Exhibit 10.13
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE
STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED, FLEDGED, HYPOTHECATED,
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (1) REGISTRATION IN COMPLIANCE WITH
SAID ACT AND SUCH STATE LAWS OR (2) THE OPINION OF COUNSEL, SATISFACTORY IN FORM
AND SUBSTANCE TO THE COMPANY AND ITS COUNSEL, TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED.
STOCK PURCHASE WARRANT
TO PURCHASE 6,250 SHARES
OF COMMON STOCK OF
AUGUST TECHNOLOGY CORPORATION
JULY 24, 1998
THIS CERTIFIES THAT, for other good and valuable consideration, III-D
Capital, LLC or its registered assigns, is entitled to subscribe for and
purchase from August Technology Corporation, a Minnesota corporation (the
"Company"), at any time to and including July 23, 2005 (seven years from the
date of this Warrant), six thousand two hundred fifty (6,250) shares (the
"Shares") of the Company's Common Stock, $.01 par value, at the warrant purchase
price of $1.80 per Share, or such greater or lesser number of such Shares as may
be determined by the anti-dilution provisions of this Warrant.
This Warrant is subject to the following provisions, terms and conditions:
The holder, by acceptance hereof, represents and warrants that (a) it is
acquiring this Warrant for its own account for investment purposes only and not
with a view to its resale or distribution and (b) it has no present intention to
resell or otherwise dispose of all or any part of this Warrant. Other than
pursuant to registration under federal and applicable state securities laws or
an exemption from such registration, the availability of which the Company shall
determine in its sole discretion, neither this Warrant nor any shares of Shares
may be sold, pledged, assigned, or otherwise disposed of (whether voluntarily or
involuntarily). The Company may condition such sale, pledge, assignment, or
other disposition on the receipt from the party to whom this Warrant is to be so
transferred or to whom Shares are to be issued or so transferred of any
representations and agreements requested by the Company in order to permit such
issuance or transfer to be made pursuant to exemptions from registration under
federal and applicable state securities laws. Each certificate representing the
Warrant (or any part thereof and any Shares shall be stamped with appropriate
legends setting forth these restrictions on transferability.
1. EXERCISE. The rights represented by this Warrant may be exercised by
the holder hereof, in whole or in part (but not as to a fractional Share), by
written notice of exercise (in the form attached hereto), together with the
surrender of this Warrant (properly endorsed if required)
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at the principal office of the Company and payment to the Company of the
purchase price for such Shares as follows: at the time of exercise of this
Warrant the holder may determine whether to pay the total purchase price of
the Shares to be purchased solely in cash (including a personal check or a
certified or bank cashier's check, payable to the order of the Company) or by
transfer from the holder to the Company of previously acquired shares of
Common Stock of the Company with a then current aggregate Fair Market Value
equal to such total purchase price, or by a combination of cash and such
previously acquired shares of Common Stock. The Company may reject the
holder's election to pay all or part of the purchase price under this Warrant
with previously acquired shares of Common Stock and may require such purchase
price to be paid entirely in cash if, in the sole discretion of the Company,
payment in previously acquired shares would cause the Company to be required
to recognize a charge to earnings in connection therewith. For purposes of
this Warrant, (a) "previously acquired shares" shall include both shares of
Common Stock of the Company that are already owned by the holder at the time
of exercise and Shares which are to be acquired pursuant to the exercise of
this Warrant, and (b) "Fair Market Value" will be determined in good faith by
the Company.
2. TRANSFERABILITY. This Warrant may be transferred, or divided into two
or more Warrants of smaller denominations, subject to the following conditions:
the issuance of this Warrant has not been registered under the Securities Act of
1933 and, accordingly, no transfer of this Warrant may be made without
registration in compliance with such act and laws or an opinion, satisfactory to
the Company and its counsel, to the effect that such registration is not
required.
3. ISSUANCE OF SHARES. The Company agrees that, the Shares purchased by
the exercise of this Warrant shall be and are deemed to be issued to the record
holder hereof as of the which this Warrant shall have been surrendered and the
payment made for such Shares as aforesaid. Subject to the provisions of the
next paragraph and to Section 7 of this Warrant, certificates for the Shares so
purchased shall be delivered to the holder hereof within a reasonable time, not
exceeding fifteen (15) days after the rights represented by this Warrant shall
have been so exercised, and, unless this Warrant has expired, a new Warrant
representing the right to purchase the number of Shares, if any, with respect to
which this Warrant shall not then have been exercised shall also be delivered to
the holder hereof within such time.
Notwithstanding the foregoing, however, the Company shall not be required
to deliver any certificate for Shares upon exercise of this Warrant except in
accordance with the provisions, and subject to the limitations, of Section 7
hereof.
4. COVENANTS OF COMPANY. The Company covenants and. agrees that:
(a) All Shares which may be issued upon the exercise of this Warrant,
will, upon issuance, be duly authorized and issued, fully paid, nonassessable,
and free from all taxes, liens, and charges with respect to the issue thereof;
(b) During the period within which this Warrant may be exercised, the
Company will at all times have authored, and reserved for the purpose of issue
or transfer upon
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exercise of this Warrant, a sufficient number of Shares to provide for the
exercise of this Warrant.
5. ANTI-DILUTION ADJUSTMENTS. The above provisions are, however, subject
to the following:
(a) In case the Company shall (i) pay a dividend in Common Stock or
make a distribution in Common Stock, (ii) subdivide its outstanding Common
Stock, (iii) combine its outstanding Common Stock into a smaller number of
shares of Common Stock, or (iv) issue by reclassification of its Common Stock
other securities of the Company, the number of Shares purchasable upon exercise
of this Warrant immediately prior thereto shall be adjusted so that the holder
or holders of this Warrant shall be entitled to receive the kind and number of
Shares of the Company which it would have owned or would have been entitled to
receive immediately after the happening of any of the events described above,
had the Warrants (and each underlying security) been exercised immediately prior
to the happening of such event or any record date with respect thereto. Any
adjustment made pursuant to this subsection 4(a) shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
(b) No fractional Shares are to be issued upon the exercise of this
Warrant, but the Company shall pay a cash adjustment in respect of any fraction
of a Share which would otherwise be issuable in an amount equal to the same
traction of the market price per Share on the day of exercise as determined in
good faith by the Company.
(c) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities, or assets with respect to or in
exchange for Common Stock or such warrants, then, as a condition of such
reorganization, reclassification, consolidation, merger, or sale, lawful and
adequate provision shall be made whereby the holder hereof shall thereafter have
the right to purchase and receive upon the basis and upon the terms and
conditions specified in this Warrant and in lieu of the Shares immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby, such shares of stock, securities, or assets as may be issued
or payable with respect to or in exchange for a number of outstanding shares of
Common Stock equal to the number of shares of Common Stock immediately
theretofore purchasable and receivable upon the exercise of the rights
represented by this Warrant (and each underlying security) had such
reorganization, reclassification, consolidation, merger, or sale not taken
place, and in any such case appropriate provisions shall be made with respect to
the rights and interests of the holder of this Warrant to the end that the
provisions hereof shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities, or assets thereafter deliverable
upon the exercise hereof. The Company shall not effect any such consolidation,
merger, or sale, unless prior to the consummation thereof the successor
corporation (if other than the Company) resulting from such consolidation or
merger, or the corporation purchasing such assets, shall assume by written
instrument executed and mailed to the registered holder hereof at the last
address of such holder appearing on the books of the Company, the obligation to
deliver to such holder such shares of
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stock, Warrants, securities, or assets as, in accordance with the foregoing
provisions, such holder may be entitled to purchase.
(d) Upon any adjustment of the Warrant purchase price, then and in
each such case, the Company shall give written notice thereof, by first class
mail, postage prepaid, addressed to the registered holder as shown on the books
of the Company, which notice shall state the Warrant purchase price resulting
from such adjustment and the increase or decrease, if any, in the number of
Shares purchasable at such price upon the exercise of this Warrant, setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based.
(e) As used herein, the term "Common Stock" shall mean and include
the Company's presently authorized common stock, $.01 par value, and shall also
include any capital stock of any class of the Company hereafter authorized which
shall not be limited to a fixed sum or percentage in respect of the rights of
the holders thereof to participate in dividends or in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution, or up o the Company.
6. NO VOTING RIGHTS. This Warrant shall not entitle the holder hereof to
any voting rights or other rights as a shareholder of the Company.
7. NOTICE OF TRANSFER OF WARRANT OR RESALE OF WARRANT SHARES.
(a) The holder of this Warrant by acceptance hereof, agrees that if
the Shares are not issued to the holder of this Warrant in a transaction
consummated pursuant to an effective registration under the Securities Act of
1933, as amended (the "33 Act"), such holder will give written notice to the
Company before exercising this Warrant or transferring such Shares, as the case
may be, of such holder's intention to do so, describing briefly the manner of
any proposed exercise or transfer (on the form attached hereto). Promptly upon
receiving such written notice, the Company shall present copies thereof to the
Company's counsel and to counsel to the original purchaser of this Warrant. If
in the opinion of each such counsel the proposed exercise or transfer may be
effected without registration or qualification (under any federal or state law),
the Company, as promptly as practicable, shall notify such holder of such
opinion, whereupon such holder shall be entitled to exercise this Warrant or
shall be entitled to transfer such Shares, as the case may be, all in accordance
with the terms of the notice delivered by such holder to the Company, provided
that an appropriate legend may be endorsed on such Shares respecting
restrictions upon exercise and transfer thereof necessary or advisable in the
opinion of counsel satisfactory to the Company to prevent transfer exercises and
transfers which would be in violation of Section 5 of the Act and applicable
state laws.
(b) If in the opinion of the counsel referred to in this Section 7,
the proposed exercise, transfer, or disposition described in the written notice
given pursuant to this Section 7 may not be effected without registration or
qualification under the 33 Act, the Company shall promptly give written notice
thereof to the holder hereof, and such holder will limit its activities in
respect to such as, in the opinion of both such counsel, are permitted by law.
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IN WITNESS WHEREOF, August Technology Corporation has caused this Warrant
to be signed by its duly authorized officer and to be dated as of July 24, 1998.
AUGUST TECHNOLOGY CORPORATION
By ________________________________________
Xxxxxxx X. O'Dell, President
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FULL EXERCISE OF WARRANT
TO BE EXECUTED BY THE REGISTERED HOLDER IF
HE DESIRES TO EXERCISE IN FULL THE WITHIN WARRANT
The undersigned hereby exercises the right to purchase the 6,250 shares of
Common Stock covered by the attached Warrant at the date of this subscription
and herewith makes payment of the sum of $11,250 representing the Purchase Price
of $1.80 per share in effect at that date. Certificates for such shares shall
be issued in the name of and delivered to the undersigned, unless otherwise
specified by written instructions, signed by the undersigned and accompanying
this subscription.
Dated:__________________
Signature:
_______________________________________
_______________________________________
(Print Name)
Address:
_______________________________________
_______________________________________
_______________________________________
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PARTIAL EXERCISE OF WARRANT
TO BE EXECUTED BY THE REGISTERED HOLDER IF HE
DESIRES TO EXERCISE IN PART ONLY THE WITHIN WARRANT
The undersigned hereby exercises the right to purchase ___________ shares of the
total shares of Common Stock covered by the within Warrant at the date of this
subscription and herewith makes payment of the sum of $____________ representing
the Purchase Price of $1.80 per share in effect at this date. Certificates for
such shares and a new Warrant of like tenor and date for the balance of the
shares not subscribed for shall be issued in the name of and delivered to the
undersigned, unless otherwise specified by written instructions, signed by the
undersigned and accompanying this subscription.
(The following paragraph need be completed only if the Purchase Price and number
of shares of Common Stock specified in the within Warrant have been adjusted
pursuant to Section 7.)
The shares hereby subscribed for constitute ___________ shares of Common Stock
(to the nearest whole share) resulting from adjustment of __________ shares of
the total of _________ shares of Common Stock covered by the within Warrant, as
said shares were constituted at the date of the Warrant.
Dated:__________________
Signature:
_______________________________________
_______________________________________
(Print Name)
Address:
_______________________________________
_______________________________________
_______________________________________
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