Exhibit 4.2
FORM OF
COMMON STOCK PURCHASE WARRANT
ELECTRIC FUEL CORPORATION
Expires May 8, 2006
No.: W-____ Number of Shares:________
Date of Issuance: May 8, 2001
1. Issuance. In consideration of good and valuable consideration, the
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receipt of which is hereby acknowledged by Electric Fuel Corporation, a Delaware
corporation (the "Company"), ____________________________, or registered assigns
(the "Holder") is hereby granted the right to purchase at any time and from time
to time after November 8, 2001 to and until 5:00 p.m., New York time, on
May 8, 2006 (the "Expiration Date"), __________________ (____________) fully
paid and nonassessable shares (the "Warrant Shares") of the Company's Common
Stock, par value $.01 per share (the "Common Stock"), at an exercise price per
share equal to $3.22 (the "Exercise Price"). The Exercise Price and the number
of shares for which the Warrant is exercisable shall be subject to adjustment as
provided herein. Certain capitalized terms used herein are defined in Section 16
hereof.
2. Exercise of Warrants. Except as provided in Section 4 below, commencing
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after November 8, 2001 exercise of the purchase rights represented by this
Warrant may be made at any time or times, before the close of business on the
Expiration Date, or such earlier date on which this Warrant may terminate as
provided in this Warrant, by the surrender of this Warrant, together with a
completed exercise agreement in the form attached hereto (the "Exercise
Agreement"), to the Company during normal business hours on any business day at
the Company's principal executive offices (or such other office or agency of the
Company as it may designate by notice to the Holder), and upon payment to the
Company in United States dollars in cash, by certified check or cashier's check,
or by wire transfer to an account designated by the Company of immediately
available funds, in an amount equal to the Exercise Price multiplied by the
number of Warrant Shares specified in the Exercise Agreement to be purchased.
The Warrant Shares so purchased shall be deemed to be issued to the Holder or
such Holder's designee, as the record owner of such shares, as of the close of
business on the date on which this Warrant shall have been surrendered, the
completed Exercise Agreement shall have been delivered, and payment shall have
been made for the Warrant Shares as set forth above or, if such date is not a
business date, on the next succeeding business date. The Warrant Shares so
purchased, representing the aggregate number of shares specified in the Exercise
Agreement, shall be delivered to the Holder within a reasonable time, not
exceeding three business days, after this Warrant shall have been so exercised.
If the Company's transfer agent is participating in the Depository Trust Company
("DTC") Fast Automated Securities Transfer program, the Company
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will cause its transfer agent to electronically transmit the Warrant Shares so
purchased to the Holder by crediting the account of the Holder or its nominee
with DTC through its Deposit Withdrawal Agent Commission system ("DTC
Transfer"). If the aforementioned conditions to a DTC Transfer are not
satisfied, the Company will deliver to the Holder physical certificates
representing the Warrant Shares so purchased. Further, the Holder may instruct
the Company to deliver to the Holder physical certificates representing the
Warrant Shares so purchased in lieu of delivering such shares by way of DTC
Transfer. Any certificates so delivered shall be in such denominations as may be
reasonably requested by the Holder, shall be registered in the name of such
Holder or such other name as shall be designated by such Holder, and shall not
bear any restrictive legend, unless otherwise required by law. If this Warrant
shall have been exercised only in part, then the Company will, at the time of
delivery of the certificates for the Warrant Shares purchased, deliver to the
Holder a new Warrant representing the number of shares with respect to which
this Warrant shall not then have been exercised.
3. Reservation and Registration of Shares. The Company hereby
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covenants that at all times during the term of this Warrant there shall be
reserved a sufficient number of shares of its Common Stock as shall be required
for issuance upon exercise of this Warrant. The Company further covenants to
take such actions as the Company shall reasonably determine necessary to
continue the registration of the Warrant Shares under the Securities Act of
1933, as amended.
4. No Fractional Shares or Scrip. No fractional shares of Common Stock
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are to be issued upon the exercise of this Warrant, but the Company will pay a
cash adjustment in respect of any fractional share which would otherwise be
issuable in an amount equal to the same fraction of the Market Price of a share
of Common Stock on the date of such exercise.
5. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by
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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)
receipt of reasonably satisfactory indemnification, and (in the case of
mutilation) upon surrender and cancellation of this Warrant, the Company will
execute and deliver a new Warrant of like tenor and date and any such lost,
stolen, destroyed or mutilated Warrant shall thereupon become void.
6. Rights of the Holder. The Holder shall not, by virtue hereof, be
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entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant and
are not enforceable against the Company except to the extent set forth herein.
7. Adjustments of Exercise Price and Number of Warrant Shares. The
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number and kind of securities purchasable upon the exercise of this Warrant and
the Exercise Price shall be subject to adjustment from time to time upon the
happening of any of the following.
In case the Company shall (i) declare or pay a dividend in shares of
Common Stock or make a distribution in shares of Common Stock to holders of its
outstanding Common Stock, (ii) subdivide its outstanding shares of Common Stock,
(iii) combine its outstanding shares of Common Stock into a smaller number of
shares of Common Stock or (iv) issue any shares of its capital stock in a
reclassification of the Common Stock, then the number of Warrant Shares
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purchasable upon exercise of this Warrant immediately prior thereto shall be
adjusted so that the Holder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which the Holder would have
owned or have been entitled to receive had such Warrant been exercised in
advance thereof. Upon each such adjustment of the kind and number of Warrant
Shares or other securities of the Company which are purchasable hereunder, the
Holder shall thereafter be entitled to purchase the number of Warrant Shares or
other securities resulting from such adjustment at an Exercise Price per such
Warrant Share or other security obtained by multiplying the Exercise Price in
effect immediately prior to such adjustment by the number of Warrant Shares
purchasable pursuant hereto immediately prior to such adjustment and dividing by
the number of Warrant Shares or other securities of the Company resulting from
such adjustment.
An adjustment made pursuant to this Section 7 shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
8. Notice of Adjustment. Whenever the number of Warrant Shares or number
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or kind of securities or other property purchasable upon the exercise of this
Warrant or the Exercise Price is adjusted as herein provided, the Company shall
promptly mail by registered or certified mail, return receipt requested, to the
Holder notice of such adjustment or adjustments setting forth the number of
Warrant Shares (and other securities or property) purchasable upon the exercise
of this Warrant and the Exercise Price of such Warrant Shares (and other
securities or property) after such adjustment, setting forth a brief statement
of the facts requiring such adjustment and setting forth the computation by
which such adjustment was made. Such notice, in absence of manifest error, shall
be conclusive evidence of the correctness of such adjustment.
9. Warrant Call. Except as provided in this Section 9, commencing on
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November 8, 2001, the Company shall have the right, at any time or from time to
time, at the Company's option, upon written notice to the Holder (the "Call
Notice"), to call this Warrant if the Market Price of the Common Stock is equal
to or greater than $6.44 per share for 20 consecutive Trading Days prior to the
date the Company calls the Warrant. To be effective, the Call Notice must be
given within ten days after the aforementioned 20 day period. The Company shall
specify a "Call Date", the date all rights and privileges granted pursuant to
this Warrant shall terminate, in its Call Notice, which shall be no less than
30 business days from the date of receipt by the Holder of the Call Notice. In
the event that this Warrant has not been exercised in full by the Holder by 5:00
p.m. New York time on the Call Date, this Warrant shall expire and no rights or
privileges shall exist hereunder, and the Company will remit to the Holder $0.01
per Warrant Share subject to this Warrant as of the Call Date.
10. Notices. Any notice or other communication required or permitted
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hereunder shall be given in writing and shall be deemed effectively given (a)
upon personal delivery to the person to be notified (b) five days after deposit
with a domestic Post Office, by registered mail, postage prepaid and addressed
to the person to be notified, (c) upon confirmed transmission by electronic
facsimile to the fax number specified for such person, (d) two business days
after sent by certified mail (first class, postage prepaid) and addressed to the
person to be notified or (e) next day for delivery by guaranteed overnight
delivery, which delivery is confirmed. The addresses for such communications
shall be with respect to the Holder of this Warrant or of
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Warrant Shares issued pursuant hereto, addressed to such Holder at its last know
address or facsimile number appearing on the books of the Company maintained for
such purposes, or with respect to the Company, addressed to:
Electric Fuel Corporation
632 Broadway, Suite 301
New York, New York 10012
Facsimile No.: (212) 529-5800
Attn: Yaakov Har-Oz, Vice President
and General Counsel
or to such other address or addresses or facsimile number or numbers as any such
party may most recently have designated in writing to the other party hereto by
notice given in accordance with this Section.
11. Supplements and Amendments; Whole Agreement. This Warrant may be
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amended or supplemented only by an instrument in writing signed by the parties
hereto. This Warrant contains the full understanding of the parties hereto with
respect to the subject matter hereof and there are no representations,
warranties, agreements or understandings other than expressly contained herein
and therein.
12. Governing Law. This Warrant shall be deemed to be a contract made
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under the laws of the State of New York and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
13. Counterparts. This Warrant may be executed in any number of
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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.
14. Descriptive Headings. Descriptive headings of the several Sections of
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this Warrant are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
15. Severability. If any term, provision, covenant or restriction of this
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Warrant is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Warrant shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
16. Certain Definitions.
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(i) "Market Price," as of any date, (i) means the last sale price
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for the shares of Common Stock as reported on the Nasdaq National/SmallCap
Market by Bloomberg Financial Markets ("Bloomberg") for a Trading Day, or
(ii) if the Nasdaq National/SmallCap Market is not the principal trading
market for the shares of Common Stock, the reported closing bid price
reported by Bloomberg on the principal trading
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market for the Common Stock for a Trading Day, or, if there is no bid
price, the last sales price reported by Bloomberg for a Trading Day, or
(iii) if the foregoing do not apply, the last sale price of such security
in the over-the-counter market on the pink sheets or bulletin board for
such security as reported by Bloomberg for any Trading Day, or if no sale
price is so reported for such security, the last bid price of such security
as reported by Bloomberg for any Trading Day.
(ii) "Trading Day", means any business day on which the principal
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United States securities exchange or trading market on which Common Stock
is listed or traded and reported by Bloomberg Financial Markets (or a
comparable reporting service of national reputation selected by the Company
and reasonably acceptable if Bloomberg Financial Markets is not then
reporting closing bid prices of such security) is open for trading.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers under its corporate seal and is
dated the ____ day of May, 2001.
ELECTRIC FUEL CORPORATION
__________________________ By: _______________________________
Witness Name:
Title:
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[FORM OF NOTICE OF EXERCISE]
(To be Executed by the Holder in order to Exercise the Warrant)
To: ELECTRIC FUEL CORPORATION
632 Broadway, Suite 301
New York, New York 10012
Facsimile: (212) 529-5800
Attn: Yaakov Har-Oz, Vice President and General Counsel
The undersigned hereby irrevocably exercises the right to purchase
_____________ shares of the Common Stock of ELECTRIC FUEL CORPORATION, a
corporation organized under the laws of the State of Delaware (the "Company"),
evidenced by the attached Warrant, and herewith makes payment of the Exercise
Price with respect to such shares in full, all in accordance with the conditions
and provisions of said Warrant.
The undersigned agrees not to offer, sell, transfer or otherwise dispose of
any Common Stock obtained on exercise of the Warrant, except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any state securities laws.
The undersigned requests that the Company cause its transfer agent to
electronically transmit the Common Stock issuable pursuant to this Exercise
Agreement to the account of the undersigned or its nominee (which is
_________________) with DTC through its Deposit Withdrawal Agent Commission
System ("DTC Transfer"), provided that such transfer agent participates in
the DTC Fast Automated Securities Transfer program.
In lieu of receiving the shares of Common Stock issuable pursuant to this
Exercise Agreement by way of DTC Transfer, the undersigned hereby requests
that the Company cause its transfer agent to issue and deliver to the
undersigned physical certificates representing such shares of Common Stock.
The undersigned requests that a Warrant representing any unexercised
portion hereof be issued, pursuant to the Warrant, in the name of the Holder and
delivered to the undersigned at the address set forth below:
Dated:_________________ _____________________________________
Signature of Holder
_____________________________________
Name of Holder (Print)
Address:
_____________________________________
_____________________________________
_____________________________________
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
all the rights of the undersigned under the within Warrant, with respect to the
number of shares of Common Stock covered thereby set forth hereinbelow, to:
Name of Assignee Address No. of Shares
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, and hereby irrevocably constitutes and appoints________________________as
agent and attorney-in-fact to transfer said Warrant on the books of the within-
named corporation, with full power of substitution in the premises.
Dated: _____________________, ____
In the presence of
__________________
Name: ____________________________
Signature: _______________________
Title of Signing Officer or Agent (if any):
________________________
Address: ________________________
________________________
Note: The above signature should correspond
exactly with the name on the face of
the within Warrant.