|
Exhibit 4.5
THIS WARRANT AND THE SHARES ISSUABLE
HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH
ACT OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE
STOCK
Corporation: Rubicon Technology, Inc., a
Delaware corporation
Number of Shares:
Class of Stock: Series A Preferred
Stock
Initial Exercise Price:
Issue Date:
Expiration Date:
THIS WARRANT CERTIFIES THAT,
for the agreed upon value of
and for other good and valuable consideration,
(“Holder”) is entitled to
purchase the number of fully paid and nonassessable shares of
Series A Preferred Stock (the “Shares”) of Rubicon
Technology, Inc. (the “Company”) at the initial
exercise price per Share of
(the “Warrant Price”) all as set forth above and as
adjusted pursuant to Article 2 of this Warrant, subject to the
provisions and upon the terms and conditions set forth in this
Warrant.
ARTICLE 1. EXERCISE OF WARRANT,
DURATION AND WARRANT PRICE .
1.1 Method of Exercise
. Holder may exercise this Warrant by delivering a duly executed
Notice of Exercise in substantially the form attached as Appendix 1
to the principal office of the Company at any time until 5:00 p.m.,
Chicago time, on
, 20 . Unless Holder is exercising
the conversion right set forth in Section 1.2, Holder shall
also deliver to the Company a check for the aggregate Warrant Price
for the Shares being purchased.
1.2 Conversion Right .
In lieu of exercising this Warrant as specified in
Section 1.1, Holder may from time to time convert this
Warrant, in whole or in part, into a number of Shares determined by
dividing (a) the aggregate fair market value of the Shares or
other securities otherwise issuable upon exercise of this Warrant
minus the aggregate Warrant Price of such Shares by (b) the
fair market value of one Share. The fair market value of the Shares
shall be determined pursuant to Section 1.3.
1.3 Fair Market Value
, If the Shares are traded in a public market, the fair market
value of the Shares shall be the closing price of the Shares (or
the closing price of the
1
Company’s stock into which the
Shares are convertible) reported for the business day immediately
before Holder delivers its Notice of Exercise to the Company. If
the Shares are not traded in a public market, the Board of
Directors of the Company shall determine fair market value in its
reasonable good faith judgment. The foregoing notwithstanding, if
Holder advises the Board of Directors in writing within three days
of Holder having received notice from the Company of the fair
market value determination of the Board of Directors that Holder
disagrees with such determination, then the Company and Holder
shall promptly agree upon a reputable investment banking firm to
undertake such valuation. If the valuation of such investment
banking firm is greater than that determined by the Board of
Directors, then all fees and expenses of such investment banking
firm shall be paid by the Company. In all other, circumstances,
such fees and expenses shall be paid by Holder.
1.4 Delivery of
Certificate and New Warrant . Promptly after Holder exercises
or converts this Warrant, the Company shall deliver to Holder
certificates for the Shares acquired and, if this Warrant has not
been fully exercised or converted and has not expired, a new
Warrant representing the Shares not so acquired.
1.5 Replacement of
Warrants . On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this
Warrant and, in the case of loss, theft or destruction, on delivery
of an indemnity agreement reasonably satisfactory in form and
amount to the Company or, in the case of mutilation, on surrender
and cancellation of this Warrant, the Company shall execute and
deliver, in lieu of this Warrant, a new warrant of like
tenor.
1.6 Assumption Upon Sale,
Merger, or Consolidation of The Company .
1.6.1.
“Acquisition” . For the purpose of this Warrant,
“Acquisition” means any sale, license, or other
disposition of all or substantially all of the assets or stock of
the Company, or any reorganization, consolidation, or merger of the
Company where the holders of the Company’s securities before
the transaction beneficially own less than 50% of the outstanding
voting securities of the surviving entity after the
transaction.
1.6.2. Assumption of
Warrant . Upon the closing of any Acquisition the successor
entity shall assume the obligations of this Warrant, and this
Warrant shall be exercisable for the same securities, cash, and
property as would be payable for the Shares issuable upon exercise
of the unexercised portion of this Warrant as if such Shares were
outstanding on the record date for the Acquisition and subsequent
closing. The Initial Exercise Price and/or number of shares shall
be adjusted accordingly.
ARTICLE 2. ADJUSTMENTS TO THE
SHARES .
2.1 Stock Dividends,
Splits, Etc . In case at any time or from time to time while
this Warrant remains outstanding, the Company shall, by
reclassification, by stock split or reverse stock split, by the
issuance of a stock dividend on shares for which this Warrant is
then exercisable payable in such shares, or other similar means,
subdivide or combine the then
2
outstanding shares of stock for which
this Warrant is then exercisable into a greater or lesser number of
such shares, then the number of shares which may be purchased
hereunder shall be increased or decreased proportionately (as
determined by the Board of Directors of the Company) effective upon
consummation of such reclassification, stock split or reverse stock
split or stock dividend. When any adjustment is required to the
number of shares for which this Warrant is exercisable hereunder,
the Warrant Price shall be decreased or increased proportionately
(as determined by the Board of Directors of the Company) effective
upon such adjustment.
2.2 Reclassification,
Exchange or Substitution . Upon any reclassification, exchange,
substitution, or other event that results in a change of the number
and/or class of the securities issuable upon exercise or conversion
of this Warrant, Holder shall be entitled to receive, upon exercise
or conversion of this Warrant, the number and kind of securities
and property that Holder would have received for the Shares if this
Warrant had been exercised immediately before such
reclassification, exchange, substitution, or other event. Such an
event shall include any mandatory conversion of the outstanding or
issuable securities of the Company of the same class or series as
the Shares to common stock pursuant to the terms of the
Company’s Certificate of Incorporation in effect from time to
time (the “Certificate”). The Company or its successor
shall promptly issue to Holder a new Warrant for such new
securities or other property. The new Warrant shall provide for
adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 2
including, without limitation, adjustments to the Warrant Price and
to the number of securities or property issuable upon exercise of
the new Warrant. The provisions of this Section 2.2 shall
similarly apply to successive reclassifications, exchanges,
substitutions, or other events.
2.3 Adjustments for
Diluting Issuances . In the event of issuance by the Company,
after the date of original issuance of this Warrant, of securities
at a price per share less than the Warrant Price, then the number
of shares of common stock issuable upon conversion of the Shares
shall be subject to adjustment, from time to time in the manner set
forth in the Certificate. The provisions set forth for the Shares
in the Certificate relating to the above in effect as of the Issue
Date may not be amended, modified or waived, in any manner which
adversely affects the Holder in a manner different than the other
holders of Series A Preferred Stock (other than differences
resulting solely from the number of shares held) without the prior
written consent of Holder.
2.4 No Impairment .
The Company shall not, by amendment of its Articles of
Incorporation or through a reorganization, transfer of assets,
consolidation, merger, dissolution, issue, or sale of securities or
any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed
under this Warrant by the Company, but shall at all times in good
faith assist in carrying out of all the provisions of this Article
2 and in taking all such action as may be necessary or appropriate
to protect Holders rights under this Article against impairment. If
the Company takes any action affecting the Shares or its common
stock other than as described above that adversely affects
Holder’s rights under this Warrant, the Warrant Price shall
be adjusted downward and the number of Shares issuable upon
exercise of this Warrant shall be adjusted upward in such a manner
that the aggregate Warrant Price of this Warrant is
unchanged.
3
2.5 Fractional Shares
. No fractional shares shall be issuable upon exercise or
conversion of the Warrant and the number of Shares to be issued
shall be rounded down to the nearest whole Share. If a fractional
share interest arises upon any exercise or conversion of the
Warrant, the Company shall eliminate such fractional share interest
by paying Holder an amount computed by mul
|
