Exhibit 4.5
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 AMENDED AND RESTATED STOCKHOLDER
AGREEMENT DATED 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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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, Natural Gas Partners VIII, L.P., together with any of 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 (as
defined hereinafter),
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 $11.00 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 is the text of this Warrant, shall have
the following meanings:
“ 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 mean the common stock, par value $0.0001 per share, of the
Company.
“ 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 paragraph 2(a)
hereof.
“ Exercise Period
” shall have the meaning specified in paragraph 2(c)
hereof.
“ Exercise Price
” shall have the meaning specified in the introduction to
this Warrant.
“ Expiration Date
” means the eighth anniversary of the Date of
Issuance.
“ Preferred Stock
” shall mean any shares of preferred stock issued by the
Company on or after the Date of Issuance, whether or not
convertible into or exchangeable for Common Stock.
“ Series B Certificate
” means the Certificate of Designation of Series and
Determination of Rights and Preferences of Series B 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.
“ 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.
2. Exercise of Warrant .
While this Warrant remains outstanding and exercisable in
accordance with subparagraph 2(c) below, the Holder may exercise,
in whole or in part, the purchase rights evidenced hereby. Such
exercise shall be effected by:
(a) 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) Net Exercise .
Notwithstanding anything contained in subparagraph 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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X
= (Y) (A-B)
A
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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 determined in good faith by a majority of the Board
of Directors of the Company (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
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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 (3) 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.
(c) 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 ”).
(d) 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.
(e) 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.
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
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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) Below Market Transactions
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(i) 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 subparagraph 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 subparagraph
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 subparagraph
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 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.
(ii) 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
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provided for in subparagraphs
4(a)(v)(C) and (D) below, no adjustment of such Exercise Price
pursuant to this subparagraph 4(a) shall have the effect of
increasing the Exercise Price above the Exercise Price in effect
immediately prior to such adjustment.
(iii) In the case of the issuance of
Common Stock for cash, the consideration shall be deemed to be the
amount of cash paid th