|
Exhibit
4.11
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. ADDITIONAL RESTRICTIONS ON TRANSFER ARE SET
FORTH HEREIN.
|
|
|
| 535,714
SHARES |
|
$0.56 PER SHARE |
WARRANT
NO. WB-023
(the “
Warrant ”)
to Series B Preferred
Stock,
par value $0.001,
of
RUBICON TECHNOLOGY,
INC.
THIS IS TO CERTIFY THAT, for
value received, Heller Financial Leasing, Inc., a GE Capital
Company, or its registered assigns (the “ Holder
”), is (subject to the restrictions provided herein) entitled
to purchase from Rubicon Technology, Inc., a Delaware corporation
(the “ Company ”), at a purchase price (the
“ Warrant Price ”) of $0.56 per share, up to
535,714 duly authorized, fully paid, validly issued and
nonassessable shares of the Company’s Series B Preferred
Stock, par value $0.001 (the “ Preferred Stock
”) or other securities or property for which this Warrant
becomes exercisable as provided herein (collectively, the Preferred
Stock and any other such securities and property being the “
Warrant Shares ”), subject to adjustment as provided
herein, and is also entitled to exercise the other rights, powers
and privileges hereinafter set forth in the Stockholders’
Agreement as amended and restated from time to time. The Company
acknowledges that the cash consideration paid by Holder for this
Warrant is $10.00 for income tax purposes, that such amount has
been duly received by the Company, and that this Warrant is issued
in connection with that certain financial accommodation entered
into by and between Company as the obligor and Holder as the
obligee thereunder. The purchase rights represented by this Warrant
are exercisable, in whole or in part, at any time and from time to
time, however prior to 5:00 p.m. local time at the location of the
Warrant Office (as defined in Section 2.1), from and after
October 24, 2003 (the “Grant Date”) and on or
prior to the earlier to occur of (i) the tenth anniversary of
the Grant Date and (ii) an initial public offering of the
company’s capital stock or a merger, consolidation or sale of
the Company (the “Expiration Date”)
ARTICLE I
EXERCISE OF
WARRANT
1.1 Method of Exercise
. To exercise this Warrant in whole or in part, the Holder shall
deliver to the Company at the Warrant Office (i) this Warrant
together with the subscription notice attached hereto as Exhibit
A (the “ Subscription Notice ”) filled out
and duly executed by the Holder indicating the Holder’s
election to exercise this Warrant and specifying the number of
Warrant Shares to be purchased; and (ii) either a certified or
bank cashier’s check payable to the order of the Company in
an amount equal to the aggregate purchase price for the number of
Warrant Shares being purchased, or provides notice of
Holder’s net issuance Conversion Right election referenced in
Section 1.2 herewith. Subject to the restrictions provided
herein, the Company shall as promptly as practicable, and in any
event within 14 days thereafter, execute and deliver or cause to be
executed and delivered, in accordance with the Subscription Notice,
a single certificate in the name of the Holder representing the
aggregate
|
|
|
|
|
|
R UBICON T
ECHNOLOGY , I NC .
|
|
-1- |
|
W ARRANT N O .
|
number of Warrant Shares specified in
the Subscription Notice. Such certificate shall be deemed to have
been issued, and the Holder shall be deemed for all purposes to
have become a holder of record of such shares, as of the date the
Subscription Notice is actually received by the Company with
payment as provided above. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery
of such certificate or certificates, deliver to the Holder a new
Warrant evidencing the rights of the Holder to purchase the
remaining Warrant Shares called for by this Warrant, which new
Warrant shall in all other respects be identical with this Warrant,
or at the request of the Holder, appropriate notation may be made
on this Warrant and the same returned to the Holder. The Company
shall pay all expenses, taxes and other charges payable in
connection with the preparation, issuance and delivery of such
stock certificates and new Warrants.
1.2 Right to Convert
Warrant into Stock: Net Issuance .
(a) Right to Convert .
In addition to and without limiting the rights of the Holder under
the terms of this Warrant, the Holder shall have the right (the
“ Conversion Right ”) to convert this Warrant or
any portion hereof into Warrant Shares as provided in this
Section 1.2 at any time that this Warrant is otherwise
exercisable during the term of this Warrant. Upon exercise of the
Conversion Right, the Company shall deliver to the Holder (without
payment by the Holder of the Warrant Price) that number of fully
paid and nonassessable Warrant Shares equal to the quotient of
(i) the number of Warrant Shares purchasable under this
Warrant (or the portion thereof being exercised); multiplied by the
difference of (A) the Fair Market Value of one
(1) Warrant Share; minus (B) the Warrant Price; divided
by (ii) the Fair Market Value of one (1) Warrant
Share.
(b) Method of Exercise
. The Conversion Right may be exercised by the Holder by the
surrender of this Warrant, at the Warrant Office, together with the
Subscription Notice specifying that the Holder thereby intends to
exercise the Conversion Right and indicating the number of Warrant
Shares with respect to which the Holder intends to exercise this
Warrant. The Holder shall also deliver therewith additional
consideration, if any, such that the aggregate consideration
received by the Company in respect of any Warrant Shares is at
least equal to the par value of any Warrant Shares having a par
value, or the stated capital of any Warrant Shares not having a par
value. The conversion shall be effective on the date which is the
later of (i) receipt by the Company of the items described
above; or (ii) a date specified in the Holder’s notice
to the Company.
1.3 No Fractional Shares
to be Issued . The Company shall not be required upon any
exercise or conversion of this Warrant to issue a certificate
representing any fraction of a share, but, in lieu thereof, may pay
to the Holder cash in an amount equal to a corresponding fraction
(calculated to the nearest 1/100th of a share) of the Fair Market
Value of one Warrant Share as of the date of receipt by the Company
of notice of exercise of this Warrant.
1.4 Legend on Warrant
Shares . Each certificate for Warrant Shares initially issued
upon exercise of this Warrant, unless at the time of exercise such
Warrant Shares are registered under the Securities Act of 1933, as
amended (the “ Act ”) and applicable state
securities laws, shall bear a legend in substantially the following
form (and any additional legend required by law or by any
securities exchange upon which such Warrant Shares may, at the time
of such exercise, be listed):
THE ISSUANCE OF THE SHARES
EVIDENCED HEREBY WAS NOT REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER ANY STATE OR OTHER SECURITIES LAWS.
NEITHER THE SHARES 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 CORPORATION OF AN
OPINION OF COUNSEL (OR OTHER EVIDENCE SATISFACTORY TO THE
CORPORATION) ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED
DISPOSITION MAY BE EFFECTED IN COMPLIANCE WITH APPLICABLE
SECURITIES LAWS WITHOUT REGISTRATION.
THE CORPORATION WILL FURNISH
WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS, A FULL SUMMARY
OR STATEMENT OF ALL OF THE POWERS, DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL, OR OTHER SPECIAL RIGHTS OF EACH
CLASS OF STOCK OR SERIES THEREOF AND THE QUALIFICATIONS,
LIMITATIONS
|
|
|
|
|
|
R UBICON T
ECHNOLOGY , I NC .
|
|
-2- |
|
W ARRANT N O .
|
OR RESTRICTIONS OF SUCH
POWERS, PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST SHOULD BE
ADDRESSED TO THE SECRETARY OF THE CORPORATION.
Any certificate issued at any
time in exchange or substitution for any certificate bearing such
legend (except a new certificate issued upon completion of a public
distribution pursuant to a registration statement which has become
effective under the Act of the securities represented thereby)
shall also bear such legend unless, in the opinion of such counsel
as shall be approved by the Company, the securities represented
thereby need no longer be subject to the restrictions contained in
Article III. The provisions of Article III shall be binding upon
all subsequent holders of this Warrant.
1.5 Automatic
Exercise. Immediately before the expiration or termination of
this Warrant, to the extent this Warrant is not previously
exercised, and if the Fair Market Value of one share of whichever
is applicable of either (i) the Preferred Stock subject to
this Warrant or (ii) the Company’s Common Stock issuable
upon conversion of the Preferred Stock subject to this Warrant, is
greater than the Warrant Price, then in effect as adjusted pursuant
to this Warrant, then this Warrant shall be deemed automatically
exercised pursuant to Section 1.2(a) above, even if not
surrendered. To the extent this Warrant or any portion thereof is
deemed automatically exercised pursuant to this Section, the
Company agrees to promptly notify the Holder of the number of
Warrant Shares, if any, the holder hereof is to receive by reason
of such automatic exercise.
1.6 Stockholders’
Agreement . In connection with any exercise of this Warrant,
the Company may require that the Holder enter into and become bound
by the terms and conditions of any stockholders’ agreement by
and among the Company and the stockholders of the Company, provided
such terms and conditions are applied to Holder in the same manner
as any other stockholder of the Company. Company, within thirty
days of Grant Date, and within thirty days of any subsequent
revisions to stockholders’ agreement, shall deliver to Holder
each stockholders’ agreement as amended and restated from
time to time.
1.7 Notwithstanding
Section 1.6 above, beginning on the date whereby Company no
longer has any indebtedness owed to Holder under any Loan and
Security Agreement or Revolver or Other Agreement, and until the
earlier of the Expiration Date or the tenth anniversary of the
Grant Date, Company shall cause to be furnished to Holder,
(i) the audited fiscal year end financial statements of
Company no later 120 days after the related fiscal year end, and
(ii) internal quarterly financial statements of Company no
later than 45 days after the related quarter end. Each financial
statement to be furnished to Holder must be prepared in accordance
with generally accepted accounting principles, consistently
applied.
ARTICLE II
WARRANT OFFICE;
TRANSFER
DIVISION OR COMBINATION OF
WARRANTS
2.1 Warrant Office .
The Company shall maintain an office for certain purposes specified
herein (the “ Warrant Office ”), which office
shall initially be the Company’s office at 9931 Franklin
Avenue, Franklin Park, Illinois 60131 and may subsequently be such
other office of the Company or of any transfer agent in the
continental United States as to which written notice has been given
to the Holder.
2.2 Warrant
Non-Transferable; Ownership of Warrant . This Warrant and all
rights hereunder may not be transferred, sold, hypothecated or
assigned, without the prior written consent of the Company which
shall be promptly provided on the condition that Holder has
complied with the provisions of Article III hereof. The Company may
deem and treat the Person in whose name this Warrant is registered
as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company)
for all purposes and shall not be affected by any notice to the
contrary, until presentation of this Warrant for registration of
transfer as provided in this Article II.
2.3 Warrant Register .
Subject to Section 2.2 and Article III hereof, the Company
shall maintain at the Warrant Office books for the registration of
warrants and the registration of transfers of warrants. To effect a
transfer of this Warrant upon satisfaction of the provisions of
Section 2.2 and Article III the Holder shall surrender this
Warrant at the Warrant Office, together with a written assignment
of this Warrant duly executed by the Holder or the Holder’s
duly authorized agent or attorney and funds sufficient to pay any
transfer taxes payable upon the
|
|
|
|
|
|
R UBICON T
ECHNOLOGY , I NC .
|
|
-3- |
|
W ARRANT N O .
|
making of such transfer. Upon such
surrender and payment the Company shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees and in
the denominations specified in such instrument of assignment, and
this Warrant shall be canceled.
2.4 Division or
Combination of Warrants . This Warrant may be divided or
combined with other warrants exercisable at the same Warrant Price
upon presentation hereof and of any warrant or warrants with which
this warrant is to be combined at the Warrant Office, together with
a written notice specifying the
|