Title:President/Chief Executive
Officer
EXHIBIT A
Warrant Exercise Form
TO: SatCon Technology Corporation
The undersigned hereby: (1) irrevocably subscribes for and offers to purchase
_______ shares of Common Stock of SatCon Technology Corporation, pursuant to
Warrant No. ___ heretofore issued to ___________________ on ____________,
199__; (2) encloses either (a) a cash payment of $__________ or (b) the
cancellation of such portion of the attached Warrant as is exercisable for a
total of ______ Warrant Shares (using a Fair Market Value of $ _______ per
share for purposes of this calculation); and (3) requests that a certificate
for the shares be issued in the name of the undersigned and delivered to the
undersigned at the address specified below.
Date:
Investor Name:
Taxpayer Identification
Number:
By:
Printed Name:
Title:
Address:
Note: The above signature should correspond exactly with the name on the face
of this Warrant or with the name of assignee appearing in assignment form
below.
AND, if said number of shares shall not be all the shares purchasable under the
within Warrant, a new Warrant is to be issued in the name of said undersigned
for the balance remaining of the shares purchasable thereunder less any
fraction of a share paid in cash and delivered to the address stated above. 11