Unassociated Document


    

      Exhibit
        4.36

       

      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 __________ 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 fifth (5th)
        anniversary of the Issue Date (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 an Amendment
        Agreement, dated as of_________, 2007 (the “Amendment
        Agreement”).
        Capitalized terms used herein and not otherwise defined shall have the
        respective meanings set forth in the Amendment 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 forty cents ($0.40), 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

          
            

          

        

        
          
          

        

      

      


      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
        Amendment 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 Amendment
        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 and remedies with respect to the
        Company’s failure to deliver such Warrant Shares (including without limitation
        the right to receive the cash payments specified in Section
        3(a)
        above).

      


      (c)
         The
        Holder’s rights and remedies hereunder are cumulative, and no right or remedy is
        exclusive of any other. In addition to the amounts specified herein, the
        Holder
        shall have the right to pursue all other remedies available to it at law
        or in
        equity (including, without limitation, a decree of specific performance and/or
        injunctive relief). Nothing herein shall limit the Holder’s right to pursue
        actual damages for the Company’s failure to issue and deliver Warrant Shares on
        the applicable Delivery Date (including, without limitation, damages relating
        to
        any purchase of Common Stock by the Holder to make delivery on a sale effected
        in anticipation of receiving Warrant Shares upon exercise, such damages to
        be in
        an amount equal to (A) the aggregate amount paid by the Holder for the Common
        Stock so purchased minus
        (B) the
        aggregate amount of net proceeds, if any, received by the Holder from the
        sale
        of the Warrant Shares issued by the Company pursuant to such
        exercise).  

       

      
        
          
          

        

        
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      4.  Exercise
        Limitations.
        In
        no
        event shall a Holder be permitted to exercise
        this Warrant, or part hereof, if, upon such exercise, the number of shares
        of
        Common Stock beneficially owned by the Holder (other than shares which would
        otherwise be deemed beneficially owned except for being subject to a limitation
        on conversion or exercise analogous to the limitation contained in this
Section
        4),
        would
        exceed 4.99% of the number of shares of Common Stock then issued and
        outstanding. As used herein, beneficial ownership shall be determined in
        accordance with Section 13(d) of the Securities Exchange Act of 1934, as
        amended, and the rules thereunder. To the extent that the limitation contained
        in this Section
        4
        applies,
        the submission of an Exercise Notice by the Holder shall be deemed to be
        the
        Holder’s representation that this Warrant is exercisable pursuant to the terms
        hereof and the Company shall be entitled to rely on such representation without
        making any further inquiry as to whether this Section
        4
        applies.
        Nothing contained herein shall be deemed to restrict the right of a Holder
        to
        exercise this Warrant, or part thereof, at such time as such exercise will
        not
        violate the provisions of this Section
        4.
        This
Section
        4
        may not
        be amended unless such amendment is approved by the holders of a majority
        of the
        Common Stock then outstanding; provided,
        however,
        that
        the
        limitations contained in this Section
        4
        shall
        cease to apply upon sixty (60) days’ prior written notice from the Holder to the
        Company.

      


      5.
         [Intentionally
        Omitted] 

      


      6. Anti-Dilution
        Adjustments; Distributions; Other Events.
        The
        Exercise Price and the number of Warrant Shares issuable hereunder shall
        be
        subject to adjustment from time to time as provided in this Section
        6.
        In the
        event that any adjustment of the Exercise Price required herein results in
        a
        fraction of a cent, the Exercise Price shall be rounded up or down to the
        nearest one hundredth of a cent.

       

      (a) Subdivision
        or Combination of Common Stock.
        If the
        Company, at any time after the Issue Date, subdivides (by any stock split,
        stock
        dividend, recapitalization, reorganization, reclassification or otherwise)
        the
        outstanding shares of Common Stock into a greater number of shares, then
        effective upon the close of business on the record date for effecting such
        subdivision, the Exercise Price in effect immediately prior to such subdivision
        will be proportionately reduced. If the Company, at any time after the Issue
        Date, combines (by reverse stock split, recapitalization, reorganization,
        reclassification or otherwise) the outstanding shares of Common Stock into
        a
        smaller number of shares, then, effective upon the close of business on the
        record date for effecting such combination, the Exercise Price in effect
        immediately prior to such combination will be proportionally
        increased.

       

      
        
          
          

        

        
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      (b)
         Distributions.
        If, at
        any time after the Issue Date, the Company declares or makes any distribution
        of
        cash or any other assets (or rights to acquire such assets) to holders of
        Common
        Stock, as a partial liquidating dividend or otherwise, including without
        limitation any dividend or distribution to the Company’s shareholders in shares
        (or rights to acquire shares) of capital stock of a subsidiary) (a “Distribution”),
        the
        Company shall deliver written notice of such Distribution (a “Distribution
        Notice”)
        to the
        Holder at least thirty (30) days prior to the earlier to occur of (i) the
        record
        date for determining shareholders entitled to such Distribution (the
“Record
        Date”)
        and
        (ii) the date on which such Distribution is made (the “Distribution
        Date”)
        (the
        earlier of such dates being referred to as the “Determination
        Date”).
        In
        the Distribution Notice to a Holder, the Company shall indicate whether the
        Company has elected (A) to deliver to such Holder, upon any exercise of this
        Warrant after the Determination Date, the same amount and type of assets
        being
        distributed in such Distribution as though the Holder were, on the Determination
        Date, a holder of a number of shares of Common Stock into which this Warrant
        is
        exercisable as of such Determination Date (such number of shares to be
        determined at the Exercise Price then in effect and without giving effect
        to any
        limitations on such exercise) or (B) upon any exercise of this Warrant on
        or
        after the Determination Date, to reduce the Exercise Price applicable to
        such
        exercise by reducing the Exercise Price in effect on the Business Day
        immediately preceding the Record Date by an amount equal to the fair market
        value of the assets to be distributed divided by the number of shares of
        Common
        Stock as to which such Distribution is to be made, such fair market value
        to be
        reasonably determined in good faith by the Company’s Board of Directors. If the
        Company does not notify the Holders of its election pursuant to the preceding
        sentence on or prior to the Determination Date, the Company shall be deemed
        to
        have elected clause (A) of the preceding sentence.

       

      (c)
         Adjustments;
        Additional Shares, Securities or Assets.
        In the
        event that at any time, as a result of an adjustment made pursuant to this
        Section
        6,
        the
        Holder of this Warrant shall, upon exercise of this Warrant, become entitled
        to
        receive securities or assets (other than Common Stock) then, wherever
        appropriate, all references herein to shares of Common Stock shall be deemed
        to
        refer to and include such shares and/or other securities or assets; and
        thereafter the number of such shares and/or other securities or assets shall
        be
        subject to adjustment from time to time in a manner and upon terms as nearly
        equivalent as practicable to the provisions of this Section
        6.
        Any
        adjustment made pursuant to Section
        6(a)
        that
        results in a decrease or an increase in the Exercise Price shall also effect
        a
        proportional increase or decrease, as the case may be, in the number of shares
        of Common Stock into which this Warrant is exercisable.

      


      7. Fractional
        Interests.

      


      No
        fractional shares or scrip representing fractional shares shall be issuable
        upon
        the exercise of this Warrant, but on exercise of this Warrant, the Holder
        hereof
        may purchase only a whole number of shares of Common Stock. If, on exercise
        of
        this Warrant, the Holder hereof would be entitled to a fractional share of
        Common Stock or a right to acquire a fractional share of Common Stock, the
        Company shall, in lieu of issuing any such fractional share, pay to the Holder
        an amount in cash equal to the product resulting from multiplying such fraction
        by the Market Price as of the Exercise Date. 

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

       

      8. Transfer
        of this Warrant.
        

      


      The
        Holder may sell, transfer, assign, pledge or otherwise dispose of this Warrant,
        in whole or in part, as long as such sale or other disposition is made pursuant
        to an effective registration statement or an exemption from the registration
        requirements of the Securities Act. Upon such transfer or other disposition
        (other than a pledge), the Holder shall deliver this Warrant to the Company
        together with a written notice to the Company, substantially in the form
        of the
        Transfer Notice attached hereto as Exhibit
        B
        (the
“Transfer
        Notice”),
        indicating the person or persons to whom this Warrant shall be transferred
        and,
        if less than all of this Warrant is transferred, the number of Warrant Shares
        to
        be covered by the part of this Warrant to be transferred to each such person.
        Within three (3) Business Days of receiving a Transfer Notice and the original
        of this Warrant, the Company shall deliver to the each transferee designated
        by
        the Holder a Warrant or Warrants of like tenor and terms for the appropriate
        number of Warrant Shares and, if less than all this Warrant is transferred,
        shall deliver to the Holder a Warrant for the remaining number of Warrant
        Shares. 

      


      9. Benefits
        of this Warrant.

      


      This
        Warrant shall be for the sole and exclusive benefit of the Holder of this
        Warrant and nothing in this Warrant shall be construed to confer upon any
        person
        other than the Holder of this Warrant any legal or equitable right, remedy
        or
        claim hereunder.

      


      10. Loss,
        theft, destruction or mutilation of Warrant.

      


      Upon
        receipt by the Company of evidence of the loss, theft, destruction or mutilation
        of this Warrant, and (in the case of loss, theft or destruction) of indemnity
        reasonably satisfactory to the Company, and upon surrender of this Warrant,
        if
        mutilated, the Company shall execute and deliver a new Warrant of like tenor
        and
        date.

      


      11. Notice
        or Demands.

       

      Any
        notice, demand or request required or permitted to be given by the Company
        or
        the Holder pursuant to the terms of this Warrant shall be in writing and
        shall
        be deemed delivered (i) when delivered personally or by verifiable facsimile
        transmission, unless such delivery is made on a day that is not a Business
        Day,
        in which case such delivery will be deemed to be made on the next succeeding
        Business Day, (ii) on the next Business Day after timely delivery to an
        overnight courier and (iii) on the Business Day actually received if deposited
        in the U.S. mail (certified or registered mail, return receipt requested,
        postage prepaid), addressed as follows:

       

      If
        to
        the Company:

      


      Ener1,
        Inc.

      500
        West
        Cypress Creek Road

      Suite
        100

      Fort
        Lauderdale, FL  33309

      Attn:
         Chief
        Financial Officer

      Tel: 954
        556-4020

      Fax: 954
        556-4031

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

       

      with
        a copy (which
        shall not constitute notice) to:

      


      Mazzeo
        Song LLP

      708
        Third
        Avenue

      19th
        Floor

      New
        York,
        New York 10017

      Tel: (212)
        599-0700

      Fax: (212)
        599-8400

      


      and
        if to
        a Holder, to such address for such party as shall appear on the records of
        the
        Company. Any
        party
        may change its address for notice by sending notice in accordance with this
        Section
        11.
        

      


      12. Applicable
        Law.

      


      This
        Warrant is issued under and shall for all purposes be governed by and construed
        in accordance with the laws of the State of New York applicable to contracts
        made and to be performed entirely within the State of New York.
        Each
        party hereby irrevocably submits to the exclusive jurisdiction of the state
        and
        federal courts sitting in the City and County of New York for the adjudication
        of any dispute hereunder or in connection herewith or with any transaction
        contemplated hereby, 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
        brought in an inconvenient forum or that the venue of 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 in effect
        for
        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.

      


      13. Amendments.

       

      No
        amendment, modification or other change to, or waiver of any provision of,
        this
        Warrant may be made unless such amendment, modification or change is set
        forth
        in writing and is signed by the Company and the Holder.

      


      14. Entire
        Agreement.
         

       

      This
        Warrant constitutes the entire agreement among the parties hereto with respect
        to the subject matter hereof. There are no restrictions, promises, warranties
        or
        undertakings, other than those set forth or referred to herein and therein.
        This
        Warrant supersedes all prior agreements and understandings among the parties
        hereto with respect to the subject matter hereof.

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

       

      15. Headings.
        

       

      The
        headings in this Agreement are for convenience of reference only and shall
        not
        limit or otherwise affect the meaning hereof.

      


      [Signature
        Page to Follow]

       

      
        
          
          

        

        
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      IN
        WITNESS WHEREOF, the Company has duly executed and delivered this Warrant
        as of
        the Issue Date.

       

      
        	 	 	 
	 	ENER1,
                INC.
	 
 	 
 	 
 
	 	By:  	 
	 	
                
Name:
	 	Title 


      


      
        
          
          

        

        
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      EXHIBIT
        A to WARRANT

       

      EXERCISE
        NOTICE

       

      The
        undersigned Holder hereby irrevocably exercises the right to
        purchase  __________
        shares of Common Stock (“Warrant
        Shares”)
        of
        Ener1, Inc. (the “Company”) evidenced
        by the attached Warrant (the “Warrant”).
        The
        Holder shall pay the sum of $________________ to the Company in accordance
        with
        the terms of the Warrant.

       

      


      Date:
        ______________________

      


      


      ___________________________________

      Name
        of
        Registered Holder

      


      By:
        _______________________________

      Name:

      Title:

       

      
        
          
          

        

        
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      EXHIBIT
        B to WARRANT

       

      TRANSFER
        NOTICE

       

      FOR
        VALUE
        RECEIVED, the undersigned Holder of the attached Warrant hereby sells, assigns
        and transfers unto the person or persons named below the right to
        purchase ___________ shares
        of
        the Common Stock of _____________________ evidenced by the attached
        Warrant.

      


      


      Date:
        ______________________

      


      


      ___________________________________

      Name
        of
        Registered Holder

      


      By:
        _______________________________

      Name:

      Title:

      


      Transferee
        Name and Address:

      ___________________________________

       

      ___________________________________

       

      ___________________________________

       

      
        
          
          

        

        
          11