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NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE
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 AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON
EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A
BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
[SERIES A/B/C] COMMON STOCK PURCHASE WARRANT
JUHL
WIND, INC.
| Warrant
Shares: _______ |
Initial
Exercise Date: June ___, 2008 |
THIS
[SERIES A/B/C] COMMON STOCK PURCHASE WARRANT (the
“
Warrant ”)
certifies that, for value received, _____________ (the
“
Holder ”)
is entitled, upon the terms and subject to the limitations on
exercise and the conditions hereinafter set forth, at any time on
or after the date hereof (the “
Initial Exercise Date ”)
and on or prior to the close of business on the five year
anniversary of the Initial Exercise Date (the “
Termination Date ”)
but not thereafter, to subscribe for and purchase from Juhl Wind,
Inc., a Delaware corporation (the “
Company ”),
up to ______ shares (the “
Warrant Shares ”)
of Common Stock. The purchase price of one share of Common Stock
under this Warrant shall be equal to the Exercise Price, as defined
in Section 2(b).
Section 1 .
Definitions .
Capitalized terms used and not otherwise defined herein shall have
the meanings set forth in that certain Securities Purchase
Agreement (the “
Purchase Agreement ”),
dated June ___, 2008, among the Company and the purchasers
signatory thereto.
Section 2 .
Exercise .
a)
Exercise of Warrant .
Exercise of the purchase rights represented by this Warrant may be
made, in whole or in part, at any time or times on or after the
Initial Exercise Date and on or before the Termination Date by
delivery to the Company (or such other office or agency of the
Company as it may designate by notice in writing to the registered
Holder at the address of the Holder appearing on the books of the
Company) of a duly executed facsimile copy of the Notice of
Exercise Form annexed hereto; and, within 3 Trading Days of the
date said Notice of Exercise is delivered to the Company, the
Company shall have received payment of the aggregate Exercise Price
of the shares thereby purchased by wire transfer or cashier’s
check drawn on a United States bank. Notwithstanding anything
herein to the contrary, the Holder shall not be required to
physically surrender this Warrant to the Company until the Holder
has purchased all of the Warrant Shares available hereunder and the
Warrant has been exercised in full, in which case, the Holder shall
surrender this Warrant to the Company for cancellation within 3
Trading Days of the date the final Notice of Exercise is delivered
to the Company. Partial exercises of this Warrant resulting in
purchases of a portion of the total number of Warrant Shares
available hereunder shall have the effect of lowering the
outstanding number of Warrant Shares purchasable hereunder in an
amount equal to the applicable number of Warrant Shares purchased.
The Holder and the Company shall maintain records showing the
number of Warrant Shares purchased and the date of such purchases.
The Company shall deliver any objection to any Notice of Exercise
Form within 1 Business Day of receipt of such notice. In the event
of any dispute or discrepancy, the records of the Holder shall be
controlling and determinative in the absence of manifest
error.
The Holder and any assignee, by acceptance of this Warrant,
acknowledge and agree that, by reason of the provisions of this
paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for
purchase hereunder at any given time may be less than the amount
stated on the face hereof.
b)
Exercise Price .
The exercise price per share of the Common Stock under this Warrant
shall be
$____
1 ,
subject to adjustment hereunder (the “
Exercise Price ”).
c)
Cashless Exercise .
If at any time after the earlier of (i) the one year anniversary of
the date of the Purchase Agreement and (ii) the completion of the
then-applicable holding period required by Rule 144, or any
successor provision then in effect, there is no effective
Registration Statement registering, or no current prospectus
available for, the resale of the Warrant Shares by the Holder, then
this Warrant may also be exercised at such time by means of a
“cashless exercise” in which the Holder shall be
entitled to receive a certificate for the number of Warrant Shares
equal to the quotient obtained by dividing [(A-B) (X)] by (A),
where:
(A)
= the VWAP on the Trading Day immediately preceding the date
of such election;
(B)
= the Exercise Price of this Warrant, as adjusted;
and
(X)
= the number of Warrant Shares issuable upon exercise of this
Warrant in accordance with the terms of this Warrant by means
of a cash exercise rather than a cashless
exercise.
1 Series
A Warrants, $1.25; Series B Warrants; $1.50; and Series C Warrants,
$1.75.
Notwithstanding
anything herein to the contrary, on the Termination Date, this
Warrant shall be automatically exercised via cashless exercise
pursuant to this Section 2(c).
d)
Exercise Limitations .
From the Initial Exercise Date until the 61
st day
prior to the Termination Date, the Company shall not effect any
exercise of this Warrant, and a Holder shall not have the right to
exercise any portion of this Warrant, pursuant to Section 2 or
otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise,
the Holder (together with the Holder’s Affiliates, and any
other person or entity acting as a group together with the Holder
or any of the Holder’s Affiliates), would beneficially own in
excess of the Beneficial Ownership Limitation (as defined
below). For purposes of the foregoing sentence, the number of
shares of Common Stock beneficially owned by the Holder and its
Affiliates shall include the number of shares of Common Stock
issuable upon exercise of this Warrant with respect to which such
determination is being made, but shall exclude the number of shares
of Common Stock which would be issuable upon (A) exercise of the
remaining, nonexercised portion of this Warrant beneficially owned
by the Holder or any of its Affiliates and (B) exercise or
conversion of the unexercised or nonconverted portion of any other
securities of the Company (including, without limitation, any other
Common Stock Equivalents) subject to a limitation on conversion or
exercise analogous to the limitation contained herein beneficially
owned by the Holder or any of its affiliates. Except as set
forth in the preceding sentence, for purposes of this Section 2(d),
beneficial ownership shall be calculated in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is
not representing to the Holder that such calculation is in
compliance with Section 13(d) of the Exchange Act and the Holder is
solely responsible for any schedules required to be filed in
accordance therewith. To the extent that the limitation contained
in this Section 2(d) applies, the determination of whether this
Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates) and of which portion of
this Warrant is exercisable shall be in the sole discretion of the
Holder, and the submission of a Notice of Exercise shall be deemed
to be the Holder’s determination of whether this Warrant is
exercisable (in relation to other securities owned by the Holder
together with any Affiliates) and of which portion of this Warrant
is exercisable, in each case subject to the Beneficial Ownership
Limitation, and the Company shall have no obligation to verify or
confirm the accuracy of such determination. In addition, a
determination as to any group status as contemplated above shall be
determined in accordance with Section 13(d) of the Exchange Act and
the rules and regulations promulgated thereunder. For purposes of
this Section 2(d), in determining the number of outstanding shares
of Common Stock, a Holder may rely on the number of outstanding
shares of Common Stock as reflected in (A) the Company’s most
recent periodic or annual report, as the case may be, (B) a more
recent public announcement by the Company or (C) any other notice
by the Company or the Transfer Agent setting forth the number of
shares of Common Stock outstanding. Upon the written or oral
request of a Holder, the Company shall within two Trading Days
confirm orally and in writing to the Holder the number of shares of
Common Stock then outstanding. In any case, the number of
outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Company,
including this Warrant, by the Holder or its Affiliates since the
date as of which such number of outstanding shares of Common Stock
was reported. The “
Beneficial Ownership Limitation ”
shall be 9.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of
shares of Common Stock issuable upon exercise of this Warrant. The
Holder, upon not less than 61 days’ prior notice to the
Company (unless there are less than 61 days remaining until the
Termination Date, in which case such notice period shall be one day
less than the number of days remaining until the Termination Date),
may waive the Beneficial Ownership Limitation provisions of this
Section 2(d). Any such waiver will not be effective until the
61
st day
after such notice is delivered to the Company (or such shorter
period described in the previous sentence if there are less than 61
days remaining until the Termination Date). The provisions of this
paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 2(d) to
correct this paragraph (or any portion hereof) which may be
defective or inconsistent with the intended Beneficial Ownership
Limitation herein contained or to make changes or supplements
necessary or desirable to properly give effect to such limitation.
The limitations contained in this paragraph shall apply to a
successor holder of this Warrant.
e)
Mechanics of Exercise .
i.
Delivery of Certificates Upon Exercise .
Certificates for shares purchased hereunder shall be transmitted by
the Transfer Agent to the Holder by crediting the account of the
Holder’s prime broker with the Depository Trust Company
through its Deposit Withdrawal Agent Commission (“
DWAC ”)
system if the Company is then a participant in such system and
either (A) there is an effective Registration Statement permitting
the resale of the Warrant Shares by the Holder or (B) the shares
are eligible for resale without volume or manner-of-sale
limitations pursuant to Rule 144, and otherwise by physical
delivery to the address specified by the Holder in the Notice of
Exercise within 3 Trading Days from the delivery to the Company of
the Notice of Exercise Form, surrender of this Warrant (if
required) and payment of the aggregate Exercise Price as set forth
above (the “
Warrant Share Delivery Date ”).
This Warrant shall be deemed to have been exercised on the date the
Exercise Price is received by the Company. The Warrant Shares shall
be deemed to have been issued, and Holder or any other person so
designated to be named therein shall be deemed to have become a
holder of record of such shares for all purposes, as of the date
the Warrant has been exercised by payment to the Company of the
Exercise Price (or by cashless exercise, if permitted) and all
taxes required to be paid by the Holder, if any, pursuant to
Section 2(e)(vi) prior to the issuance of such shares, have been
paid. If the Company fails for any reason to deliver to the Holder
certificates evidencing the Warrant Shares subject to a Notice of
Exercise by the Warrant Share Delivery Date, the Company shall pay
to the Holder, in cash, as liquidated damages and not as a penalty,
for each $1,000 of Warrant Shares subject to such exercise (based
on the VWAP of the Common Stock on the date of the applicable
Notice of Exercise), $10 per Trading Day (increasing to $20 per
Trading Day on the fifth Trading Day after such liquidated damages
begin to accrue) for each Trading Day after such Warrant Share
Delivery Date until such certificates are delivered.
ii.
Delivery of New Warrants Upon Exercise .
If this Warrant shall have been exercised in part, the Company
shall, at the request of a Holder and upon surrender of this
Warrant certificate, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to Holder a new
Warrant evidencing the rights of Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.
iii.
Rescission Rights .
If the Company fails to cause the Transfer Agent to transmit to the
Holder a certificate or the certificates representing the Warrant
Shares pursuant to Section 2(e)(i) by the Warrant Share Delivery
Date, then, the Holder will have the right to rescind such
exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Certificates
Upon Exercise .
In addition to any other rights available to the Holder, if the
Company fails to cause the Transfer Agent to transmit to the Holder
a certificate or the certificates representing the Warrant Shares
pursuant to an exercise on or before the Warrant Share Delivery
Date, and if after such date the Holder is required by its broker
to purchase (in an open market transaction or otherwise) or the
Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the
Warrant Shares which the Holder anticipated receiving upon such
exercise (a “
Buy-In ”),
then the Company shall (A) pay in cash to the Holder the amount by
which (x) the Holder’s total purchase price (including
brokerage commissions, if any) for the shares of Common Stock so
purchased exceeds (y) the amount obtained by multiplying (1) the
number of Warrant Shares that the Company was required to deliver
to the Holder in connection with the exercise at issue times (2)
the price at which the sell order giving rise to such purchase
obligation was executed, and (B) at the option of the Holder,
either reinstate the portion of the Warrant and equivalent number
of Warrant Shares for which such exercise was not honored or
deliver to the Holder the number of shares of Common Stock that
would have been issued had the Company timely complied with its
exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of
$11,000 to cover a Buy-In with respect to an attempted exercise of
shares of Common Stock with an aggregate sale price giving rise to
such purchase obligation of $10,000, under clause (A) of the
immediately preceding sentence the Company shall be required to pay
the Holder $1,000. The Holder shall provide the Company written
notice indicating the amounts payable to the Holder in respect of
the Buy-In and, upon request of the Company, evidence of the amount
of such loss. Nothing herein shall limit a Holder’s right to
pursue any other remedies available to it hereunder, at law or in
equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the
Company’s failure to timely deliver certificates representing
shares of Common Stock upon exercise of the Warrant as required
pursuant to the terms hereof.
v.
No Fractional Shares or Scrip .
No fractional shares or scrip representing fractional shares shall
be issued upon the exercise of this Warrant. As to any fraction of
a share which Holder would otherwise be entitled to purchase upon
such exercise, the Company shall, at its election, either pay a
cash adjustment in respect of such final fraction in an amount
equal to such fraction multiplied by the Exercise Price or round up
to the next whole share.
vi.
Charges, Taxes and Expenses .
Issuance of certificates for Warrant Shares shall be made without
charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such certificate,
all of which taxes and expenses shall be paid by the Company, and
such certificates shall be issued in the name of the Holder or in
such name or names as may be directed by the Holder;
provided ,
however ,
that in the event certificates for Warrant Shares are to be issued
in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment
Form attached hereto duly executed by the Holder and the Company
may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental
thereto.
vii.
Closing of Books .
The Company will not close its stockholder books or records in any
manner which prevents the timely exercise of this Warrant, pursuant
to the terms hereof.
f)
Call Provision .
Subject to the provisions of Section 2(d) and this Section 2(f),
if, after the Effective Date, (i) the VWAP for each of 30
consecutive Trading Days (the “
Measurement Period ,”
which 30 consecutive Trading Day period shall not have commenced
until after the Effective Date) exceeds $______
2
(subject
to adjustment for forward and reverse stock splits,
recapitalizations, stock dividends and the like after the Initial
Exercise Date), (ii) the average daily volume for such Measurement
Period exceeds 50,000 shares of Common Stock per Trading Day
(subject to adjustment for forward and reverse stock splits,
recapitalizations, stock dividends and the like after the Initial
Exercise Date) and (iii) the Holder is not in possession of any
information that constitutes, or might constitute, material
non-public information which was provided by the Company, then the
Company may, within 1 Trading Day of the end of such Measurement
Period, call for cancellation of all or any portion of this Warrant
for which a Notice of Exercise has not yet been delivered (such
right, a “
Call ”)
for consideration equal to $.001 per Share. To exercise this right,
the Company must deliver to the Holder an irrevocable written
notice (a “
Call Notice ”),
indicating therein the portion of unexercised portion of this
Warrant to which such notice applies. If the conditions set forth
below for such Call are satisfied from the period from the date of
the Call Notice through and including the Call Date (as defined
below), then any portion of this Warrant subject to such Call
Notice for which a Notice of Exercise shall not have been received
by the Call Date will be cancelled at 6:30 p.m. (New York City
time) on the tenth Trading Day after the date the Call Notice is
received by the Holder (such date and time, the “
Call Date ”).
Any unexercised portion of this Warrant to which the Call Notice
does not pertain will be unaffected by such Call Notice. In
furtherance thereof, the Company covenants and agrees that it will
honor all Notices of Exercise with respect to Warrant Shares
subject to a Call Notice that are tendered through 6:30 p.m. (New
York City time) on the Call Date. The parties agree that any Notice
of Exercise delivered following a Call Notice which calls less than
all the Warrants shall first reduce to zero the number of Warrant
Shares subject to such Call Notice prior to reducing the remaining
Warrant Shares available for purchase under this Warrant. For
example, if (A) this Warrant then permits the Holder to acquire 100
Warrant Shares, (B) a Call Notice pertains to 75 Warrant Shares,
and (C) prior to 6:30 p.m. (New York City time) on the Call Date
the Holder tenders a Notice of Exercise in respect of 50 Warrant
Shares, then (x) on the Call Date the right under this Warrant to
acquire 25 Warrant Shares will be automatically cancelled, (y) the
Company, in the time and manner required under this Warrant, will
have issued and delivered to the Holder 50 Warrant Shares in
respect of the exercises following receipt of the Call Notice, and
(z) the Holder may, until the Termination Date, exercise this
Warrant for 25 Warrant Shares (subject to adjustment as herein
provided and subject to subsequent Call Notices). Subject again to
the provisions of this Section 2(f), the Company may deliver
subsequent Call Notices for any portion of this Warrant for which
the Holder shall not have delivered a Notice of Exercise.
Notwithstanding anything to the contrary set forth in this Warrant,
the Company may not deliver a Call Notice or require the
cancellation of this Warrant (and any such Call Notice shall be
void), unless, from the beginning of the Measurement Period through
the Call Date, (1) the Company shall have honored in accordance
with the terms of this Warrant all Notices of Exercise delivered by
6:30 p.m. (New York City time) on the Call Date, and (2) the
Registration Statement shall be effective as to all Warrant Shares
and the prospectus thereunder available for use by the Holder for
the resale of all such Warrant Shares, and (3) the Common Stock
shall be listed or quoted for trading on the Trading Market, and
(4) there is a sufficient number of authorized shares of Common
Stock for issuance of all Securities under the Transaction
Documents, and (5) the issuance of the shares shall not
cau
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