EXHIBIT 4.11
THIS WARRANT, AND ANY LIMITED
LIABILITY COMPANY UNITS 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 UNITS 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 UNITS MAY BE TRANSFERRED EXCEPT UPON THE CONDITIONS
SPECIFIED IN THIS WARRANT, AND NO TRANSFER OF THIS WARRANT OR ANY
OF SUCH UNITS SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH
CONDITIONS SHALL HAVE BEEN COMPLIED WITH. TRANSFER OF THIS
WARRANT OR ANY OF SUCH UNITS IS FURTHER RESTRICTED AS PROVIDED IN
THE COMPANY’S AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT DATED (THE “ OPERATING AGREEMENT ”), A
COPY OF WHICH IS AVAILABLE AT THE COMPANY’S
OFFICES.
|
|
|
|
Certificate No. W - 1
|
|
Date of Issuance: May 9, 2008
|
UNIT PURCHASE WARRANT
To Purchase Class A
Limited Liability Company Units of
BLACKHAWK BIOFUELS, LLC
THIS CERTIFIES THAT, for value
received, the receipt and sufficiency of which is hereby
acknowledged:
Subject to the conditions set forth
herein, REG Ventures, LLC, with its principal offices at 416 S.
Bell Avenue, Ames, Iowa 50010, together with any of its registered
assigns or any transferee of all or any portion of its rights
hereunder (the “ Holder ” or “
Holders ”), is entitled to subscribe for and purchase
from Blackhawk Biofuels, LLC, a Delaware limited liability company
(the “ Company ”), at any time or from time to
time after the date hereof and continuing during the Exercise
Period (as hereinafter defined), Fifty-one Thousand Five Hundred
Sixty-three (51,563) fully paid and nonassessable Class A
limited liability company units of the Company (the “
Units ”), at an exercise price of $.01 per Unit
(the “ Exercise Price ”), subject to adjustment
from time to time pursuant to the provisions of this Warrant (the
“ Warrant Units ”). This Warrant is subject
to the following provisions, terms and conditions:
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:
“ Capital Units ”
shall mean any and all shares, interests, participations, or other
equivalents (however designated) of capital units 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(b) hereof.
“ Exercise Price
” shall have the meaning specified in the introduction to
this Warrant.
“ 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.
“ Unit(s) ” shall
have the meaning specified in the introduction to this
Warrant.
“ 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 Units ”
shall have the meaning specified in the introduction to this
Warrant.
2. Exercise of Warrant
.
(a) Exercise Agreement
. While this Warrant remains outstanding and exercisable in
accordance with subparagraph 2(a) below, the Holder may
exercise, in whole or in part, the purchase rights evidenced
hereby: (i) the surrender of the Warrant, together with a
completed Exercise Agreement in the form attached hereto (“
Exercise Agreement ”) 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 Units 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.
(b) Exercise Period
. This Warrant is exercisable at any time from and after the
date hereof (the “Exercise Period”) as
follows: 20% of the Warrant Units through the one
(1) year period from the date of this Warrant and an
additional 20% of the Warrant Units on each one (1) year
anniversary of this Warrant.
(c) Issuance of Certificates
. Certificates for the Warrant Units, representing the
aggregate number of Units 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 Unit
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 Units 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 Unit
certificates(s), deliver to said holder a new Warrant representing
the right to purchase the number of Units with respect to which
this Warrant shall not then have been exercised. The
Company
2
shall pay all expenses and charges
payable in connection with the preparation, execution and delivery
of Unit certificates (and any new Warrants) pursuant to this
paragraph 2 except that, in case such Unit 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 Unit
transfer taxes which shall be payable in connection with the
execution and delivery of such Unit certificates shall be paid by
the Holder to the Company at the time of delivery of such Unit
certificates by the Company as mentioned above.
(d) No Fractional Shares
. This Warrant shall be exercisable only for a whole number of
Warrant Units. No fractions of Units, or scrip for any such
fractions of Units, shall be issued upon the exercise of this
Warrant.
3. Units to be Fully Paid;
Reservations of Units . The Company covenants and agrees
that all Warrant Units 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 Unit 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 Units, solely
for the purpose of effecting the exercise of the rights represented
by this Warrant and any other Warrants, such number of its Units 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 Units 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 Units
to such number of Units as shall be sufficient for such purposes,
including, without limitation, engaging in best efforts to obtain
the requisite member approval of any necessary amendment to the
Certificate or Articles of Organization
4. Anti-Dilution Provisions
. The number, rights and privileges of the Units issuable upon
exercise of this Warrant shall be subject to the following
adjustments:
a. Subdivisions, Combinations and
Stock Dividends . If the Company shall at any time prior
to the expiration of this Warrant subdivide its Units, by split up
or otherwise, or combine its Units, or issue additional Units as a
dividend with respect to any Units, the number of Warrant Units
issuable on the exercise of this Warrant shall forthwith be
proportionately increased in the case of a subdivision or Units
dividend, or proportionately decreased in the case of a
combination. Appropriate adjustments shall also be made to the
Exercise Price payable per share, but the aggregate Exercise Price
payable for the total number of Warrant Units purchasable under
this Warrant (as adjusted) shall remain the same. Any
adjustment under this subparagraph 4(a) shall become effective
at the close of business on the date the subdivision or combination
becomes effective, or as of the record date of such dividend, or in
the event that no record date is fixed, upon the making of such
dividend.
3
b. Other Distributions
. In the event the Company shall declare a distribution
payable in securities of other persons, evidences of indebtedness
issued by the Company or other persons, assets (excluding cash
dividends) or options or rights not referred to in subsection 4(b),
then, in each such case for the purpose of this subsection 4(b),
provision shall be made by the Company such that the Holder shall
receive upon exercise of this Warrant a proportionate share of any
such distribution s though it were the holder of the Units as of
the record date fixed for the determination of the Unit holders of
the Company entitled to receive such distribution.
c. Reclassification,
Reorganization and Consolidation . If the Company shall
effect any reclassification or similar change of the outstanding
shares of the Company’s Capital Units (other than as set
forth in subparagraph 4(a) or 4(b) above), or a
consolidation or merger of the Company with another corporation,
this Warrant shall, after such reorganization, reclassification,
consolidation, or merger, be exercisable only for the number of
Capital Units or other properties, including cash, to which a
holder of the number of Units deliverable upon exercise of this
Warrant would have been entitled upon such re