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Exhibit 4.8
THE ISSUANCE OF THE SECURITIES EVIDENCED
HEREBY WAS NOT REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER ANY STATE OR OTHER SECURITIES LAWS. NEITHER THE
SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF EXCEPT
(i) PURSUANT TO EFFECTIVE REGISTRATIONS UNDER APPLICABLE
SECURITIES LAWS, OR (ii) UPON DELIVERY TO THE COMPANY
OF AN OPINION OF COUNSEL (OR OTHER EVIDENCE SATISFACTORY TO
THE COMPANY), ACCEPTABLE TO THE COMPANY, THAT THE PROPOSED
DISPOSITION MAY BE EFFECTED IN COMPLIANCE WITH APPLICABLE
SECURITIES LAWS WITHOUT REGISTRATION.
RUBICON TECHNOLOGY,
INC.
WARRANT TO PURCHASE 8,929
SHARES
OF SERIES B PREFERRED
STOCK
THIS CERTIFIES THAT, for
value received, GATX VENTURES, INC. and its assignees are entitled
to subscribe for and purchase 8,929 shares of the fully paid and
nonassessable Series B Preferred Stock (as adjusted pursuant to
Section 4 hereof, the “ Shares ”) of
RUBICON TECHNOLOGY, INC., a Delaware corporation (the “
Company ”), at the price of $0.56 per share (such
price and such other price as shall result, from time to time, from
the adjustments specified in Section 4 hereof is herein
referred to as the “ Warrant Price ”), subject
to the provisions and upon the terms and conditions hereinafter set
forth. As used herein, (a) the term “ Series
Preferred ” shall mean the Company’s presently
authorized Series B Preferred Stock, and any stock into or for
which such Series B Preferred Stock may hereafter be converted or
exchanged, and after the automatic conversion of the Series B
Preferred Stock to Common Stock shall mean the Company’s
Common Stock, (b) the term “ Date of Grant
” shall mean July 10, 2002, and (c) the term “
Other Warrants ” shall mean any other warrants issued
by the Company in connection with the transaction with respect to
which this Warrant was issued, and any warrant issued upon transfer
or partial exercise of or in lieu of this Warrant. The term “
Warrant ” as used herein shall be deemed to include
Other Warrants unless the context clearly requires
otherwise.
1. Term . The purchase
right represented by this Warrant is exercisable, in whole or in
part, at any time and from time to time from the Date of Grant
through the later of (i) ten (10) years after the Date of
Grant or (ii) five (5) years after the closing of the
Company’s initial public offering of its Common Stock
(“ IPO ”) effected pursuant to a Registration
Statement on Form S-1 (or its successor) filed under the
Securities Act of 1933, as amended (the “ Act
”).
2. Method of Exercise;
Payment; Issuance of New Warrant . Subject to
Section 1 hereof, the purchase right represented by
this Warrant may be exercised by the holder hereof, in whole or in
part and from time to time, at the election of the holder hereof,
by (a) the surrender of this Warrant (with the notice of
exercise substantially in the form attached hereto as
Exhibit A-1 duly completed and executed) at the
principal office of the Company and by the payment to the Company,
by
certified or bank check, or by wire
transfer to an account designated by the Company (a “ Wire
Transfer ”) of an amount equal to the then applicable
Warrant Price multiplied by the number of Shares then being
purchased; (b) if in connection with a registered public
offering of the Company’s securities, the surrender of this
Warrant (with the notice of exercise form attached hereto as
Exhibit A-2 duly completed and executed) at the
principal office of the Company together with notice of
arrangements reasonably satisfactory to the Company for payment to
the Company either by certified or bank check or by Wire Transfer
from the proceeds of the sale of shares to be sold by the holder in
such public offering of an amount equal to the then applicable
Warrant Price per share multiplied by the number of Shares then
being purchased; or (c) exercise of the “net
issuance” right provided for in Section 10.2
hereof. The person or persons in whose name(s) any certificate(s)
representing shares of Series Preferred shall be issuable upon
exercise of this Warrant shall be deemed to have become the
holder(s) of record of, and shall be treated for all purposes as
the record holder(s) of, the shares represented thereby (and such
shares shall be deemed to have been issued) immediately prior to
the close of business on the date or dates upon which this Warrant
is exercised. In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of stock
so purchased shall be delivered to the holder hereof as soon as
possible and in any event within thirty (30) days after such
exercise and, unless this Warrant has been fully exercised or
expired, a new Warrant representing the portion of the Shares, if
any, with respect to which this Warrant shall not then have been
exercised shall also be issued to the holder hereof as soon as
possible and in any event within such thirty-day period;
provided that at such time as the Company is subject
to the reporting requirements of the Securities Exchange Act
of 1934, as amended, if requested by the holder of this
Warrant, the Company shall cause its transfer agent to deliver the
certificate representing Shares issued upon exercise of this
Warrant to a broker or other person (as directed by the holder
exercising this Warrant) within the time period required to settle
any trade made by the holder after exercise of this
Warrant.
3. Stock Fully Paid;
Reservation of Shares . All Shares that may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance pursuant to the terms and conditions herein, be fully paid
and nonassessable, and free from all preemptive rights and taxes,
liens and charges with respect to the issue thereof. During the
period within which the rights represented by this Warrant may be
exercised, the Company will at all times have authorized, and
reserved for the purpose of the issue upon exercise of the purchase
rights evidenced by this Warrant, a sufficient number of shares of
its Series Preferred to provide for the exercise of the rights
represented by this Warrant and a sufficient number of shares of
its Common Stock to provide for the conversion of the Series
Preferred into Common Stock.
4. Adjustment of Warrant
Price and Number of Shares . The number and kind of securities
purchasable upon the exercise of this Warrant and the Warrant Price
shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) Reclassification or
Merger . In case of any reclassification or change of
securities of the class issuable upon exercise of this 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 in case of any merger of the
Company with or into another corporation (other than a merger with
another corporation in which the Company is the acquiring and the
surviving
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corporation and which does not result in
any reclassification or change of outstanding securities issuable
upon exercise of this Warrant), or in case of any sale of all or
substantially all of the assets of the Company, the Company, or
such successor or purchasing corporation, as the case may be, shall
duly execute and deliver to the holder of this Warrant a new
Warrant (in form and substance satisfactory to the holder of this
Warrant), or the Company shall make appropriate provision without
the issuance of a new Warrant, so that the holder of this Warrant
shall have the right to receive upon exercise of this Warrant, at a
total purchase price not to exceed that payable upon the exercise
of the unexercised portion of this Warrant, and in lieu of the
shares of Series Preferred theretofore issuable upon exercise of
this Warrant, (i) the kind and amount of shares of stock,
other securities, money and property receivable upon such
reclassification, change, merger or sale by a holder of the number
of shares of Series Preferred then purchasable under this Warrant,
or (ii) in the case of such a merger or sale in which the
consideration paid consists all or in part of assets other than
securities of the successor or purchasing corporation, at the
option of the Company and with the concurrence of the holder of
this Warrant, the securities of the successor or purchasing
corporation having a value at the time of the transaction
equivalent to the value of the Series Preferred purchasable upon
exercise of this Warrant at the time of the transaction. Any new
Warrant shall provide for adjustments that shall be as nearly
equivalent as may be practicable to the adjustments provided for in
this Section 4 . The provisions of this
Section 4(a) shall similarly apply to successive
reclassifications, changes, mergers and sales.
(b) Subdivision or
Combination of Shares . If the Company at any time while this
Warrant remains outstanding and unexpired shall subdivide or
combine its outstanding shares of Series Preferred, the Warrant
Price shall be proportionately decreased and the number of Shares
issuable hereunder shall be proportionately increased in the case
of a subdivision and the Warrant Price shall be proportionately
increased and the number of Shares issuable hereunder shall be
proportionately decreased in the case of a combination.
(c) Stock Dividends and
Other Distributions . If the Company at any time while this
Warrant is outstanding and unexpired shall (i) pay a dividend
with respect to Series Preferred payable in Series Preferred, then
the Warrant Price shall be adjusted, from and after the date of
determination of shareholders entitled to receive such dividend or
distribution, to that price determined by multiplying the Warrant
Price in effect immediately prior to such date of determination by
a fraction (A) the numerator of which shall be the total
number of shares of Series Preferred outstanding immediately prior
to such dividend or distribution, and (B) the denominator of
which shall be the total number of shares of Series Preferred
outstanding immediately after such dividend or distribution; or
(ii) make any other distribution with respect to Series
Preferred (except any distribution specifically provided for in
Sections 4(a) and 4(b) ), then, in each such case,
provision shall be made by the Company such that the holder of this
Warrant shall receive upon exercise of this Warrant a proportionate
share of any such dividend or distribution as though it were the
holder of the Series Preferred (or Common Stock issuable upon
conversion thereof) as of the record date fixed for the
determination of the shareholders of the Company entitled to
receive such dividend or distribution.
(d) Adjustment of Number
of Shares . Upon each adjustment in the Warrant Price, the
number of Shares of Series Preferred purchasable hereunder shall be
adjusted, to the
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nearest whole share, to the product
obtained by multiplying the number of Shares purchasable
immediately prior to such adjustment in the Warrant Price by a
fraction, the numerator of which shall be the Warrant Price
immediately prior to such adjustment and the denominator of which
shall be the Warrant Price immediately thereafter.
(e) Antidilution
Rights . The other antidilution rights applicable to the Shares
of Series Preferred purchasable hereunder are set forth in the
Company’s Certificate of Incorporation, as amended through
the Date of Grant, a true and complete copy of which is attached
hereto as Exhibit B (the “ Charter ”). Such
antidilution rights shall not be restated, amended, modified or
waived in any manner that is adverse to the holder hereof in a
manner different than the other holders of Series Preferred (other
than differences resulting solely from the number of shares held)
without such holder’s prior written consent. The Company
shall promptly provide the holder hereof with any restatement,
amendment, modification or waiver of the Charter promptly after the
same has been made.
5. Notice of
Adjustments . Whenever the Warrant Price or the number of
Shares purchasable hereunder shall be adjusted pursuant to
Section 4 hereof, the Company shall make a certificate
signed by its chief financial officer or chief executive officer
setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such
adjustment was calculated, and the Warrant Price and the number of
Shares purchasable hereunder after giving effect to such
adjustment, and shall cause copies of such certificate to be mailed
(without regard to Section 13 hereof, by first class
mail, postage prepaid) to the holder of this Warrant. In addition,
whenever the conversion price or conversion ratio of the Series
Preferred shall be adjusted, the Company shall make a certificate
signed by its chief financial officer or chief executive officer
setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such
adjustment was calculated, and the conversion price or ratio of the
Series Preferred after giving effect to such adjustment, and shall
cause copies of such certificate to be mailed (without regard to
Section 13 hereof, by first class mail, postage
prepaid) to the holder of this Warrant.
6. Fractional Shares .
No fractional shares of Series Preferred will be issued in
connection with any exercise hereunder, but in lieu of such
fractional shares the Company shall make a cash payment therefor
based on the fair market value of the Series Preferred on the date
of exercise as reasonably determined in good faith by the
Company’s Board of Directors.
7. Compliance with Act;
Disposition of Warrant or Shares of Series Preferred
.
(a) Compliance with
Act . The holder of this Warrant, by acceptance hereof, agrees
that this Warrant, and the shares of Series Preferred to be issued
upon exercise hereof and any Common Stock issued upon conversion
thereof are being acquired for investment and that such holder will
not offer, sell or otherwise dispose of this Warrant, or any shares
of Series Preferred to be issued upon exercise hereof or any Common
Stock issued upon conversion thereof except under circumstances
which will not result in a violation of the Act or any applicable
state securities laws. Upon exercise of this Warrant, unless the
Shares being acquired are registered under the Act and any
applicable state securities laws or an exemption from such
registration is available, the holder hereof
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shall confirm in writing that the shares
of Series Preferred so purchased (and any shares of Common Stock
issued upon conversion thereof) are being acquired for investment
and not with a view toward distribution or resale in violation of
the Act and shall confirm such other matters related thereto as may
be reasonably requested by the Company. This Warrant and all shares
of Series Preferred issued upon exercise of this Warrant and all
shares of Common Stock issued upon conversion thereof (unless
registered under the Act and any applicable state securities laws)
shall be stamped or imprinted with a legend in substantially the
following form:
“THE ISSUANCE OF THE
SECURITIES EVIDENCED HEREBY WAS NOT REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNDER ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THE SECURITIES NOR ANY INTEREST THEREIN
MAY BE OFFERRED, SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED
OF EXCEPT (i) PURSUANT TO EFFECTIVE REGISTRATIONS UNDER
APPLICABLE SECURITIES LAWS, OR (ii) UPON DELIVERY TO THE
COMPANY OF AN OPINION OF COUNSEL (OR OTHER EVIDENCE
SATISFACTORY TO THE COMPANY), ACCEPTABLE TO THE COMPANY, THAT THE
PROPOSED DISPOSITION MAY BE EFFECTED IN COMPLIANCE WITH APPLICABLE
SECURITIES LAWS WITHOUT REGISTRATION.”
Said legend shall be removed
by the Company, upon the request of a holder, at such time as the
restrictions on the transfer of the applicable security shall have
terminated. In addition, in connection with the issuance of this
Warrant, the holder specifically represents to the Company by
acceptance of this Warrant as follows:
(1) The holder is aware of
the Company’s business affairs and financial condition, and
has acquired information about the Company sufficient to reach an
informed and knowledgeable decision to acquire this Warrant. The
holder is acquiring this Warrant for its own account for investment
purposes only and not with a view to, or for the resale in
connection with, any “distribution” thereof in
violation of the Act.
(2) The holder understands
that this Warrant has not been registered under the Act in reliance
upon a specific exemption therefrom, which exemption depends upon,
among other things, the bona fide nature of the holder’s
investment intent as expressed herein.
(3) The holder further
understands that this Warrant must be held indefinitely unless
subsequently registered under the Act and qualified under any
applicable state securities laws, or unless exemptions from
registration and qualification are otherwise available. The holder
is aware of the provisions of Rule 144, promulgated under the
Act.
(4) The holder is an
“accredited investor” as such term is defined in
Rule 501 of Regulation D promulgated under the
Act.
(5) In connection with any
exercise of this Warrant, the Company may require the holder of
this Warrant to enter into and become bound by that certain Amended
and Restated Stockholders’ Agreement dated as of May 22,
2002 by and among the Company and its stockholders, as the same may
be amended from time to time or superceded by any other agreement
among the Company and all
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