Exhibit 4.1
EXHIBIT A TO LINE
OF CREDIT AGREEMENT
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT
THERETO, OR AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS IS AVAILABLE IN CONNECTION
WITH SUCH OFFER, SALE OR TRANSFER.
WARRANT
TO PURCHASE COMMON STOCK
OF
ENER1, INC.
Issue Date:
THIS CERTIFIES that ENER1 GROUP,
INC., a Florida corporation, or any subsequent holder hereof (the
“ Holder ”), has the right to purchase
from ENER1, INC., a Florida corporation (the “
Company ”), up to
(
) fully paid and
nonassessable shares of the Company’s common stock, par value
$0.01 per share (the “ Common Stock ”),
subject to adjustment as provided herein, at a price per share
equal to the Exercise Price (as defined below), at any time and
from time to time beginning on the date on which this Warrant was
originally issued (the “ Issue Date ”)
and ending at 5:00 p.m., eastern time, on
(the “ Expiration
Date ”); provided , however , that if
the Expiration Date occurs on a date that is not a Business Day,
the Expiration Date shall be deemed to occur on the on the Business
Day immediately following such date. This Warrant is issued
pursuant to the terms of a Line of Credit Agreement, dated as of
December 29, 2008 (the “ LOC Agreement
”). Capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the LOC
Agreement.
1. Exercise .
(a) Right to Exercise;
Exercise Price . The Holder shall have the right to exercise
this Warrant at any time and from time to time during the period
beginning on the Issue Date and ending on the Expiration Date as to
all or any part of the shares of Common Stock covered hereby (the
“ Warrant Shares ”). The “
Exercise Price ” for each Warrant Share
purchased by the Holder upon the exercise of this Warrant shall be
equal to $8.25, subject to adjustment for the events specified in
Section 6 below.
(b) Exercise Notice . In
order to exercise this Warrant, the Holder shall send to the
Company by facsimile transmission, at any time prior to 6:00 p.m.,
eastern time, on the Business Day on which the Holder wishes to
effect such exercise (the “ Exercise Date
”), (i) a notice of exercise in substantially the form
attached hereto as Exhibit A (the “
Exercise Notice ”), (ii) a copy of the
original Warrant, and (iii) the Exercise Price by wire
transfer of immediately available funds. The Exercise Notice shall
state the name or names in which the shares of Common Stock that
are issuable on such exercise shall be issued. In the case of a
dispute between the Company and the Holder as to the calculation of
the Exercise Price or the number of Warrant Shares issuable
hereunder (including, without limitation, the calculation of any
adjustment pursuant to Section 6 below), the
Company shall issue to the Holder the number of Warrant Shares that
are not disputed within the time periods specified in
Section 2 below and shall submit the disputed
calculations to a certified public accounting firm of national
reputation (other than the Company’s regularly retained
accountants) within two (2) Business Days following the date
on which the Holder’s Exercise Notice is delivered to the
Company. The Company shall cause such accountant to calculate the
Exercise Price and/or the number of Warrant Shares issuable
hereunder and to notify the Company and the Holder of the results
in writing no later than three (3) Business Days following the
day on which such accountant received the disputed calculations
(the “ Dispute Procedure ”). Such
accountant’s calculation shall be deemed conclusive absent
manifest error. The fees of any such accountant shall be borne by
the party whose calculations were most at variance with those of
such accountant.
(c) Holder of Record .
The Holder shall, for all purposes, be deemed to have become the
holder of record of the Warrant Shares specified in an Exercise
Notice on the Exercise Date specified therein, irrespective of the
date of delivery of such Warrant Shares. Except as specifically
provided herein, nothing in this Warrant shall be construed as
conferring upon the Holder hereof any rights as a shareholder of
the Company prior to the Exercise Date.
(d) Cancellation of
Warrant . This Warrant shall be canceled upon its exercise in
full and, if this Warrant is exercised in part, the Company shall,
at the time that it delivers Warrant Shares to the Holder pursuant
to such exercise as provided herein, issue a new warrant, and
deliver to the Holder a certificate representing such new warrant,
with terms identical in all respects to this Warrant (except that
such new warrant shall be exercisable into the number of shares of
Common Stock with respect to which this Warrant shall remain
unexercised); provided, however , that the Holder shall be
entitled to exercise all or any portion of such new warrant at any
time following the time at which this Warrant is exercised,
regardless of whether the Company has actually issued such new
warrant or delivered to the Holder a certificate therefor.
2. Delivery of Warrant
Shares Upon Exercise . Upon receipt of a fax copy of an
Exercise Notice pursuant to Section 1 above, the
Company shall, (A) no later than the close of business on the
later to occur of (i) the third (3rd) Business Day following
the Exercise Date specified in such Exercise Notice and
(ii) such later date on which the Company shall have received
payment of the Exercise Price, and (B) with respect to Warrant
Shares that are the subject of a Dispute Procedure, the close of
business on the third (3rd) Business Day following the
determination made pursuant to Section 1(b)
(each of the dates specified in (A) or (B) being referred
to as a “ Delivery Date ”), issue and
deliver or caused to be delivered to the Holder the number of
Warrant Shares as shall be determined as provided herein. The
Company shall effect delivery of Warrant Shares to the Holder, as
long as the Company’s designated transfer agent (the “
Transfer Agent ”) participates in the
Depository Trust Company (“ DTC ”) Fast
Automated Securities Transfer program (“ FAST
”) and no restrictive legend is required pursuant to the
terms of this Warrant or the LOC Agreement, by crediting the
account of the Holder or its nominee at DTC (as specified in the
applicable Exercise Notice) with the number of Warrant Shares
required to be delivered, no later than the close of business on
such Delivery Date. In the event that the Transfer Agent is not a
participant in FAST or if the Holder so specifies in a Exercise
Notice or otherwise in writing on or before the Exercise Date, the
Company shall effect delivery of Warrant Shares by delivering to
the Holder or its nominee physical certificates representing such
Warrant Shares, no later than the close of business on such
Delivery Date. Warrant Shares delivered to the Holder shall not
contain any restrictive legend unless such legend is required
pursuant to the terms of the LOC Agreement.
3. Failure to Deliver
Warrant Shares .
(a) In the event that the
Company fails for any reason to deliver to the Holder the number of
Warrant Shares specified in the applicable Exercise Notice on or
before the Delivery Date therefor (an “ Exercise
Default ”), the Company shall pay to the Holder
payments (“ Exercise Default Payments ”)
in the amount of (i) (N/365) multiplied by (ii) the
aggregate Exercise Price of the Warrant Shares which are the
subject of such Exercise Default multiplied by
(iii) the lower of fifteen percent (15%) per annum and the
maximum rate permitted by applicable law (the “ Default
Interest Rate ”), where “N” equals the
number of days elapsed between the original Delivery Date of such
Warrant Shares and the date on which all of such Warrant Shares are
issued and delivered to the Holder. Cash amounts payable hereunder
shall be paid on or before the fifth (5th) Business Day of each
calendar month following the calendar month in which such amount
has accrued.
(b) In the event of an Exercise
Default, the Holder may, upon written notice to the Company (an
“ Exercise Default Notice ”), regain on
the date of such notice the rights of the Holder under the
exercised portion of this Warrant that is the subject of such
Exercise Default. In the event of such Exercise Default and
delivery of an Exercise Default Notice, the Holder shall retain all
of the Holder’s rights
