Exhibit 4.7
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 SECOND AMENDED AND RESTATED STOCKHOLDER AGREEMENT
DATED JUNE 25, 2008, AS MAY BE AMENDED FROM TIME TO TIME (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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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,
,
together with any its registered assigns or any transferee of all
or any portion of its rights hereunder and 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,
fully paid and nonassessable shares of the Company’s common
stock, par value $0.0001 per share (the “Common
Stock”), at an exercise price of $10.25 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:
“ Appraised Values
” shall have the meaning specified in Section 2(b)
hereof.
“ Appraiser’s
Determination ” shall have the meaning specified in
Section 2(b) hereof.
“ Board of Directors
” shall mean the Board of Directors of the
Company.
“ Capital Stock ”
shall mean any and all shares, interests, participations, or other
equivalents (however designated) of capital stock of the Company,
including, without limitation, shares of Common Stock or Preferred
Stock.
“ Common Stock ”
shall have the meaning specified in the introduction to this
Warrant.
“ Company ” shall
have the meaning specified in the introduction to this Warrant, and
shall include any corporation or business entity resulting from the
merger, consolidation, or conversion of the Company.
“ Exercise Agreement
” shall have the meaning specified in Section 2(a)
hereof.
“ Exercise Period
” shall have the meaning specified in Section 2(c)
hereof.
“ Exercise Price
” shall have the meaning specified in the introduction to
this Warrant.
“ Expiration Date
” means the tenth (10th) anniversary of the Date of
Issuance.
“ Fair Market Value
Price ” shall have the meaning specified in
Section 2(b) hereof.
“ Holder ” shall
have the meaning specified in the introduction to this
Warrant.
“ Preferred Stock
” shall mean any shares of preferred stock issued by the
Company, whether or not convertible into or exchangeable for Common
Stock, including the Series A Convertible Preferred Stock, Series
AA Convertible Preferred Stock, Series B Convertible Preferred
Stock and Series BB Convertible Preferred Stock.
“ Series AA Certificate
” means the Certificate of Designation of Series and
Determination of Rights and Preferences of Series AA Convertible
Preferred Stock of the Company as the terms thereof may be amended
from time to time.
“ Series AABB Director
” has the meaning ascribed thereto in the Series AA
Certificate and Series BB Certificate.
“ Series BB Certificate
” means the Certificate of Designation of Series and
Determination of Rights and Preferences of Series BB Convertible
Preferred Stock of the Company as the terms thereof may be amended
from time to time.
“ 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.
“ Value Dispute ”
shall have the meaning specified in Section 2(b)
hereof.
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“ 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.
2. Exercise of Warrant .
While this Warrant remains outstanding and exercisable in
accordance with Section 2(c) below, the Holder may exercise,
in whole or in part, the purchase rights evidenced hereby. Such
exercise shall be effected by:
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(a)
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Cash
Exercise . The rights
represented by this Warrant may be exercised in a cash exercise by
(i) the surrender of the Warrant, together with a completed
Exercise Agreement in the form attached hereto (“Exercise
Agreement”) indicating a cash exercise, to the Secretary of
the Company at its principal offices, (ii) 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); and (iii) full
compliance with the other applicable provisions of this
Warrant.
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(b)
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Net
Exercise .
Notwithstanding anything contained in Section 2(a) above, the
holder of the Warrant may also elect to exercise this Warrant on a
“net exercise” basis by (i) the surrender of the
Warrant, together with a completed Exercise Agreement indicating a
net exercise, to the Secretary of the Company at its principal
offices and (ii) 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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For purposes of this Warrant, the
‘Fair Market Value Price” of a share of Common Stock
shall mean the average of the closing sales prices, if available,
and, if not then available, the average of the bid and asked prices
for the Common Stock, as applicable, on the principal market
therefor for the five (5) Trading Days preceding the day which
is two (2) business days prior to the day of exercise, or if
no such price is available, then the fair market value shall
be
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determined in good faith by a
majority of the Board of Directors (excluding any director
nominated by or otherwise affiliated with the Holder or an
affiliate of the Holder), and in making such determination it shall
not give consideration to any discount related to shares
representing minority interest or related to any illiquidity or
lack of marketability of shares arising from restrictions on
transfer under federal or state securities laws. If the Holder of
the Warrant to be exercised disagrees with such determination of
Fair Market Value Price, such Holder shall provide written notice
to the Company thereof (a “Value Dispute”) and the Fair
Market Value Price of a share of Common Stock as of the day of
exercise shall be determined by the following procedures. Each of
the Company, on the one hand, and the Holder submitting the Value
Dispute, on the other hand, shall appoint an independent appraiser,
each of whom shall independently determine the Fair Market Value
Price per share of Common Stock (the “Appraised
Values”). If the higher of the Appraised Values is not more
than 25% higher than the lower of the Appraised Values, then the
Fair Market Value Price per share will be the average of the two
Appraised Values. If the higher of the Appraised Values is more
than 25% higher than the lower of the Appraised Values, then the
parties shall appoint a third independent appraiser who shall,
within thirty (30) days following receipt of the Appraised
Values, select one of the two Appraised Values as the Fair Market
Value Price per share which is closest to the Fair Market Value
Price per share determined by such third independent appraiser (the
“Third Appraiser’s Determination”). The Third
Appraiser’s Determination shall be binding on and
non-appealable by the Company and the Holder of the Warrant to be
exercised. In the event of a Third Appraiser’s Determination,
if the aggregate amount by which the Fair Market Value Price of the
Warrant Shares being exercised exceeds the aggregate Exercise Price
is less than $5,000,000, the cost of all independent appraisers
shall be paid by the Holder, and if the amount of such excess is
$5,000,000 or more, each of the Company and the Holder shall pay
the costs of the independent appraiser approved by it and the cost
of the third independent appraiser shall be split equally by the
Company and the Holder. In calculating the aggregate value of the
Warrant for purposes of the foregoing agreement regarding
allocation of appraisal expenses, there shall be added to the
aggregate value determined as described above, the aggregate value
determined in connection with the same procedure under any Warrant
held by an affiliate of the Holder and exercised as of (or within
three business days of) the exercise date of this Warrant.
Notwithstanding the foregoing, in the event the Warrant is
exercised in connection with the Company’s initial public
offering of Common Stock, the fair market value per share shall be
the per share offering price to the public of the Common Stock in
the Company’s initial public offering.
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(c)
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Exercise
Period . This Warrant is
exercisable at any time or from time to time during the period from
the date hereof until the Expiration Date (the “Exercise
Period”).
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(d)
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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
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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 Section 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.
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(e)
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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.
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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 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.
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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:
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(a)
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Below Market
Transactions .
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(i)
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If the Company
shall issue, after the Date of Issuance, any Additional Stock (as
defined below) without consideration or for a consideration per
share less than the Exercise Price in effect immediately prior to
the issuance of such Additional Stock, the Exercise Price in effect
immediately prior to each such issuance shall forthwith (except as
otherwise provided in this Section 4(a)(i)) be adjusted to a
price determined by multiplying such Exercise Price by a fraction,
the numerator of which shall be the number of shares of Common
Stock outstanding immediately prior to such issuance (including
shares of Common Stock deemed to be issued pursuant to
Section 4(a)(v)(A) or (B) below) plus the number of
shares of Common Stock that the aggregate consideration received by
the Company for such issuance would purchase at such Exercise
Price; and the denominator of which shall be the number of shares
of Common Stock outstanding immediately prior to such issuance
(including shares of Common Stock deemed to be issued pursuant to
Section 4(a)(v)(A) or (B) below) plus the number of
shares of such Additional Stock; provided, however, for purposes of
such calculation (1) it shall not include any additional
shares of Common Stock issuable with respect to shares of Preferred
Stock, convertible securities, or currently exercisable options,
warrants or other rights for the purchase of shares of stock or
convertible securities, solely as a result of the adjustment of
such Exercise Price resulting from the issuance of Additional Stock
causing such adjustment and (2) the grant, issue or sale of
Additional Stock consisting of the same class of security, and
warrants to purchase such security and notes convertible into such
security, issued or issuable at the same price at two or more
closings within a six month period shall be aggregated and shall be
treated as one sale of Additional Stock occurring on the earliest
date on which such securities were granted, issued or
sold.
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(ii)
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No adjustment
of the Exercise Price shall be made in an amount less than one cent
per share, provided that any adjustments that are not required to
be made by reason of this sentence shall be carried forward and
shall be either taken into account in any subsequent adjustment
made prior to three (3) years from the date of the event
giving rise to the adjustment being carried forward, or shall be
made at the end of three (3) years from the date of the event
giving rise to the adjustment being carried forward. Except to the
limited extent provided for in Sections 4(a)(v)(C) and
(D) below, no adjustment of such Exercise Price pursuant to
this Section 4(a) shall have the effect of increasing the
Exercise Price above the Exercise Price in effect immediately prior
to such adjustment.
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(iii)
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In the case of
the issuance of Common Stock for cash, the consideration shall be
deemed to be the amount of cash paid therefor before deducting any
discounts, commissions or other expenses allowed, paid or incurred
by the Company for any underwriting or otherwise in connection with
the issuance and sale thereof.
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(iv)
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In the case of
the issuance of the Co
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