Contract
Exhibit 4.2
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS.
NEITHER THIS WARRANT, SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE TRANSFERRED EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND APPLICABLE
STATE SECURITIES LAWS.
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER DISPOSITION AND VOTING OF ANY OF
THE SHARES OF COMMON STOCK OF THE COMPANY ACQUIRED PURSUANT TO THE EXERCISE OF THIS WARRANT ARE
RESTRICTED BY THE TERMS OF THE THIRD AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT, DATED AS OF JUNE
10, 2008, AMONG THE COMPANY AND CERTAIN OF ITS STOCKHOLDERS. THE COMPANY WILL NOT REGISTER THE
TRANSFER OF SUCH SHARES OF COMMON STOCK ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL THE TRANSFER
HAS BEEN MADE IN COMPLIANCE WITH THE TERMS OF THE STOCKHOLDERS AGREEMENT, A COPY OF WHICH WILL BE
PROVIDED AT NO COST TO THE HOLDER HEREOF UPON WRITTEN REQUEST TO THE COMPANY.
ASPEN AEROGELS, INC.
COMMON STOCK PURCHASE WARRANT
This document (this “Warrant”) certifies that, for good and valuable consideration, Aspen
Aerogels, Inc., a Delaware corporation (the “Company”), grants to [IMPORT WARRANTHOLDER] (the
“Warrantholder”), the right to subscribe for and purchase from the Company, on or before [IMPORT
EXPIRATION TIME] (the “Expiration Time”), an aggregate of [IMPORT SHARE NUMBERS] validly issued,
fully paid and nonassessable shares of Common Stock (the “Warrant Shares”), at the exercise price
per share of $4.423 (the “Exercise Price”), all subject to the terms, provisions, conditions and
adjustments (including adjustments to number of shares and Exercise Price) herein set forth. The
Company acknowledges that the cash consideration paid by Warrantholder 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 Warrantholder as the obligee thereunder (the “Financing
Arrangement”) and that this Warrant amends and restates all warrants previously issued to the
Warrantholder in connection with the Financing Arrangement. Capitalized terms used herein which
are not specifically defined in other sections of this Warrant, shall have the meanings set forth
in Section 11.
1. Warrant Term. The purchase rights represented by this Warrant are
exercisable, in whole or in part, at any time and from time to time, from and after the Warrant
grant date of [IMPORT GRANT DATE], and on or prior to the earlier of the (i) Expiration Time, or
(ii) in the event of a Corporate Event.
2. Exercise of Warrant; Payment of Taxes.
2.1 Exercise of Warrant. The purchase rights represented by this Warrant may be
exercised by the Warrantholder, in whole or in part and from time to time, by the surrender of this
Warrant (with a duly executed notice of exercise form, the “Exercise Form”, in the form attached
hereto as Exhibit A) at the principal office of the Company and by the payment to the
Company of an amount equal to the then applicable Exercise Price per share multiplied by the number
of Shares then being purchased. If the Warrantholder is not already a party thereto, the
Warrantholder shall also execute, upon request from the Company, a joinder agreement to the
Stockholder’s Agreement, as amended and restated, such joinder agreement to be in form and
substance mutually agreeable to both Warrantholder and Company. The Warrantholder shall be deemed
to have become the holder(s) of record of, and shall be treated for all purposes as the record
holder(s) of, the Shares represented thereby (and such Shares shall be deemed to have been issued)
immediately prior to the close of business on the date or dates upon which this Warrant is
exercised.
2.2 Non-Cash Exercise.
(a) In lieu of payment in cash, the rights represented by this Warrant may also be exercised
at any time by a written notice of exercise in the form of Exhibit A attached
hereto, providing for the non-cash exercise of this Warrant for the Shares equal to the
value (as determined below) of this Warrant (or the portion thereof being exercised),
specifying that this non-cash exercise election has been made, and the net number of Shares
to be issued after giving effect to such non-cash exercise. In the event the Warrantholder
makes such election, Company shall issue to the holder a number of shares computed using the
following formula:
X
|
= | Y(A-B) | ||
A |
Where:
X = the number of Shares to be issued to the holder
Y = the number of Shares purchasable under the Warrant or, if only a portion of the Warrant
is being exercised, the portion of the Warrant being exercised (as of the date of such
non-cash exercise)
A = the Fair Market Value of one Share of Common Stock (as of the date of such non-cash
exercise)
B = Exercise Price of one Share of Common Stock (as adjusted to the date of such non-cash
exercise)
(b) For purposes of this Section 2.2, the “Fair Market Value” of one share of the
Company’s Common Stock shall be equal to either (i) if the exercise of this Warrant occurs in
connection with an initial public offering of the Company, then the Fair Market Value shall be
equal to the “initial price to public” specified in the final prospectus with respect to the
initial public offering, or (ii) if the exercise of this Warrant occurs after an initial public
offering of the Company but not in connection therewith, then the Fair Market Value shall be equal
to the average of the closing price(s) of the Company’s Common Stock as quoted over the counter or
on any exchange on which the Common Stock is listed as such closing prices are published in The
Wall Street Journal for the fifteen trading days (or such
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lesser number of trading days as the stock may have been actually trading) ending on the day
prior to the date of determination of Fair Market Value. Notwithstanding the foregoing, if the
Warrant is exercised in connection with a merger or sale of all or substantially all of the
Company’s assets, Fair Market Value shall mean the value that would have been allocable to or
received in respect of a Warrant Share had the Warrant been exercised prior to such merger or sale.
If the Common Stock is not traded Over The Counter or on an exchange, or if the Warrant is not
exercised in connection with a merger or sale of all or substantially all of its assets, then the
Fair Market Value shall be determined in good faith by the Company’s board of directors. If the
holder hereof does not agree with the determination of Fair Market Value as determined by the
Company’s board of directors, the Company and the holder hereof shall negotiate an appropriate Fair
Market Value. If after ten (10) days, the Company and the holder cannot agree, then the holder may
request that the Fair Market Value be determined by an investment banker of national reputation
selected by the Company and reasonably acceptable to the Warrantholder. The fees and expenses of
such investment banker shall be borne by the Company unless the Fair Market Value determined by
such investment banker is equal to or less that the Fair Market Value as determined by the Company,
in which event the fees and expenses of such investment banker shall be borne by the holder hereof.
2.3 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 the Company’s Common Stock subject to this Warrant is greater than the Exercise Price,
then in effect as adjusted pursuant to this Warrant, this Warrant shall be deemed automatically
exercised pursuant to Section 2.2 above, even if not surrendered. For purposes of such automatic
exercise, the Fair Market Value of the Company’s Common Stock upon such expiration shall be
determined pursuant to Section 2.2 (b) above. To the extent this Warrant or any portion thereof is
deemed automatically exercised pursuant to this Section, the Company agrees to promptly notify the
Warrantholder of the number of Shares, if any, the holder hereof is to receive by reason of such
automatic exercise.
2.4 Exercise in Connection with an Initial Public Offering, Sale or Merger.
Notwithstanding any other provision hereof, if the exercise of all or any portion of this Warrant
is made or to be made in connection with the occurrence of a public offering, sale or merger of the
Company, the exercise of all or any portion of this Warrant shall, at the election of the
Warrantholder, be conditioned upon the consummation of the public offering, sale or merger of the
Company in which case such exercise shall not be deemed to be effective until the consummation of
such transaction. In the event that transaction is not consummated within 45 days of the targeted
date of the transaction, any such exercise shall, at the election of the Warrantholder, be deemed
rescinded.
2.5 Warrant Shares Certificate. A stock certificate for the Warrant Shares
specified in the Exercise Form shall be delivered to the Warrantholder within five (5) Business
Days after receipt of the Exercise Form by the Company and payment by the Warrantholder of the
aggregate Exercise Price (or non-cash exercise in lieu of payment as permitted in Section 2.2),
along with a check from the Company in lieu of any fractional shares which the Warrantholder would
be entitled to purchase under this Warrant. If this Warrant was exercised in part, the Company
shall, at the time of delivery of the stock certificate, deliver to the Warrantholder a new Warrant
evidencing the right to purchase the remaining Warrant Shares, which new Warrant shall in all other
respects be identical with this Warrant.
2.6 Payment of Taxes. The Company shall pay all expenses, taxes and other
governmental charges with respect to the issue or delivery of the Warrant Shares, unless such tax
or charge is imposed by law upon the Warrantholder.
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3. Restrictions on Transfer; Restrictive Legends.
3.1 Restrictions on Transfer. This Warrant and the Warrant Shares issuable upon
exercise of all or part of this Warrant are unregistered securities that are subject to the
restrictions on transfer imposed by the Securities Act and applicable state securities laws and may
not be offered, sold, transferred, pledged or otherwise disposed of, in whole or in part, to any
Person other than in accordance with the Securities Act and applicable state securities laws. The
Warrant Shares issuable upon exercise of all or part of this Warrant are also subject to additional
restrictions on transfer set forth in the Stockholders Agreement and may not be offered, sold,
transferred, pledged or otherwise disposed of, in whole or in part, to any Person other than in
accordance with the Stockholders Agreement.
3.2 Restrictive Legends. Until such time as the restrictions on transfer imposed
on this Warrant by the Securities Act and applicable state securities laws shall no longer be
effective, this Warrant, any Warrant issued to the Warrantholder upon the partial exercise of this
Warrant pursuant to Section 2, and any Warrant issued to the Warrantholder in substitution
for this Warrant pursuant to Section 7 shall be stamped or otherwise imprinted with a
legend in substantially the form as set forth on the cover of this Warrant. Until such time as the
restrictions on transfer imposed on the Warrant Shares by the Securities Act, applicable state
securities laws and the Stockholders Agreement shall no longer be effective, each stock certificate
for Warrant Shares and each stock certificate issued upon the direct or indirect transfer of any
such Warrant Shares shall be stamped or otherwise imprinted with a legend in substantially the form
provided in the Stockholders’ Agreement. Upon the termination of such restrictions on transfer,
the Warrantholder may require the Company to issue a Warrant or a stock certificate for Warrant
Shares, in each case without a legend, if and to the extent permitted by, and in accordance with,
the Stockholders Agreement and applicable law.
4. Reservation and Registration of Shares. The Company covenants and agrees as
follows:
4.1 Validly Issued and Free of Encumbrances. All Warrant Shares issued upon the
exercise of all or any part of this Warrant shall, upon issuance and payment of the Exercise Price
therefore (or upon non-cash exercise as permitted herein), be validly issued, fully paid and
nonassessable, issued in compliance with all applicable federal and state securities laws, and free
from all taxes, liens and charges with respect to the issue thereof, and not subject to any
preemptive rights.
4.2 Sufficient Authorized Shares. During the period within which the rights
represented by this Warrant may be exercised, the Company shall at all times have authorized and
reserved, for the purpose of issuance of Common Stock upon any exercise of the purchase rights
evidenced by this Warrant, and shall keep available free from preemptive rights, a sufficient
number of shares of its Common Stock to provide for the exercise of the rights represented by this
Warrant.
4.3 Noncontravention. The Company shall not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, spin-off, consolidation, merger,
dissolution, issue or sale of securities or any other action or inaction, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant to be observed or performed
hereunder, and shall at all times in good faith assist in performing, carrying out, and giving
effect to the terms hereof and in the taking of all such actions as may be necessary or appropriate
in order to protect the rights of the Warrantholder against dilution or other impairment.
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5. Anti-Dilution Adjustments. From and after the date hereof and until the
Expiration Date, notwithstanding the fact that no Warrant Shares shall be issued and outstanding,
the Exercise Price, and the number and type of Warrant Shares or other securities to be received
upon exercise of the Warrant, shall be subject to adjustment as follows:
5.1 Dividend, Subdivision, Combination or Reclassification of Common Stock. If
the Company shall, at any time or from time to time, prior to exercise in full of this Warrant: (a)
pay a dividend or otherwise make a distribution on the outstanding shares of Common Stock payable
in Capital Stock; (b) subdivide the outstanding shares of Common Stock into a larger number of
shares; (c) combine the outstanding shares of Common Stock into a smaller number of shares; or (d)
issue any shares of its Capital Stock in a reclassification of the Common Stock (other than any
such event for which an adjustment is made pursuant to another clause of this Section 5),
then, and in each such case, the Exercise Price and the number of Warrant Shares exercisable
hereunder in effect immediately prior to such event shall be adjusted (and any other appropriate
actions shall be taken by the Company) so that the Warrantholder shall thereafter be entitled to
receive, upon the exercise of the unexercised portion of this Warrant, the number of shares of
Common Stock or other securities of the Company that such Warrantholder would have owned or would
have been entitled to receive upon or by reason of any of the events described above, had this
Warrant been exercised immediately prior to the occurrence of such event. An adjustment made
pursuant to this Section 5.1 shall become effective retroactively: (x) in the case of any
such dividend or distribution, to a date immediately following the close of business on the record
date for the determination of holders of Common Stock entitled to receive such dividend or
distribution; or (y) in the case of any such subdivision, combination or reclassification, to the
close of business on the day upon which such corporate action becomes effective.
5.2 Issuance of Common Stock or Common Stock Equivalents below Exercise Price. If
the Company shall, at any time or from time to time, prior to exercise in full of this Warrant,
issue or sell any shares of Common Stock or Common Stock Equivalents at a “New Issue Price” (as
defined below) per share of Common Stock or Common Stock Equivalent that is less than the Exercise
Price then in effect as of the record date or Issue Date referred to in the following sentence, as
the case may be (the “Relevant Date”), other than issuances of Excluded Stock, then, and in each
such case, the Exercise Price then in effect shall be adjusted by multiplying the Exercise Price in
effect immediately prior to the Relevant Date by a fraction:
(a) the numerator of which shall be the sum of the number of shares of Common Stock
outstanding on the Relevant Date (assuming conversion or exercise of all Common Stock
Equivalents into Common Stock) plus (i) in the case of Common Stock, the number of shares of
Common Stock which the aggregate consideration received by the Company for the total number
of such additional shares of Common Stock so issued would purchase at the Exercise Price on
the Relevant Date, or (ii) in the case of Common Stock Equivalents, the number of shares of
Common Stock which the aggregate amount of the consideration paid for, or the aggregate
exercise price of, such Common Stock Equivalents, plus any additional consideration payable
upon conversion, exchange or exercise of such Common Stock Equivalents, would purchase at
the Exercise Price on the Relevant Date; and
(b) the denominator of which shall be the sum of (i) the number of shares of Common
Stock outstanding on the Relevant Date (assuming conversion or exercise of all Common Stock
Equivalents into Common Stock) plus (ii) the number of additional shares of Common Stock
issued or to be issued or, in the case of Common Stock Equivalents, the maximum number of
shares of Common Stock into which such Common Stock Equivalents initially may convert,
exchange or be exercised.
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Such adjustment shall be made whenever such shares of Common Stock or Common Stock Equivalents
are issued, and shall become effective retroactively, in the case of an issuance to the
stockholders of the Company, as such, to a date immediately following the close of business on the
record date for the determination of stockholders entitled to receive such shares of Common Stock
or Common Stock Equivalents, and, in all other cases, on the date of such issuance (the “Issue
Date”); provided, however, that the determination as to whether an adjustment is required to be
made pursuant to this Section 5.2 shall only be made upon the issuance of such shares of
Common Stock or Common Stock Equivalents, and not upon the issuance of any security into which the
Common Stock Equivalents convert, exchange or may be exercised. For purposes of this Section
5.2, the “New Issue Price” of any shares of Common Stock shall be equal to the price per share
received by the Company upon the consummation of such sale and the “New Issue Price” of any Common
Stock Equivalents shall be equal to (x) the sum of (A) the price for such Common Stock Equivalent
plus (B) any additional consideration payable (without regard to any anti-dilution adjustments)
upon the conversion, exchange or exercise of such Common Stock Equivalent, divided by (y) the
number of shares of Common Stock initially underlying such Common Stock Equivalent.
5.3 Certain Distributions. If the Company shall, at any time or from time to
time, prior to exercise in full of this Warrant, distribute to all holders of shares of the Common
Stock (including any such distribution made in connection with a merger or consolidation in which
the Company is the resulting or surviving Person and the Common Stock is not changed or exchanged)
cash, evidences of indebtedness of the Company or another issuer, securities of the Company or
another issuer or other assets or rights or warrants to subscribe for or purchase securities of the
Company (excluding those distributions in respect of which an adjustment in the Exercise Price is
made pursuant to another paragraph of this Section 5), then, and in each such case:
(a) the Exercise Price then in effect shall be adjusted (and any other appropriate
actions shall be taken by the Company) by multiplying the Exercise Price in effect
immediately prior to the date of such distribution by a fraction, (i) the numerator of which
shall be the Current Market Price of the Common Stock immediately prior to the date of
distribution less the then fair market value (as determined by the Board of Directors in the
exercise of their fiduciary duties) of the portion of the cash, evidences of indebtedness,
securities or other assets so distributed or of such rights or warrants applicable to one
share of Common stock, and (ii) the denominator of which shall be the Current Market Price
of the Common Stock immediately prior to the date of distribution (but such fraction shall
not be greater than one); provided, however, that no adjustment shall be made upon such
distribution pursuant to this Section 5.3(a) if an adjustment is made upon such
distribution pursuant to Section 6; and
(b) the number of Warrant Shares for which this Warrant is exercisable immediately
prior to such distribution shall be adjusted (and any other appropriate actions shall be
taken by the Company) by multiplying the then-current number of Warrant Shares in effect
immediately prior to the date of such distribution by a fraction, (i) the numerator of which
shall be the Exercise Price in effect immediately prior to immediately prior to the date of
distribution, and (ii) the denominator of which shall be the adjusted Exercise Price as
determined pursuant to clause (a) of this Section 5.3 (but such fraction
shall not be less than one); provided, however, that no adjustment shall be made upon such
distribution pursuant to this Section 5.3(b) if an adjustment is made upon such
distribution pursuant to Section 6.
Such adjustments shall be made whenever any such distribution is made and shall become
effective retroactively to a date immediately following the close of business on the record date
for the determination of stockholders entitled to receive such distribution.
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5.4 Other Changes. INTENTIONALLY DELETED
5.5 De Minimus Adjustments. Notwithstanding anything herein to the contrary, no
adjustment under this Section 5 need be made to the Exercise Price and the number of
Warrant Shares unless such adjustment would require an increase or decrease of at least one percent
(1%) of the Exercise Price then in effect. Any lesser adjustment shall be carried forward and
shall be made at the time of and together with the next subsequent adjustment which, together with
any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at
least one percent (1%) of such Exercise Price. Any adjustment to the Exercise Price and the number
of Warrant Shares carried forward and not theretofore made shall be made immediately prior to the
exercise of this Warrant.
5.6 Notice of Adjustment under Section 5. The Company shall, no later than twenty
(20) Business Days prior to the occurrence of any event that would result in an adjustment pursuant
to this Section 5, provide the Warrantholder with a written notice describing such event in
reasonable detail and setting forth the Exercise Price and number of Warrant Shares, as adjusted as
a result of such event.
5.7 Reclassification, Reorganization, Change or Conversion. In case of any
reclassification, reorganization, change or conversion of securities of the class issuable upon
exercise of this Warrant (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination), then in any of
these events, the Company shall execute a replacement warrant (a “New Warrant”), in form and
substance reasonably satisfactory to the holder of this Warrant, upon the exercise of which (and at
a total purchase price under the New Warrant not to exceed that payable upon the exercise in full
of this Warrant) the holder of the New Warrant shall receive, in lieu of each Share receivable upon
the exercise of this Warrant, the same kind and amount of shares of stock, other securities, money
and property receivable by a holder of one share of Common Stock upon such reclassification,
reorganization, change or conversion. Such New Warrant shall provide for adjustments that shall be
as nearly equivalent as may be practicable to the adjustments provided for in this Section 5. The
provisions of this section 5.7 shall similarly apply to successive reclassifications,
reorganizations, changes, or conversions.
Whenever the Exercise Price shall be adjusted pursuant to the provisions of this Warrant, the
Company shall within ten (10) days of such adjustment deliver a certificate signed on behalf of the
Company by its chief financial officer to the Warrantholder setting forth, in reasonable detail,
the event requiring the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated, and the Exercise Price after giving effect to such adjustment.
6. Intentionally Deleted.
7. Exercise or Termination upon Corporate Event. The Company shall, no later than
twenty (20) Business Days prior to the anticipated consummation date of any Corporate Event,
provide the Warrantholder with a written notice describing such Corporate Event in reasonable
detail and setting forth the consideration (i.e., securities, cash and other property) receivable
for each share of Common Stock pursuant to such Corporate Event. If the aggregate Exercise Price,
as of such consummation date, is equal to or greater than the aggregate value of the securities,
cash and other property that would have been received in connection with Corporate Event by a
holder of the number of shares of Common Stock for which this Warrant was exercisable immediately
prior to such Corporate Event (the “Exercise Proceeds”), then this Warrant shall terminate upon the
consummation of such Corporate Event. If the aggregate Exercise Price, as of such consummation
date, is less than the aggregate value of the Exercise Proceeds, then the Warrantholder shall be
entitled to exercise this
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Warrant in connection with such Corporate Event and shall automatically receive upon the
consummation of such Corporate Event, in lieu of the Warrant Shares, the Exercise Proceeds.
8. Loss or Destruction of Warrant. Subject to the terms and conditions hereof,
upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, of such
bond or indemnification as the Company may reasonably require, and, in the case of such mutilation,
upon surrender and cancellation of this Warrant, the Company will execute and deliver to the
Warrantholder a new Warrant of like tenor.
9. Ownership of Warrant. 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.
10. Amendments. Any provision of this Warrant may be amended and the observance
thereof waived only with the written consent of the Company and the Warrantholder.
11. Definitions. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
“Affiliate” means, (1) with respect to any Person, any of (a) a director, officer or
stockholder holding 5% or more of the capital stock (on a fully diluted basis) of such Person, (b)
a spouse, parent, sibling or descendant of such Person (or a spouse, parent, sibling or descendant
of any director or officer of such Person) and (c) any other Person that, directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under common control with,
another Person or (2) in any event, any Person meeting the definition of “Affiliate” set forth in
Rule 405 under the Securities Act. The term “control” includes, without limitation, the
possession, directly or indirectly, of the power to direct the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
“Board of Directors” means the Board of Directors of the Company.
“Business Day” means any day other than a Saturday, Sunday or a day on which national
banks are authorized by law to close in the Commonwealth of Massachusetts.
“Capital Stock” means, with respect to any Person, any and all shares, interests,
participation, rights in, or other equivalents (however designated and whether voting or
non-voting) of, such Person’s capital stock and any and all rights, warrants or options
exchangeable for or convertible into such capital stock (but excluding any debt security whether or
not it is exchangeable for or convertible into such capital stock).
“Common Stock” means the Company’s presently authorized Common Stock, and any stock
into or for which such Common Stock may hereafter be converted or exchanged pursuant to the
Certificate of Incorporation of the Company as amended from time to time as provided by law and in
such Certificate of Incorporation.
“Common Stock Equivalent” means any security or obligation which is by its terms
convertible into shares of Common Stock or another Common Stock Equivalent, including, without
limitation, any option, warrant or other subscription or purchase right with respect to Common
Stock.
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“Corporate Event” means: (i) the sale, transfer, exchange or other disposition in one
transaction or a series of related transactions of all or substantially all of the Company’s
assets; (ii) any merger, consolidation or other corporate reorganization in one transaction or a
series of related transactions that results in the stockholders of the Company immediately prior to
such transaction holding less than fifty percent (50%) of the voting power of the surviving entity
of such transaction; (iii) the dissolution or liquidation of the Company; or (iv) the sale,
transfer, exchange or other disposition in one transaction or a series of related transactions of
all or substantially all of the Company’s Common Stock, but does not include any one transaction or
series of related transactions the sole purpose and effect of which is to change the state or type
of organization of the Company (e.g., to change the Company from a Delaware corporation to a New
York corporation or from a corporation to a limited liability company).
“Current Market Price” per share shall mean, as of the date of determination, (a) the
average of the daily Market Price under clause (a), (b) or (c) of the
definition thereof of the Common Stock during the immediately preceding thirty (30) trading days
ending on such date, and (b) if the Common Stock is not then listed or admitted to trading on any
national securities exchange or quoted in the over-the-counter market, then the Market Price under
clause (d) of the definition thereof on such date.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Stock” has the meaning set forth in the Stockholders Agreement.
“Market Price” shall mean, as of the date of determination, (a) the closing price per
share of Common Stock on such date published in The Wall Street Journal or, if no such
closing price on such date is published in The Wall Street Journal, the average of the
closing bid and asked prices on such date, as officially reported on the principal national
securities exchange (including, without limitation, The Nasdaq Stock Market, Inc.) on which the
Common Stock is then listed or admitted to trading; or (b) if the Common Stock is not then listed
or admitted to trading on any national securities exchange but is designated as a national market
system security by the National Association of Securities Dealers, Inc., the last trading price of
the Common Stock on such date; or (c) if there shall have been no trading on such date or if the
Common Stock is not so designated, the average of the reported closing bid and asked prices of the
Common Stock on such date as shown by the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotations System and reported by any member firm of the New
York Stock Exchange selected by the Company; or (d) if none of clauses (a), (b) or
(c) is applicable, a market price per share determined at the Company’s expense by an appraiser
chosen by the Warrantholder, or, if no such appraiser is so chosen more than ten (10) Business Days
after notice of the necessity of such calculation shall have been delivered by the Company to the
Warrantholder, then by an appraiser chosen by the Company and reasonably satisfactory to the
Warrantholder. Any determination of the Market Price by an appraiser shall be based on a valuation
of the Company as an entirety without regard to any discount for minority interests or disparate
voting rights among classes of Capital Stock.
“Person” means any individual, firm, corporation, partnership, limited liability
company, trust, incorporated or unincorporated association, joint venture, joint stock company,
governmental authority or other entity of any kind, and shall include any successor (by merger or
otherwise) of such entity.
“QPO” means an underwritten public offering (underwritten by a reputable underwriter of
national reputation) of shares of Common Stock registered pursuant to the Securities Act.
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“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the United States Securities and Exchange Commission thereunder.
“Stockholders’ Agreement” means the Third Amended and Restated Stockholders’
Agreement, dated as of June 10, 2008, by and among the Company and each other stockholder of the
Company party thereto, as amended from time to time.
12. Miscellaneous Provisions.
12.1 Entire Agreement. This Warrant constitutes the entire agreement between the
Company and the Warrantholder with respect to this Warrant.
12.2 Binding Effect; Benefits. This Warrant shall inure to the benefit of and
shall be binding upon the Company and the Warrantholder and their respective permitted successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or shall confer on any
person other than the Company and the Warrantholder, or their respective permitted successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of this Warrant.
12.3 Section and Other Headings. The section and other headings contained in this
Warrant are for reference purposes only and shall not be deemed to be a part of this Warrant or to
affect the meaning or interpretation of this Warrant.
12.4 Notices. All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be by registered or certified first-class
mail, return receipt requested, telecopier, courier service, overnight mail or personal delivery:
If to the Company:
Aspen Aerogels, Inc.
00 Xxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
00 Xxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.
If to the Warrantholder:
[IMPORT WARRANTHOLDER ADDRESS INFORMATION]
All such notices and communications shall be deemed to have been duly given when
delivered by hand, if personally delivered; when delivered by courier or overnight mail, if
delivered by commercial courier service or overnight mail; five (5) Business Days after being
deposited in the mail,
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postage prepaid, if mailed; and when receipt is mechanically acknowledged, if telecopied. Any
party may, by notice given in accordance with this Section 12.4, designate another address
or Person for receipt of notices hereunder.
12.5 Issuance Tax, Attorneys’ Fees, Notices, Successors
(a) Issuance Tax. The issuance of certificates for shares of Common Stock upon
exercise of this Warrant shall be made without charge to the holder hereof for any issuance tax in
respect hereof, provided that the Company shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issuance and delivery of any certificate in a name other
than that of the holder of this Warrant.
(b) Attorneys’ Fees. In the event of an action, suit or proceeding brought under
or in connection herewith, the prevailing party therein shall be entitled to recover from, and the
other party hereto agrees to pay, the prevailing party’s costs and expenses in connection
therewith, including reasonably attorneys’ fees.
(c) Registration Agreement. The Warrantholder shall be entitled to all of the
rights (excluding demand registration rights) set forth in that certain Third Amended and Restated
Registration Rights Agreement (as the same may be amended from time to time) dated as of June 10,
2008 (the “Registration Rights Agreement”) among the Company and the parties thereto on the terms
and conditions set forth therein, as if such terms and conditions were set forth in this Warrant. A
copy of said Registration Rights Agreement has been provided to the Warrantholder. Simultaneously
with the execution of this Warrant, the Warrantholder shall execute, at the option of the Company,
either a counterpart signature page to such Registration Rights Agreement, or an amendment to the
Registration Rights Agreement, either of which document shall add the Warrantholder as a party
thereto and give the Warrantholder all registration and other rights (excluding demand registration
rights) as and to the extent provided therein to “Investors” thereunder. Company and the Purchaser
hereby further agree that for the purposes of the Registration Rights Agreement, the Shares
issuable upon exercise of this Warrant are “Registrable Securities,” as that term is defined in the
Registration Rights Agreement.
(d) Stockholders’ Agreement. The Warrantholder shall be entitled to all of the
rights (excluding rights of first refusal) set forth in the Stockholders’ Agreement, as if such
terms and conditions were set forth in this Warrant. A copy of said Stockholders’ Agreement has
been provided to the Warrantholder. Simultaneously with the execution of this Warrant, the
Warrantholder shall execute, at the option of the Company, either a counterpart signature page to
such Stockholders’ Agreement, or an amendment to the Stockholders’ Agreement, either of which
document shall add the Warrantholder as a party thereto and give the Warrantholder all rights and
be subject to the obligations (excluding rights of first refusal) as and to the extent provided
therein to “Investors” thereunder. Company and the Purchaser hereby further agree that for the
purposes of the Stockholders’ Agreement, the Shares issuable upon exercise of this Warrant will be
deemed to be Stock as that term is defined in the Stockholders’ Agreement.
12.6 Severability. Any term or provision of this Warrant which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable the terms and
provisions of this Warrant or affecting the validity or enforceability of any of the terms or
provisions of this Warrant in any other jurisdiction.
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12.7 Governing Law. All issues concerning this Warrant shall be governed by
and construed in accordance with the law of the State of Delaware, without regard to the conflicts
of law principles thereof.
12.8 Rights as Shareholders. No holder of this Warrant, as such, shall be
entitled to vote or receive dividends or be deemed the holder of Common Stock or otherwise be
entitled to any voting or other rights as a shareholder of the Company, until this Warrant shall
have been exercised and the Shares purchasable upon the exercise shall have become deliverable, as
provided herein.
13. Disposition of Warrant or Shares of Common Stock
With respect to any offer, sale or other transfer or disposition of this Warrant or any shares
of Common Stock acquired pursuant to the exercise of this Warrant prior to registration of such
shares, the holder hereof and each subsequent holder of this Warrant agrees to give written notice
to the Company prior thereto, describing briefly the manner thereof, together with a written
opinion of such holder’s counsel (if reasonably requested by the Company and reasonably
satisfactory to the Company) to the effect that (i) such offer, sale or other transfer or
disposition may be effected without registration or qualification of this Warrant or such shares of
Common Stock under the Act as then in effect, and (ii) indicating whether or not under the Act this
Warrant or the certificates representing such shares of Common Stock to be sold or otherwise
transferred or disposed of require any restrictive legend thereon in order to ensure compliance
with the Act; provided, however, that a written opinion of holder’s counsel shall not be
required in connection with any sale pursuant to Rule 144. This Warrant or the certificates
representing the shares of Common Stock thus transferred (except a transfer pursuant to Rule 144)
shall bear a legend as to the applicable restrictions on transferability in order to insure
compliance with the Act, unless in the aforesaid opinion of counsel for the holder, such legend is
not required in order to insure compliance with the Act. Upon any valid transfer of this Warrant or
portion thereof, Company agrees to reissue the Warrant (or Warrants in the case of a partial
transfer) and/or the Shares receivable upon the exercise hereof, and if the legend is not required,
such re-issuance shall be without said legend. Nothing herein shall restrict the transfer of this
Warrant (or any portion hereof) or the certificates representing the shares of Common Stock
acquired pursuant to the exercise of this Warrant by the initial holder hereof or any successor
holder to (i) any affiliate of such holder, including without limitation any partnership affiliated
with such holder, any partner of any such partnership or any successor corporation to the holder
hereof as a result of a merger or consolidation with or a sale of all or substantially all of the
stock or assets of the holder, (ii) any Person in a public offering pursuant to an effective
registration statement under the Act, (iii) to any other Person to the extent that the transfer to
such Person is exempt from the registration requirements of the Act and such Person agrees in
writing to be bound by all of the restrictions on transfer contained herein, or (iv) any Person or
Persons if the holder hereof shall also transfer or assign all or part of its interest in the
Financing Arrangement, and such Person agrees in writing to be bound by all of the restrictions on
transfer contained herein provided, however, that no such transfer may be made to any direct
competitor of the Company, which shall mean a Person engaged in the research, manufacture or sale
of aerogels, aerogel based products or insulation products. Any transfer described above must be
made in compliance with all applicable federal and state securities laws. The Company may issue
stop transfer instructions to its transfer agent in connection with the foregoing restrictions.
14. Warrantholder’s Representations
The Warrantholder acknowledges that it has had access to all material information concerning
the Company which it has requested. The Warrantholder also acknowledges that it has had the
opportunity to, and has to its satisfaction, questioned the officers of the Company with respect to
its
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investment hereunder. The Warrantholder represents that it understands that the Warrant and
the Common Stock are speculative investments, that it is aware of the Company’s business affairs
and financial condition and that it has acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the Warrant. The Warrantholder is purchasing the
Warrant and any Common Stock issued upon exercise thereof for investment for its own account only
and not with a view to, or for resale in connection with, any “distribution” thereof in violation
of the Act or applicable state securities laws. The Warrantholder further represents that it
understands that the Warrant and Common Stock have not been registered under the Act or applicable
state securities laws by reason of specific exemptions therefrom, which exemptions depend upon,
among other things, the bona fide nature of the Warrantholder’s investment intent as expressed
herein. The Warrantholder is an “accredited investor” as defined in Regulation D promulgated under
the Act.
15. Company’s Representations.
As a material inducement to the Warrantholder to purchase this Warrant, the Company hereby
represents and warrants that:
(a) The Company shall have made all filings under applicable federal and state securities
laws necessary to consummate the issuance of this Warrant pursuant to this Agreement in compliance
with such laws, except for such filings as may be made properly after the Grant Date.
(b) The copies of any existing stock purchase agreements and investor’s rights agreements
and the Company’s charter documents and bylaws which have been furnished to Warrantholder or the
Warrantholder’s counsel reflect all amendments made thereto at any time prior to the date hereof
and are correct and complete.
(c) With respect to the issuance of this Warrant or the issuance of the Common Stock upon
exercise of the Warrant, there are no statutory or contractual stockholders preemptive rights or
rights of refusal, except for any such rights contained in any stock purchase agreement and/or
investor’s rights agreements which have been waived. The Company has not violated any applicable
federal or state securities laws in connection with the offer, sale or issuance of any of its
capital stock, and the offer, sale and issuance of this Warrant does not require registration under
the Act or any applicable state securities laws. To the best of the Company’s knowledge, there are
no agreements between the Company’s stockholders with respect to the voting or transfer of the
Company’s capital stock or with respect to any other aspect of the Company’s affairs.
(d) The execution, delivery and performance of this Warrant have been duly authorized by
the Company. This Warrant constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms. The execution and delivery by the Company of this Warrant, the
issuance of the Common Stock upon exercise of the Warrant, and the fulfillment of and compliance
with the respective terms hereof and thereof by the Company, do not and shall not (i) conflict with
or result in a breach of the terms, conditions or provisions of, (ii) constitute a default under,
(iii) result in the creation of any lien, security interest, charge or encumbrance upon the
Company’s capital stock or assets pursuant to, (iv) give any third party the right to modify,
terminate or accelerate any obligation under, (v) result in a violation of, or (vi) require any
authorization, consent, approval, exemption or other action by or notice or declaration to, or
filing with, any court or administrative or governmental body or agency pursuant to, the charter or
bylaws of the Company or any subsidiary, or any law, statute, rule or regulation to which the
Company or any subsidiary is subject, or any agreement, instrument, order, judgment or decree to
which the Company or any
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subsidiary is subject, except for any such filings required under applicable “blue sky” or
state securities laws or required under Regulation D promulgated under the Act.
16. Company Financial Information.
Until such time as the Company shall have satisfied all of its obligations under the Financing
Arrangement, Company shall deliver to Warrantholder such financial information as is required under
the terms of the Financing Arrangement. From and after the date that the Company shall have
satisfied all of its obligations under the Financing Arrangement, and notwithstanding any other
agreement to the contrary between the parties hereto, the Company shall deliver to the
Warrantholder (so long as the Warrantholder holds all or any portion of the Warrant or any
Preferred Stock or any shares of Common Stock issuable upon conversion of the Preferred Stock) all
of the financial and other information delivered or required to be delivered by the Company to any
of its stockholders, in their capacities as stockholders. All such financial and other information
shall be delivered pursuant to this Section on a timely basis, but no later than 30 days after each
fiscal quarter end for quarterly statements and no later than 120 days after each fiscal year end
for annual statements.
* * * * *
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly
authorized officer.
Issued By:
|
Accepted By: | |
ASPEN AEROGELS, INC.
|
[IMPORT WARRANTHOLDER] | |
By: |
||
Xxxxxx X. Xxxxx
|
Name: | |
Chief Executive Officer
|
Title: |
Dated: [IMPORT ISSUE DATE]
Exhibit A: Exercise Form
(To be executed upon exercise of this Warrant)
| To: | Aspen Aerogels, Inc. (“Company”) 00 Xxxxxx Xxxx, Xxxxxxxxxxxx, XX 00000 Attention: Chief Financial Officer |
[1. The undersigned hereby elects to purchase __________________________ shares of Common
Stock of Company pursuant to the terms of the attached Warrants, and tenders herewith payment of
the purchase price of such shares in full.]
[1. The undersigned hereby elects to purchase __________________________ shares of Common
Stock of Company pursuant to a non-cash exercise of the Warrant as provided in Section 2 of the
Warrant.]
2. Check here if applicable: ___ The undersigned confirms that this exercise is made
in connection with the occurrence of a public offering, sale or merger of the Company, and
the undersigned further elects to condition this exercise of the Warrant upon the
consummation of said public offering, sale or merger of the Company. This exercise shall
not be deemed to be effective until the consummation of such transaction. In the event that
transaction is not consummated within 45 days of the targeted date of the transaction, the
undersigned will advise Company whether or not this exercise should be deemed rescinded.
2. Please issue a certificate or certificates representing said shares in the name of the
undersigned or in such other name or names as are specified below:
[IMPORT WARRANTHOLDER ADDRESS INFORMATION]
3. The undersigned represents that the aforesaid shares are being acquired for the account
of the undersigned for investment and not with a view to, or for resale in connection with, the
distribution thereof and that the undersigned has no present intention of distributing such shares.
| [IMPORT WARRANTHOLDER] |
||||
| By: | ||||
| (Signature) | ||||
| Its: | ||||
| Date: | ||||
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