Exhibit 4.9
THIS WARRANT, AND ANY SHARES OF
COMMON STOCK ACQUIRED UPON THE EXERCISE OF THIS WARRANT, HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”) OR ANY OTHER APPLICABLE SECURITIES LAWS. THIS
WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NEITHER THIS WARRANT
NOR ANY OF SUCH SHARES MAY BE SOLD OR TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION OF THEM UNDER THE ACT AND ANY OTHER
APPLICABLE SECURITIES LAW, OR RECEIPT BY THE COMPANY OF AN OPINION
OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH
SALE OR TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE ACT. NEITHER
THIS WARRANT NOR ANY OF SUCH SHARES MAY BE TRANSFERRED EXCEPT UPON
THE CONDITIONS SPECIFIED IN THIS WARRANT, AND NO TRANSFER OF THIS
WARRANT OR ANY OF SUCH SHARES SHALL BE VALID OR EFFECTIVE UNLESS
AND UNTIL SUCH CONDITIONS SHALL HAVE BEEN COMPLIED WITH. TRANSFER
OF THIS WARRANT OR ANY OF SUCH SHARES IS FURTHER RESTRICTED AS
PROVIDED IN THE STOCKHOLDER AGREEMENT DATED AUGUST 1, 2006, AS
AMENDED JULY 18, 2007 (THE “STOCKHOLDER AGREEMENT”), A
COPY OF WHICH IS AVAILABLE AT THE COMPANY’S
OFFICES.
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Certificate No.
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Date of
Issuance:
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Original Date of
Issuance:
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STOCK PURCHASE WARRANT
To Purchase Shares of
Common Stock of
RENEWABLE ENERGY GROUP, INC.
THIS CERTIFIES THAT, for value
received, the receipt and sufficiency of which is hereby
acknowledged:
Subject to the conditions set forth
herein, Viant Capital LLC, together with any its registered assigns
or any transferee of all or any portion of its rights hereunder the
holder of any shares of Common Stock issued hereunder (the
“Holder” or “Holders”), is entitled to
subscribe for and purchase from Renewable Energy Group, Inc., a
Delaware corporation (the “Company”), at any time or
from time to time after the date hereof and continuing during the
Exercise Period (as hereinafter
defined),
fully paid and nonassessable shares of the Company’s Common
Stock (as hereinafter defined), par value $.0001 per share at an
exercise price of $9.50 per share (the “Exercise
Price”), subject to adjustment from time to time pursuant to
the provisions of this Warrant (the “Warrant Shares”).
This Warrant is subject to the following provisions, terms and
conditions:
1. Definitions . For the
purpose of the Warrants, the following terms, whether or not
capitalized or underlined in the text of this Warrant, shall have
the following meanings:
“ Acquisition ”
shall have the meaning specified in paragraph 8 hereof.
“ Common Stock ”
shall mean the common stock, par value $.0001 per share, of the
Company.
“ Company ” shall
have the meaning specified in the introduction to this
Warrant.
“ Exercise Agreement
” shall have the meaning specified in paragraph 2(a)
hereof.
“ Exercise Period
” shall have the meaning specified in paragraph 2(b)
hereof.
“ Exercise Price
” shall have the meaning specified in the introduction to
this Warrant.
“ Expiration Date
” means the fifth anniversary of the Original Date of
Issuance.
“ Fair Market Value
Price ” shall have the meaning specified in paragraph
2(a) hereof.
“ Holder ” or
“ Holders ” shall have the meaning specified in
the introduction to this Warrant.
“ Preferred Stock
” shall mean any shares of preferred stock issued by the
Company on or after the Original Date of Issuance, whether or not
convertible into or exchangeable for Common Stock.
“Series A
Certificate ” means
the Certificate of Designation of Series and Determination of
Rights and Preferences of Series A Convertible Preferred Stock of
the Company as the terms thereof may be amended from time to
time.
“Series A Preferred
Stock ” shall mean
the shares of preferred stock established by the Company pursuant
to the Company’s Certificate of Incorporation and described
in the Series A Certificate.
‘ Trading Days ”
shall mean any days during the course of which the principal
securities exchange on which the Common Stock is listed or admitted
to trading is open for the exchange of securities.
“ Warrant(s) ”
shall mean this Warrant of even date herewith, including all
amendments to any such Warrants and all warrants issued in
exchange, transfer or replacement therefor.
“ Warrant Shares
” shall have the meaning specified in the introduction to
this Warrant.
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2. Exercise of Warrant .
While this Warrant remains outstanding and exercisable in
accordance with subparagraph 2(b) below, the Holder may exercise,
in whole or in part, the purchase rights evidenced hereby. Such
exercise shall be effected by:
(a) Option of the Company .
Upon receipt of a completed Exercise Agreement in the form attached
hereto (“Exercise Agreement”) by the Secretary of the
Company at its principal offices, the Company shall, at the option
of the Company and upon notification to the Holder given within ten
(10) days after receipt by the Company of a completed Exercise
Agreement from the Holder, proceed with the settlement of the
exercise of the Warrant in one of the following manners:
(i) Exchange for Shares .
Subject to Section 2(a)(ii) below, upon election of the
Holder, the exercise of this Warrant shall be settled by the
Company and the Holder in exchange for shares within ten
(10) days after notice by the Company to the Holder of the
Company’s election of this settlement option by (A) the
surrender of the Warrant and the payment to the Company of an
amount equal to the aggregate Exercise Price, for the number of
Warrant Shares being purchased, in cash (in the form of immediately
available funds in U.S. Dollars) or (B) the surrender of the
Warrant, together with a completed Exercise Agreement indicating a
net exercise; and, in the case of subclause (A) or (B), in
full compliance with the other applicable provisions of this
Warrant. Upon a “net exercise” of the Warrant, the
Company shall issue to the Holder a number of shares of Common
Stock computed using the following formula:
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Where:
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X =
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the number of
shares of Common Stock to be issued to the Holder.
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Y =
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the total
number of shares of Common Stock issuable upon exercise of this
Warrant, or, if only a portion is being exercised, the portion of
the Warrant being exercised (expressed as a fraction).
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A =
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the Fair Market
Value Price of one share of Common Stock.
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B =
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Exercise
Price.
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(ii) Redeem for Cash .
Notwithstanding anything to the contrary contained herein, in the
event of an actual or deemed exercise of this Warrant the Company
may elect to redeem the rights represented by this Warrant for cash
by the Company paying an amount equal to the difference between the
Exercise Price and the Fair Market Value Price (as hereinafter
defined) for the Common Stock within ten (10) days after the
determination of the Fair Market Value Price.
In the event the Company does not
elect either settlement option in subparagraphs 2(a)(i) or
(ii) within ten (10) days after receipt by the Company of
a completed Exercise Agreement from the Holder, the Company shall
be deemed to have selected the settlement option selected by the
Holder in subparagraph 2(a)(i). For purposes of this Warrant, the
“Fair Market Value Price” of a share of the Common
Stock shall be determined by (i) an independent appraiser
selected by the Company or (ii) other method of valuation
agreed upon by the Holder and the Company. The determination of
such independent appraiser shall be conclusive and binding on the
Holder and the Company, and the Company shall pay all costs
incurred in connection with such independent appraiser.
Notwithstanding the foregoing, in the event the Warrant is
exercised in connection
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with the Company’s IPO (as
defined below), the fair market value per share shall be the per
share offering price to the public of the Common Stock in such
offering.
(b) Exercise Period . This
Warrant is exercisable at any time or from time to time during the
period from the date hereof until the earlier of (i) the
Expiration Date, (ii) immediately prior to the closing of the
sale and issuance of shares of Common Stock of the Company in a
firmly underwritten public offering, pursuant to an effective
registration statement under the Act (an “IPO”), or
(iii) immediately prior to the closing of an Acquisition, in
the case of subclause (ii) or (iii) in accordance with
the provisions of Section 8 hereof (the “Exercise
Period”).
(c) Issuance of Certificates
. Certificates for the Warrant Shares, representing the aggregate
number of shares specified in said Exercise Agreement, shall be
delivered to the Holder within a reasonable time, not exceeding
five (5) business days, after the rights represented by this
Warrant shall have been so exercised. The stock certificate or
certificates so delivered shall be in such denominations as may be
requested by the holder hereof and shall be registered in the name
of said Holder or such other name as shall be designated by said
Holder (subject to the transfer restrictions applicable to this
Warrant and to shares purchased upon exercise of this Warrant). If
this Warrant shall have been exercised only in part, then, unless
this Warrant has expired, the Company shall, at its expense, at the
time of delivery of said stock certificates(s), deliver to said
holder a new Warrant representing the right to purchase the number
of shares of Common Stock with respect to which this Warrant shall
not then have been exercised. The Company shall pay all expenses
and charges payable in connection with the preparation, execution
and delivery of stock certificates (and any new Warrants) pursuant
to this paragraph 2 except that, in case such stock certificates
shall be registered in a name or names other than the Holder of
this Warrant or such Holder’s nominee, funds sufficient to
pay all stock transfer taxes which shall be payable in connection
with the execution and delivery of such stock certificates shall be
paid by the Holder to the Company at the time of delivery of such
stock certificates by the Company as mentioned above.
(d) No Fractional Shares .
This Warrant shall be exercisable only for a whole number of
Warrant Shares. No fractions of shares of Common Stock, or scrip
for any such fractions of shares, shall be issued upon the exercise
of this Warrant. The Company shall pay a cash adjustment in respect
of such fractional interest in an amount equal to the Fair Market
Value Price of one share of Common Stock at the time of such
exercise multiplied by such fraction computed to the nearest whole
cent.
(e) Stockholder Agreement .
Upon exercise of this Warrant the Holder agrees to be bound by and
to execute the Stockholder Agreement.
3. Shares to be Fully Paid;
Reservations of Shares . The Company covenants and agrees that
all Warrant Shares will be duly authorized and validly issued and
upon issuance in accordance with the terms and conditions hereof,
will be fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issue thereof. Without limiting the
generality of the foregoing, the Company covenants and agrees that
it will from time to time take all such action as may be required
to assure that the par value per Warrant Share is at all times
equal to or less than the Exercise Price then in effect. The
Company further covenants and agrees that
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during the period within which the rights
represented by this Warrant may be exercised, the Company shall at
all times reserve and keep available out of its authorized but
unissued shares of Common Stock, solely for the purpose of
effecting the exercise of the rights represented by this Warrant
and any other Warrants, such number of its shares of Common Stock
as shall from time to time be sufficient to effect the exercise of
all then outstanding Warrants; and if at any time the number of
authorized but unissued shares of Common Stock shall not be
sufficient to effect the exercise of all then outstanding Warrants,
in addition to such other remedies as shall be available to the
Holder, the Company will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall
be sufficient for such purposes, including, without limitation,
engaging in best efforts to obtain the requisite stockholder
approval of any necessary amendment to the Certificate of
Incorporation.
4. Anti-Dilution Provisions .
The number, rights and privileges of the shares of Common Stock
issuable upon exercise of this Warrant shall be subject to the
following adjustments:
(a) Subdivisions, Combinations
and Stock Dividends . If the Company shall