EXHIBIT 1.2
PLACEMENT AGENTS' WARRANT AGREEMENT
PLACEMENT AGENTS' WARRANT AGREEMENT, dated as of this ____ day
of May 1998, by and between Energy Conversion Devices, Inc. (the "Company"),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. ("JMS") and ▇▇▇▇▇ Securities Corporation ("▇▇▇▇▇"
and, together with JMS, collectively, the "Placement Agents").
W I T N E S S E T H:
WHEREAS, the Company proposes to make a public offering ("Offering") of
shares of its common stock, $.01 par value ("Common Stock") and common stock
purchase warrants ("Warrants"), each Warrant exercisable to purchase one share
of Common Stock, in units ("Units"), each Unit consisting of one share of Common
Stock
and one Warrant; and
WHEREAS, the Units have been registered under a registration statement on
Form S-3 declared effective by the Securities and Exchange Commission (the
"SEC") on May ___, 1998 (the "Registration Statement"); and
WHEREAS, in connection with the Offering, the Company has agreed to issue
to the Placement Agents, at $.01 per warrant, warrants to purchase an aggregate
of _____ units identical to the Units (such warrants, the "Placement Agent
Warrants", and the units purchasable upon exercise of the Placement Agent
Warrants, the "Underlying Units");
NOW, THEREFORE, the Placement Agents and Company hereby agree as follows:
SECTION 1. Definitions. The following terms as used in this Agreement
shall have the meanings set forth below:
(a) "Business Day" means a day other than a Saturday, Sunday
or other day on which banks in the State of New York are authorized by law to
remain closed;
(b) "Exercise Date" means the date on which the Company shall
have received both (i) a Placement Agent Warrant Certificate evidencing
Placement Agent Warrants, with the exercise form thereon duly executed, and (ii)
payment in cash, or by official bank or certified check made payable to the
Company, of an amount in lawful money of the United States of America equal to
the Exercise Price for the Underlying Units, plus transfer taxes, if any;
(c) "Exercise Price" means the purchase price for an
Underlying Unit payable upon exercise of a Placement Agent Warrant Certificate,
which price shall be $__________ per Unit, subject to adjustment as provided in
Section 4 hereof.
(d) "Placement Agent Warrant Certificate" means a certificate
evidencing Placement Agent Warrants substantially in the form of Exhibit A
hereto;
(e) "Holder"means a person or entity in whose name a Placement
Agent Warrant Certificate is registered upon the books to be maintained by the
Company for such purpose.
(f) "Notice Event" means (i) any authorization by the Company
of the issuance to all holders of shares of Common Stock of rights, options or
warrants to subscribe for or purchase shares of Common Stock or of any other
subscription rights or warrants, or (ii) any authorization by the Company of the
distribution to all holders of shares of Common Stock of evidences of its
indebtedness or assets (other than cash dividends or distributions payable out
of consolidated earnings or earned surplus or dividends payable in shares of
Common Stock), (iii) any consolidation or merger to which the Company is a party
and for which approval of stockholders of the Company is required, or of the
conveyance or transfer of the properties and assets of the Company substantially
as an entirety, or of any reclassification or change of Common Stock issuable
upon exercise of a Placement Agent Warrant (other than a change in par value, or
from par value to no par value. or from no par value to par value, or as a
result of a subdivision or combination), or a tender offer or exchange offer for
shares of Common Stock, (iv) any voluntary or involuntary dissolution,
liquidation or winding-up of the Company. or (v) any proposal by the Company to
take any other action that would require an adjustment, pursuant to Section 4
hereof, of the Exercise Price or in the number of Underlying Units deliverable
upon exercise of a Placement Agent Warrant Certificate;
(g) "Transfer Agent" means State Street Bank and Trust
Company, as transfer agent for the Common Stock;
(h) "Underlying Securities" means, collectively, the
Underlying Shares and Underlying Warrants constituting the Underlying Units;
(i) "Underlying Shares" means the shares of Common Stock,
subject to adjustment from time to time as provided herein, constituting part of
the Underlying Units;
(j) "Underlying Warrants" means the Warrants, subject to
adjustment from time to time as provided herein, constituting part of the
Underlying Units;
(k) "Underlying Warrant Shares" means the shares of Common
Stock issuable upon exercise of the Underlying Warrants;
(l) "Warrant Agent" means State Street Bank and Trust
Company, as warrant agent for the Warrants;
(m) "Warrant Agreement" means that Warrant Agreement, dated as
of the date hereof, by and between the Company and the Warrant Agent;
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SECTION 2. Exercise of Placement Agent Warrants.
(a) Time of Exercise. Subject to the provisions of Section 4
hereof, the Placement Agent Warrants may be exercised from time to time, upon
the terms and subject to the conditions set forth herein, on or after 9:00 am.,
New York City time, on the first anniversary hereof and at or before 5:00 pm.,
New York City time, on May __, 2003, at which time the Placement Agent Warrants
shall expire (the "Expiration Date"), or, if the Expiration Date is not a
Business Day, at or before 5:00 pm. on the next following Business Date.
(b) Manner of Exercise.
(i) The Placement Agent Warrants may be exercised by a Holder,
in whole or in part, to purchase Underlying Units in such amounts as may be
elected, upon surrender of the Placement Agent Warrant Certificate with the
subscription form thereon duly executed, to the Company at its corporate office
at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, together with the Exercise Price
for the number of Underlying Units to be purchased, in lawful money of the
United States, or by certified check or bank draft payable in United States
Dollars to the order of the Company and upon compliance with and subject to the
conditions set forth herein.
(ii) Upon receipt of a Placement Agent Warrant Certificate
with the subscription form thereon duly executed and accompanied by payment of
the Exercise Price for the number of Underlying Units subscribed for, the
Company, subject to Section 6(b), shall cause to be issued and delivered,
promptly to the Holder, certificates for the Underlying Securities in such
denominations as the Holder shall request.
(iii) In the event a Holder shall subscribe for less than all
of the Underlying Units purchasable, the Company shall execute a new Placement
Agent Warrant Certificate exercisable for the balance of the Underlying Units
purchasable and shall deliver such new Placement Agent Warrant Certificate to
the exercising Holder.
(iv) A Placement Agent Warrant Certificate shall be deemed to
have been exercised immediately prior to the close of business on the Exercise
Date, and the person entitled to receive the Underlying Units shall be treated
for all purposes as the holder of the Underlying Securities constituting such
Underlying Units as of the close of business on the Exercise Date.
(v) The Company covenants and agrees that it will pay, when
due and payable, any and all taxes that may be payable with respect to the issue
of the Placement Agent Warrants or the Underlying Securities deliverable upon
exercise thereof. The Company shall not, however, be required to pay any tax
that may be payable in
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respect of any transfer or assignment of Placement Agent Warrants or
the Underlying Securities.
SECTION 3. Covenants
(a) Reservation of Shares of Common Stock. The Company
covenants that it will at all times reserve and keep available, free from
preemptive rights, out of its authorized Common Stock, solely for the purpose of
issuance upon exercise of the Placement Agent Warrants and Underlying Warrants,
such number of shares of Common Stock as shall equal the aggregate of the
Underlying Shares and Underlying Warrant Shares and that the shares so reserved
shall, at the time of delivery, be duly and validly issued, fully paid,
nonassessable and free from all taxes, liens and charges with respect to the
issue thereof. The Company further covenants that the Underlying Warrants
issuable upon exercise of the Placement Agent Warrants shall be validly issued
and the legal, valid and binding obligations of the Company.
(b) Registration.
(i) The Company shall advise each Holder or its transferee,
whether the Holder holds a Placement Agent Warrant Placement Agent Warrant and
holds the Underlying Securities, by written notice at least four weeks prior to
the filing of any post-effective amendment to the Registration Statement or of
any new registration statement or post-effective amendment thereto covering any
securities of the Company for its own account or for the account of others and
will, for a period of four years commencing one year from the effective date of
the Registration Statement, upon the request of any such Holder, include in any
such post-effective amendment or registration statement, such information as may
be required to permit a public offering by such Holder of all or any of the
Underlying Securities or Underlying Warrant Shares (the "Registrable
Securities"). The Company shall supply prospectuses and such other documents as
the Holders may request in order to facilitate the public sale or other
disposition of the Registrable Securities, use its best efforts to register and
qualify the Registrable Securities for sale in such states as such Holders
designate and do any and all other acts and things which maybe necessary or
desirable to enable such Holders to consummate the public sale or other
disposition of the Registrable Securities, and shall indemnify the Holders in
the manner provided in subparagraph (c) below. The Holders shall furnish
information and indemnification as set forth in subparagraph (c) below except
that the maximum amount which may be recovered from any Holder shall be limited
to the amount of proceeds received by the Holder from the sale of the
Registrable Securities.
(ii) JMS may on one occasion subsequent to May ____, 1999 give
notice to the Company that it desires to register under
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the Act all or any of the Underlying Securities in which event the Company will
promptly and no later than 30 days after receipt of such notice, file a
post-effective amendment to the Registraiton Statement or a new registration
statement to the end that the Underlying Securities and/or Underling Warrant
Shares may be publicly sold as promptly as practicable thereafter, and the
Company will use its best efforts to cause such registration to become and
remain effective (including the taking of such steps as are necessary to obtain
the removal of any stop order); provided, that JMS shall furnish the Company
with appropriate information. Within ten days after receiving such notice, the
Company shall give notice to the other Holders advising that the Company is
proceeding with such post-effective amendment or registraiton statement and
offering to include therein the Underlying Securities and/or Underlying Warrant
Shares of such other Holders, provided that the Holders shall furnish the
Company with such appropriate information (relating to the intentions of such
Holders) in connection therewith as the Company shall reasonably request in
writing. All costs and expenses of such post-effective amendment or new
registration statement shall be borne by the Company, except that the Holders
shall bear the fees of their own counsel and any underwriting discounts or
commissions applicable to any of the securities sold by them. The Company will
maintain such registration statement or post-effective amendment current for a
period of at least six months (and for up to an additional three months if
requested bythe Holders) from the effective date thereof. The Company shall
supply prospectuses, and such other documents as the Holders may request in
order to facilitate the public sale or other disposition of the Registrable
Securities, use its best efforts to register and quality any of the Registrable
Securities for sale in such states as such Holders designate and furnish
indemnification in the manner provided below.
(c) Indemnification.
(i) In the event the Company shall file a post-effective
amendment to the Registration Statement or a new registraiton statement for the
public offering of the Underlying Securities and/or Underlying Warrant Shares,
the Company shall indemnify and hold harmless such Holder whose Underlying
Securities and/or Underlying Warrant Shares are included therein (such Holder
being hereinafter called the "Distributing Holder"), and each person, if any,
who controls (within the meaning of the Act) the Distributing Holder, and each
underwriter (within the meaning of the Act) of such securities and each person,
if any, who controls (within the meaning of the Act) any such underwriter,
against any losses, claims, damages or liabilities, joint or several, to which
the Distributing Holder, any such controlling person or any such underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in
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respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any materials fact contained in any such registraiton
statement or any preliminary prospectus or final prospectus constituting a part
thereof or any amendment or supplement thereto, or arise out of or are based
upon the omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; and will reimburse
the Distributing Holder and each such controlling person and underwriter for any
legal or other expenses reasonably incurred by the Distributing Holder or such
controlling person or underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in said
registraiton statement, said preliminary prospectus, said final prospectus or
said amendment or supplement in reliance upon and in conformity with written
information furnished by such Distributing Holder or any other Distributing
Holder, for use in the preparation thereof.
(ii) The Distributing Holder will indemnify and hold harmless
the Company, each of its directors, each of its officers who have signed said
registration statement and such officers who have signed said registraiton
statement and such amendments and supplements thereto, each person, if any, who
controls the Company (within the meaning of the Act) against any losses, claims,
damages or liabilities to which the Company or any such director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities arise out of or are based upon any
untrue or alleged untrue statement of any material fact contained in said
registration statement, said preliminary prospectus, said final prospectus, or
said amendment or supplement, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in said registraiton
statement, said preliminary prospectus, said final prospectus or said amendment
or supplement in reliance upon and in conformity with written information
furnished by such Distributing Holder for use in the preparation thereof; and
will reimburse the Company or any such director, officer or controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
(iii) Promptly after receipt by an indemnified party under
this subparagraph (c) of notice of the commencement of any
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action, such indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party, give the indemnifying party notice of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this subparagraph (c).
(iv) In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
subparagraph (c) for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
(d) SEC Reports. So long as the Placement Agent Warrants
remain outstanding, the Company shall cause copies of all quarterly and annual
financial reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 19334 ("SEC
Report") to be mailed to each Holder at his or her address appearing in the
register maintained by the Company for such purpose, in each case, within 15
days of filing with the SEC. If the Company is not subject to the requirements
of the aforesaid Section 13 or 15(d), the Company shall nevertheless continue to
cause SEC Reports, comparable to those which it would be required to file
pursuant to the aforesaid Section 13 or 15(d) if it were subject to the
requirements of either such Section, to be so filed with the SEC (but only if
the SEC permits such filings) and mailed to each Holder, in each case, within
the same time periods as would have applied (including under the preceding
sentence) had the Company been subject to the requirements of the aforesaid
Section 13 or 15(d).
SECTION 4. Adjustment of Exercise Price and Number of Underlying
Securities. The number of Underlying Securities purchasable upon the exercise of
the Placement Agent Warrants and the Exercise Price shall be subject to
adjustment from time to time as follows:
(a) Stock Splits, Combinations, etc. In case the Company shall
hereafter (i) pay a dividend or make a distribution on its Common Stock in
shares of its capital stock- (whether shares of Common Stock or of capital stock
of any other class), (ii) subdivide its outstanding shares of Common Stock,
(iii) combine its outstanding shares of Common Stock into a smaller number of
shares, or (iv) issue by reclassification of its shams of Common Stock any
shares of capital stock of the Company, the Exercise Price in effect and the
number of Underlying Shares issuable upon exercise of a Placement Agent Warrant
immediately prior to such action shall be adjusted so that the
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Holder shall be entitled to receive the number of shares of capital stock of the
Company at the same aggregate Exercise Price that the Holder would have owned
immediately following such action had such Placement Agent Warrant been
exercised immediately prior thereto. An adjustment made pursuant to this
paragraph shall become effective immediately after the record date in the case
of a dividend and shall become effective immediately after the effective date in
the case of a subdivision, combination or reclassification It as a result of an
adjustment made pursuant to this paragraph, the Holder thereafter shall become
entitled to receive shares of two or more classes of capital stock of the
Company, the Board of Directors of the Company (whose determination shall be
conclusive) shall determine the allocation of the adjusted Exercise Price
between or among shares of such classes of capital stock.
(b) Reclassification Combinations, Mergers. etc, In case of
any reclassification or change of outstanding shares of Common Stock issuable
upon exercise of the Placement Agent Warrants (other than as set forth in
paragraph (a) above and other than a change in par value, or from par value to
no par value, or from no par value to par value or as a result of a subdivision
or combination), or in case of any consolidation or merger of the Company with
or into another corporation or entity (other than a merger in which the Company
is the continuing corporation and which does not result in any reclassification
or change of the then outstanding shares of Common Stock or other capital stock
issuable upon exercise of the Placement Agent Warrants), or in the case of any
sale or conveyance of all or substantially all of the assets of the Company
followed by a related distribution to holders of shares of Common Stock of cash,
securities or other property, then as a condition of such reclassification,
change, consolidation, merger, or sale of assets, the Company or such a
successor corporation or entity, as the case may be, shall forthwith make lawful
and adequate provision whereby each Holder shall have the right thereafter to
receive on exercise of a Placement Agent Warrant the kind and amount of shares
of stock and other securities and property receivable upon such
reclassification, change. consolidation, merger, or sale of assets, by a holder
of the number of shares of Common Stock issuable upon exercise of such Placement
Agent Warrant immediately prior to such reclassification, change, consolidation,
merger, or sale of assets, and enter into a supplemental warrant agreement so
providing. Such provisions shall include provision for adjustments that shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Section 4. If the issuer of securities deliverable upon exercise of a
Placement Agent Warrant under the supplemental warrant agreement is an affiliate
of the formed or surviving corporation or other entity, that issuer shall join
in the supplemental warrant agreement. The above provisions of this subparagraph
(b) shall similarly apply to successive reclassifications and changes of shares
of Common Stock and to successive consolidations or mergers.
(c) In the event that at any time, as a result of an
adjustment made pursuant to this Section 4, each Holder shall become entitled to
receive any securities of the Company other than the Underlying Securities,
thereafter the number of such other securities so receivable upon exercise of a
Placement Agent Warrant and the Price applicable to such exercise shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the shares of Common
Stock contained in this Section 4.
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(d) Notice of Change in Exercise Price. Upon any adjustment of
the Exercise Price pursuant to Section 4, the Company shall promptly thereafter
(i) cause to be prepared a certificate of the President and Chief Financial
Officer of the Company setting forth the adjusted Exercise Price and, in
reasonable detail, the method of calculation and the facts upon which such
calculations are based, and setting forth the number of Underlying Securities
(or portion thereof) issuable after such adjustment, which certificate shall be
conclusive evidence of the correctness of the matters set forth therein absent
manifest error, provided that if a Holder reasonably requests, the Company shall
engage a firm of independent public accountants of recognized standing selected
by the Board of Directors of the Company (who may be the regular auditors of the
Company) to prepare and file such certificate in lieu of the certificate of the
President and Chief Financial Officer, in which case such certificate shall be
conclusive evidence of the matters set forth therein absent manifest error, and
(ii) send to each Holder at the address appearing on the registry books
maintained by the Company written notice of such adjustments by first-class
mail, postage prepaid.
(e) Notice of Certain Events. With respect to any Notice
Event, the Company shall cause to be given to each Holder at such Holder's
address appearing on the registry books maintained by the Company, at least 20
days prior to the applicable record date hereinafter specified, or promptly in
the case of events for which there is no record date, by first class mail,
postage prepaid, a written notice stating (i) the date as of which the holders
of record of the Common Stock entitled to receive any such rights, options,
warrants or distribution is to be determined, (ii) the initial expiration date
set forth in any tender offer or exchange offer for shares of Common Stock, or
(iii) the date on which any such consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up is expected to become effective or
consummated, and the date as of which it is expected that holders of record of
shares of Common Stock shall be entitled to exchange such shares for securities
or other property, if any, deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up. The failure to give the notice required by this subsection or any defect
therein shall not affect the legality or validity of any distribution, right,
option, warrant, consolidation, merger, conveyance, transfer, dissolution, or
liquidation or winding up, or the vote upon any action, provided that each
Holder shall retain any right to damages from the Company with respect to such
failure.
SECTION 5. Change in Number of the Underlying Warrants and the Underlying
Warrant Purchase Price. Under the Warrant Agreement, the Company may elect, upon
any adjustment of the exercise price of the Warrants, to adjust the number of
Warrants outstanding in lieu of adjusting the number of shares of Common Stock
purchasable upon the exercise of each Warrant, so that each Warrant outstanding
after such adjustment shall represent the right to purchase one share of Common
Stock. In such a case (i) the Underlying Warrant Purchase Price shall become
that price (calculated to the nearest 1/1,000 of one cent) determined by
multiplying the Underlying Warrant Purchase Price in effect immediately prior to
such adjustment by a fraction, the numerator of which shall be the exercise
price of the Warrants in effect immediately prior to such adjustment and the
denominator of which shall be the exercise price of the Warrants in
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effect immediately after such adjustment and (ii) each Underlying Warrant under
this Placement Agent Warrant that has not been purchased pursuant to the
exercise of such Placement Agent Warrant prior to such adjustment of the number
of Warrants shall become that number of Underlying Warrants (calculated to the
nearest tenth) determined by multiplying the number one by a fraction. the
numerator of which shall be the exercise price of the Warrants in effect
immediately prior to such adjustment and the denominator of which shall be the
exercise price of the Warrants in effect immediately after such adjustment. Upon
each adjustment of such Underlying warrants pursuant to this Section 5. the
Company shall, as promptly as practicable, cause to be distributed to each
Holder, on the date of such adjustment, Placement Agent Warrant Certificates
evidencing, subject to Section 6(b) hereof, the number of additional Underlying
Warrants to which such Holder shall be entitled as a result of such adjustment
or, at the option of the Company, cause to be distributed to such Holder in
substitution and replacement for the Placement Agent Warrant Certificates held
by such Holder prior to the date of adjustment (and upon surrender thereof, if
required by the Company) new Placement Agent Warrant Certificates evidencing the
number of Underlying Warrants to which such Holder shall be entitled after such
adjustment.
SECTION 6. Other-Provisions Relating to Rights of a Holder.
(a) Holder not Stockholder. A Holder, as such, shall not be
entitled to vote or receive dividends or be deemed a holder of Common Stock or
Warrants of the Company for any purpose, nor shall anything contained in this
Agreement be construed to confer upon the Holder, as such, any rights of a
holder of Common Stock or Warrants of the Company or the right to vote or give
or withhold consent to any action by the Company (whether upon any
recapitalization, issue of stock, reclassification of stock, consolidation,
merger, conveyance or otherwise), receive notice of meetings or other action
affecting holders of Common Stock or Warrants (except for notices provided for
in this Agreement), receive dividends or subscription rights, or otherwise until
the Underlying Units shall be deliverable upon exercise of the Placement Agent
Warrant Certificate.
(b) Fractional Shares or Warrants. Anything contained herein
to the contrary notwithstanding, the Company shall not be required to issue any
fractional shares of Underlying Shares or Underlying Warrants in connection with
the exercise of a Placement Agent Warrant Certificate. In any case where a
Holder would, except for the provisions of this Section 6(b), be entitled under
the terms of this Agreement to receive a fraction of an Underlying Share or
Underlying Warrant upon the exercise of a Placement Agent Warrant Certificate,
the Company shall round-up to the next highest Underlying Shares and the next
highest Underlying Warrant, as the case may be.
(c) Holder Absolute Owner. Prior to due presentment for
registration of transfer of any Placement Agent Warrant Certificate, the Company
may deem and treat the Holder as the absolute owner thereof.
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SECTION 7. Exchange and Transfer of Placement Agent Warrants
(a) Request. At the request of the Holder, a Placement Agent
Warrant Certificate may be divided split up, combined or exchanged for one or
more other Placement Agent Warrant Certificates of like tenor to purchase a like
aggregate number of Underlying Units. The request shall be in writing delivered
to the Company at its office in Troy, Michigan accompanied by the Placement
Agent Warrant Certificate[s] to be so divided, split up, combined or exchanged
at said office. Upon any such surrender, the Company shall execute and deliver
to the person entitled thereto new Placement Agent Warrant Certificate[s] as so
requested. The Company may require the surrendering Holder to pay a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection therewith.
(b) Assignment; Replacement of Placement Agent Warrant
Certificates. The Placement Agent Warrants may not be sold, transferred,
assigned, or hypothecated, in whole or in part, for a period of one year from
the effective date of the Offering, except to officers of the Placement Agents.
Thereafter, the Placement Agent Warrants may be sold, transferred, assigned or
hypothecated, in whole or in part, subject to federal and state securities laws.
Any permitted assignment shall be made by surrender of the Placement Agent
Warrant Certificate to the Company at its principal office with the form of
assignment attached thereto duly executed and with funds sufficient to pay any
transfer tax, in which event the Company shall, without charge, execute and
deliver a new Placement Agent Warrant Certificate in the name of the assignee so
named. Upon receipt by the Company of evidence satisfactory to it of the loss,
theft, destruction or mutilation of a Placement Agent Warrant Certificate and
(in the case of loss, theft or destruction) of reasonably satisfactory
indemnification, and (in the cast of mutilation) upon surrender and cancellation
of such Placement Agent Warrant Certificate, the Company will execute and
deliver a new Placement Agent Warrant Certificate of like tenor and date and any
such lost, stolen or destroyed Placement Agent Warrant Certificate shall
thereupon become void. Any such new Placement Agent Warrant Certificate executed
and delivered shall constitute an additional contractual obligation on the part
of the Company, whether or not the Placement Agent Warrant Certificate so lost,
stolen, destroyed or mutilated shall be at any time enforceable by anyone.
SECTION 8. Other Matters.
(a) Taxes and Charges. The Company will from time to time
promptly pay, subject to the provisions of paragraph (v) of Section 2(b), all
taxes and charges that may be imposed upon the Company in respect of the
issuance or delivery, but not the transfer, of the Placement Agent Warrants or
the Underlying Securities.
(b) Notices to Company. Notice or demand pursuant to this
Agreement to be given or made by a Holder to or on the Company shall be deemed
given or made if delivered or sent by registered or certified mail, postage
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prepaid, return receipt requested, and addressed, until another address is
designated in writing by the Company, or by facsimile transmission, as follows:
Energy Conversion Devices, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) Notices to the Placement Agents. Notice or demand pursuant
to this agreement to be given or made by the Company to the Placement Agents
shall be deemed given or made if delivered or sent by registered or certified
mail, postage prepaid, return receipt requested, and addressed, until another
address is designated in writing, or by facsimile transmission, as follows:
(i) if to JMS:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.26 ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to ▇▇▇▇▇:
▇▇▇▇▇ Securities, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
12
(d) Notices to Holders. Notice to Holders provided for in this
Agreement shall be deemed given or made by the Company if delivered or sent by
registered or certified mail, postage prepaid, return receipt requested, to the
Holder's address appearing on the registry books maintained by the Company for
Holders of Placement Agent Warrant Certificates.
(e) Governing Law. The validity, interpretation and
performance of this Agreement shall be governed by the laws of the State of New
York without giving effect to the conflicts of laws principles thereof.
(f) Exclusive Benefit. Nothing in this Agreement expressed or
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 Company, JMS, ▇▇▇▇▇, and the Placement Agents' Warrant Holders any
right, remedy or claim hereunder, and all covenants, conditions, stipulations,
promises and agreements contained in this Agreement shall be for the sole and
exclusive benefit of such persons and their successors, survivors and permitted
assigns hereunder. This Agreement is for the benefit of and is enforceable by
any subsequent Placement Agents' Warrant Holder.
(g) Headings. The article headings herein am for convenience
only and are not part of this Agreement and shall not affect the interpretation
hereof.
(THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first above written.
ENERGY CONVERSION DEVICES, INC.
By: --------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ INC.
By: --------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
▇▇▇▇▇ SECURITIES, CORPORATION
By: --------------------------------
Senior Vice President
14
EXHIBIT A
No.__________
PLACEMENT AGENTS' WARRANT CERTIFICATE
ENERGY CONVERSION DEVICES, INC.
This warrant certificate certifies that ______________________, or its
registered assigns, is the registered holder of a Placement Agent Warrant
representing the right to purchase _____ Units (the "Underlying Units") of
securities of Energy Conversion Devices, Inc. (the "company") each Underlying
Unit consisting of one share of the Company's common stock, $.01 par value (each
an Underlying Share and, collectively the "Underlying Shares") and one warrant
to purchase one share of the Company's common stock issuable under the Warrant
Agreement between the Company and State Street Bank and Trust Company as warrant
agent. (each an "Underlying Warrant" and, collectively, the "Underlying
Warrants"). This Placement
Agent Warrant expires on May ___, 2003 (the "Expiration Date".
This Placement Agent Warrant entitles the registered holder
(the"Holder") upon exercise from time to time from 9:00 am., New York City time
on or after May ____, 1999 until 5:00 p.m New York City time on the Expiration
Date to purchase Underlying Units at $_______ per Underlying Unit (the "Exercise
Price") in lawful money of the United States of America upon surrender of this
certificate and payment of the Exercise Price. The Exercise Price, and the
number of Underlying Shares and Underlying Warrants issuable upon exercise of
this Placement Agent Warrant are subject to adjustment upon the occurrence of
certain events set forth in the Placement Agents' Warrant Agreement.
This Placement Agent Warrant may not be exercised after 5:00 p.m. on
the Expiration Date and to the extent not exercised by such tirne shall become
void.
This warrant certificate shall be governed by and construed in
accordance with the internal laws of the State of New York.
IN WITNESS WHEREOF, Energy conversion Devices, Inc. has caused this
warrant certificate to be signed by its President and its Secretary.
Dated: ----------------
ENERGY CONVERSION DEVISIONS, INC.
------------------------------------
President
A-1
------------------------------------
Treasurer
A-2
FORM OF ASSIGNMENT
For value received, the undersigned hereby sells, assigns and
transfers unto ______________ whose address is ________________________and whose
social security or other identifying number is ______________________ the right
to purchase __________ Underlying Units evidenced by the within Placement Agent
Warrant, and hereby irrevocably constitutes and appoints the Secretary of the
Company as his, her or its attorney-in-fact to transfer the same on the books of
the Company with full power of substitution and resubstitution. If said number
of Underlying Units is less than all of the Underlying Units purchasable
hereunder, the undersigned requests that a new Placement Agent Warrant
Certificate representing the right to purchase the balance of such Underlying
Units be registered in the name of _______________ whose address is
________________ and whose social security or other identifying number is
_______________ and that such Placement Agent Warrant Certificate be delivered
to ___________ whose address is ______________________.
Dated: ----------
SUBSCRIPTION FORM
The undersigned hereby irrevocably elects to exercise the right,
represented by this Placement Agent Warrant Certificate, to purchase ________
Underlying Units and tenders payment herewith in the amount of $_______. The
undersigned requests that a certificate for the Underlying Shares and Underlying
Warrants constituting the Underlying Units be registered in the name of
____________, whose address is ___________________ and whose social security or
other identifying number is ______________. If said number of Underlying Sham
and/or Underlying Warrants is less than all of the Underlying Shares and/or
Underlying Warrants purchasable hereunder, the undersigned requests that a new
Placement Agent Warrant Certificate representing the right to purchase the
balance of such Underlying Shares and Underlying Warrants be registered in the
name of _______________________ whose address is ________________ and whose
social security or other identifying number is ____________ and that such
Placement Agent Warrant Certificate be delivered to ____________________, whose
address is ___________________.
Dated: ----------- ------------------------------------
Signature
A-3
