Exhibit 4.9
THIS WARRANT HAS NOT BEEN
REGISTERED
UNDER THE SECURITIES ACT OF 1933
AND IS NOT TRANSFERABLE
EXCEPT AS PROVIDED HEREIN
Lumera Corporation
PURCHASE WARRANT
Issued to:
[ ]
Exercisable to Purchase
[ ]
Shares of Common Stock
of
LUMERA CORPORATION
Void after
,
2009
This is to certify that, for value
received and subject to the terms and conditions set forth below,
the Warrantholder (as defined below) is entitled to purchase, and
the Company promises and agrees to sell and issue to the
Warrantholder, at any time on or after
,
2005 and on or before
,
2009, up to
[ ]
Shares (as defined below) at a per share exercise price equal to
the Exercise Price (as defined below).
This Warrant Certificate is issued
subject to the following terms and conditions:
1. Definitions . Except as
may be otherwise clearly required by the context, the following
terms have the following meanings:
(a) “ Act ” means
the Securities Act of 1933, as amended.
(b) “ Average Closing
Price ” means, as of any date, the average of the closing
prices of a Security for the 20 consecutive trading days
immediately preceding such date.
(c) “ Cashless Exercise
” means an exercise of Warrants in which, in lieu of payment
of the Exercise Price, the Holder elects to receive a lesser number
of Securities such that the value of the Securities that such
Holder would otherwise have been entitled to receive but has agreed
not to receive, as determined by the closing price of such
Securities on the date of exercise or, if such date is not a
trading day, on the next prior trading day, is equal to the
aggregate Exercise Price with respect to such exercise. A Holder
may only elect a Cashless Exercise if Securities issuable by the
Company on such exercise are publicly traded securities.
(d) “ Closing Date
” means the date on which the Offering is closed.
(e) “ Commission
” means the Securities and Exchange Commission.
(f) “ Common Stock
” means the common stock, $0.001 par value, of the
Company.
(g) “ Company ”
means Lumera Corporation, a Delaware corporation.
(h) “ Company’s
Expenses ” means any and all expenses payable by the
Company or the Warrantholder in connection with an offering
described in Section 6 hereof, except Warrantholder’s
Expenses.
(i) “ Effective Date
” means the date on which the Registration Statement is
declared effective by the Commission.
(j) “ Exercise Price
” means the price at which the Warrantholder may purchase one
Share upon exercise of Warrants as determined from time to time
pursuant to the provisions hereof. The initial Exercise Price is
$8.34 per Share.
(k) “ Offering ”
means the public offering of Shares made pursuant to the
Registration Statement.
(l) “ Participating
Underwriter ” means any underwriter participating in the
sale of the Securities pursuant to a registration under
Section 6 of this Warrant Certificate.
(m) “ Registration
Statement ” means the Company’s registration
statement (File No. 333 -115650) as amended through the
Closing Date.
(n) “ Rules and
Regulations ” means the rules and regulations of the
Commission adopted under the Act.
(o) “ Securities
” means the securities obtained or obtainable upon exercise
of the Warrant or securities obtained or obtainable upon exercise,
exchange, or conversion of such securities.
(p) “ Share ”
means a share of Common Stock.
(q) “ Warrant
Certificate ” means a certificate evidencing the
Warrant.
(r) “ Warrantholder
” means a record holder of the Warrant or Securities. The
initial Warrantholder is
[ ].
(s) “ Warrantholder’s
Expenses ” means the sum of (i) the aggregate amount
of cash payments made to an underwriter, underwriting syndicate, or
agent in connection with an offering described in Section 6
hereof multiplied by a fraction the numerator of which is the
aggregate sales price of the Securities sold by such underwriter,
underwriting syndicate, or agent in such offering and the
denominator of which is the aggregate sales price of all of the
securities sold by such underwriter, underwriting syndicate, or
agent in such offering and (ii) all out-of-pocket expenses of
the Warrantholder, except for the fees and disbursements of one
firm retained as legal counsel for the Warrantholder that will be
paid by the Company.
(t) “ Warrant ”
means the warrant evidenced by this certificate, any similar
certificate issued in connection with the Offering, or any
certificate obtained upon transfer or partial exercise of the
Warrant evidenced by any such certificate.
2. Exercise of Warrant . All
or any part of the Warrant represented by this Warrant Certificate
may be exercised commencing on the first anniversary of the
Effective Date and ending at 5 p.m. Pacific Time on the fifth
anniversary of the Effective Date by surrendering this Warrant
Certificate, together with appropriate instructions, duly executed
by the Warrantholder or by its duly authorized attorney, at the
office of the Company, 19910 North Creek Parkway, Bothell,
Washington 98041; or at such other office or agency as the Company
may designate. The date on which such instructions are received by
the Company shall be the date of exercise. If the Holder has
elected a Cashless Exercise, such instructions shall so state. Upon
receipt of notice of exercise, the Company shall immediately
instruct its transfer agent to prepare certificates for the
Securities to be received by the Warrantholder upon completion of
the Warrant exercise. When such certificates are prepared, the
Company shall notify the Warrantholder and deliver such
certificates to the Warrantholder or as per the
Warrantholder’s instructions immediately upon payment in full
by the Warrantholder, in lawful money of the United States, of the
Exercise Price payable with respect to the Securities being
purchased, if any. If the Warrantholder shall represent and warrant
that all applicable registration and
prospectus delivery requirements for their sale
have been complied with upon sale of the Securities received upon
exercise of the Warrant, such certificates shall not bear a legend
with respect to the Securities Act of 1933.
If fewer than all the Securities
purchasable under the Warrant are purchased, the Company will, upon
such partial exercise, execute and deliver to the Warrantholder a
new Warrant Certificate (dated the date hereof), in form and tenor
similar to this Warrant Certificate, evidencing that portion of the
Warrant not exercised. The Securities to be obtained on exercise of
the Warrant will be deemed to have been issued, and any person
exercising the Warrants will be deemed to have become a holder of
record of those Securities, as of the date of the payment of the
Exercise Price.
3. Adjustments in Certain
Events . The number, class, and price of Securities for which
this Warrant Certificate may be exercised are subject to adjustment
from time to time upon the happening of certain events as
follows:
(a) If the outstanding shares of the
Company’s Common Stock are divided into a greater number of
shares or a dividend in Common Stock is paid on the Common Stock,
the number of Shares for which the Warrant is then exercisable will
be proportionately increased and the Exercise Price will be
proportionately reduced; and, conversely, if the outstanding shares
of Common Stock are combined into a smaller number of shares of
Common Stock, the number of Shares for which the Warrant is then
exercisable will be proportionately reduced and the Exercise Price
will be proportionately increased. The increases and reductions
provided for in this Section 3(a) will be made with the intent
and, as nearly as practicable, the effect that neither the
percentage of the total equity of the Company obtainable on
exercise of the Warrants nor the price payable for such percentage
upon such exercise will be affected by any event described in this
Section 3(a).
(b) In case of any change in the
Common Stock through merger, consolidation, reclassification,
reorganization, partial or complete liquidation, purchase of
substantially all the assets of the Company, or other change in the
capital structure of the Company, then, as a condition of such
change, lawful and adequate provision will be made so that the
holder of this Warrant Certificate will have the right thereafter
to receive upon the exercise of the Warrant the kind and amount of
shares of stock or other securities or property to which it would
have been entitled if, immediately prior to such event, it had held
the number of Shares k obtainable upon the exercise of the Warrant.
In any such case, appropriate adjustment will be made in the
application of the provisions set forth herein with respect to the
rights and interest thereafter of the Warrantholder, to the end
that the provisions set forth herein will thereafter be applicable,
as nearly as reasonably may be, in relation to any shares of stock
or other property thereafter deliverable upon the exercise of the
Warrant. The Company will not permit any change in its capital
structure to occur unless the issuer of the shares of stock or
other securities to be received by the holder of this Warrant
Certificate, if not the Company, agrees to be bound by and comply
with the provisions of this Warrant Certificate.
(c) When any adjustment is required
to be made in the number of shares of Common Stock, other
securities, or the property purchasable upon exercise of the
Warrant, the Company will promptly determine the new number of such
shares or other
