Contract
EXHIBIT
10.17
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED,
OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY BE COMPANY COUNSEL)
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933 AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS.
To
Purchase Shares of the Series D Preferred Stock of
NEXX
SYSTEMS, INC.
Dated as
of July __, 2009, (the “Effective
Date”)
WHEREAS,
NEXX SYSTEMS, INC., a Delaware corporation (the “Company”), has
entered into a Third Amendment to Loan and Security Agreement of even date
herewith (the “Loan
Agreement”) with Hercules Technology Growth Capital, Inc., a Maryland
corporation (the “Warrantholder”);
WHEREAS,
the Company desires to grant to Warrantholder, in consideration for, among other
things, the financial accommodations provided for in the Loan Agreement, the
right to purchase shares of its Series D Preferred Stock pursuant to this
Warrant Agreement (the “Agreement” or the
“Warrant”);
NOW,
THEREFORE, in consideration of the Warrantholder executing and delivering the
Loan Agreement and providing the financial accommodations contemplated therein,
and in consideration of the mutual covenants and agreements contained herein,
the Company and Warrantholder agree as follows:
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SECTION
1.
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GRANT
OF THE RIGHT TO PURCHASE PREFERRED
STOCK.
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For value
received, the Company hereby grants to the Warrantholder, and the Warrantholder
is entitled, upon the terms and subject to the conditions hereinafter set forth,
to subscribe for and purchase, from the Company, the number of fully paid and
non-assessable shares of the Preferred Stock (as defined below) equal to the
quotient derived by dividing $300,000 by the Exercise Price. The
number and Exercise Price of such shares are subject to adjustment as provided
in Section 8. As used herein, the following terms shall have the
following meanings:
“Act” means the
Securities Act of 1933, as amended.
“Charter” means the
Company’s Certificate of Incorporation or other constitutional document, as may
be amended from time to time.
“Common Stock” means
the Company’s common stock;
“Exercise Price” means
the time weighted average of $_________ (the price per share at which the
Company last sold its Series D Preferred Stock) and the Next Round
Price.
“Initial Public
Offering” means the initial underwritten public offering of
the Company’s Common Stock pursuant to a registration statement under the Act,
which public offering has been declared effective by the Securities and Exchange
Commission (“SEC”);
“Merger Event” means a
merger or consolidation involving the Company in which the Company is not the
surviving entity, or in which the outstanding shares of the Company’s capital
stock are otherwise converted into or exchanged for shares of capital of another
entity.
1
“Next Round Price”
means the price per Share at which the Company sells or issues its equity
securities after the Effective Date in a financing or series of financings
generating cash proceeds of at least $1,000,000.
“Preferred Stock”
means the Series D Preferred Stock of the Company and any other stock into or
for which the Series D Preferred Stock may be converted or exchanged, and upon
and after the occurrence of an event which results in the automatic or voluntary
conversion, redemption or retirement of all (but not less than all) of the
outstanding shares of such Preferred Stock, including, without limitation, the
consummation of an Initial Public Offering of the Common Stock in which such a
conversion occurs, then from and after the date upon which such outstanding
shares are so converted, redeemed or retired, “Preferred Stock” shall mean such
Common Stock; and
“Purchase Price”
means, with respect to any exercise of this Agreement, an amount equal to the
Exercise Price as of the relevant time multiplied by the number of shares of
Preferred Stock requested to be exercised under this Agreement pursuant to such
exercise.
“Rights Agreement”
means that certain Amended and Restated Investor Rights Agreement among the
Company and the Investors named therein dated September 20, 2005.
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SECTION
2.
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TERM
OF THE AGREEMENT.
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Except as
otherwise provided for herein, the term of this Agreement and the right to
purchase Preferred Stock as granted herein shall commence on the Effective Date
and shall be exercisable for a period ending upon the earliest to occur of (i)
seven (7) years from the Effective Date; or (ii) three (3) years after the
Initial Public Offering. Notwithstanding the foregoing, if a Merger
Event occurs in which the Company’s Series D Preferred Stock is convertible into
cash and/or shares of the acquiring company, and such acquiring company’s common
stock is registered under the Securities Exchange Act of 1934, as amended, then
the Warrant shall be exercisable until immediately prior to the closing of such
Merger Event, after which time this Warrant shall be null and void
and without further force or effect.
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SECTION
3.
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EXERCISE
OF THE PURCHASE RIGHTS.
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(a) Exercise. The
purchase rights set forth in this Agreement are exercisable by the
Warrantholder, in whole or in part, at any time, or from time to time, prior to
the expiration of the term set forth in Section 2, by tendering to the Company
at its principal office a notice of exercise in the form attached hereto as
Exhibit I (the
“Notice of
Exercise”), duly completed and executed. Promptly upon receipt
of the Notice of Exercise and the payment of the Purchase Price in accordance
with the terms set forth below, and in no event later than three (3) days
thereafter, the Company shall issue to the Warrantholder a certificate for the
number of shares of Preferred Stock purchased and shall execute the
acknowledgment of exercise in the form attached hereto as Exhibit II (the
“Acknowledgment of
Exercise”) indicating the number of shares which remain subject to future
purchases, if any.
The
Purchase Price may be paid at the Warrantholder’s election either (i) by cash or
check, or (ii) by surrender of all or a portion of the Warrant for
shares of Preferred Stock to be exercised under this Agreement and, if
applicable, an amended Agreement representing the remaining number of shares
purchasable hereunder, as determined below (“Net
Issuance”). If the Warrantholder elects the Net Issuance
method, the Company will issue Preferred Stock in accordance with the following
formula:
X = Y(A-B)
A
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Where:
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X =
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the
number of shares of Preferred Stock to be issued to the
Warrantholder.
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Y
=
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the
number of shares of Preferred Stock requested to be exercised under this
Agreement.
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2
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A
=
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the
fair market value of one (1) share of Preferred Stock at the time of
issuance of such shares of Preferred
Stock.
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B
=
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the
Exercise Price.
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For
purposes of the above calculation, current fair market value of Preferred Stock
shall mean with respect to each share of Preferred Stock:
(i) if the
exercise is in connection with an Initial Public Offering, and if the Company’s
Registration Statement relating to such Initial Public Offering has been
declared effective by the SEC, then the fair market value per share shall be the
product of (x) the initial “Price to Public” of the Common Stock specified in
the final prospectus with respect to the offering and (y) the number of shares
of Common Stock into which each share of Preferred Stock is convertible at the
time of such exercise;
(ii) if the
exercise is after, and not in connection with an Initial Public Offering,
and:
(A) if the
Common Stock is traded on a securities exchange, the fair market value shall be
deemed to be the product of (x) the average of the closing prices over a five
(5) day period ending three days before the day the current fair market value of
the securities is being determined and (y) the number of shares of Common Stock
into which each share of Preferred Stock is convertible at the time of such
exercise; or
(B) if the
Common Stock is traded over-the-counter, the fair market value shall be deemed
to be the product of (x) the average of the closing bid and asked prices quoted
on the NASDAQ system (or similar system) over the five (5) day period ending
three days before the day the current fair market value of the securities is
being determined and (y) the number of shares of Common Stock into which each
share of Preferred Stock is convertible at the time of such
exercise;
(iii) if at any
time the Common Stock is not listed on any securities exchange or quoted in the
NASDAQ National Market or the over-the-counter market, the current fair market
value of Preferred Stock shall be the product of (x) the highest price per share
which the Company could obtain from a willing buyer (not a current employee or
director) for shares of Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by its Board of Directors and (y)
the number of shares of Common Stock into which each share of Preferred Stock is
convertible at the time of such exercise, unless the Company shall become
subject to a Merger Event, in which case the fair market value of Preferred
Stock shall be deemed to be the per share value received by the holders of the
Company’s Preferred Stock on a common equivalent basis pursuant to such Merger
Event.
Upon
partial exercise by either cash or Net Issuance, the Company shall promptly
issue an amended Agreement representing the remaining number of shares
purchasable hereunder. All other terms and conditions of such amended Agreement
shall be identical to those contained herein, including, but not limited to the
Effective Date hereof.
(b) Exercise
Prior to Expiration. To the extent this Agreement is not previously
exercised as to all Preferred Stock subject hereto, and if the fair market value
of one share of the Preferred Stock is greater than the Exercise Price then in
effect, this Agreement shall be deemed automatically exercised pursuant to
Section 3(a) (even if not surrendered) immediately before its
expiration. For purposes of such automatic exercise, the fair market
value of one share of the Preferred Stock upon such expiration shall be
determined pursuant to Section 3(a). To the extent this Agreement or
any portion thereof is deemed automatically exercised pursuant to this Section
3(b), the Company agrees to promptly notify the Warrantholder of the number of
shares of Preferred Stock, if any, the Warrantholder is to receive by reason of
such automatic exercise.
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SECTION
4.
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RESERVATION
OF SHARES.
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During
the term of this Agreement, the Company will at all times have authorized and
reserved a sufficient number of shares of its Preferred Stock to provide for the
exercise of the rights to purchase Preferred Stock as provided for herein, and
shall have authorized and reserved a sufficient number of shares of its Common
Stock to provide for the conversion of the Preferred Shares available
hereunder.
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SECTION
5.
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NO
FRACTIONAL SHARES OR SCRIP.
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No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Agreement, but in lieu of such fractional shares the
Company shall make a cash payment therefor upon the basis of the Exercise Price
then in effect.
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SECTION
6.
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NO
RIGHTS AS SHAREHOLDER/STOCKHOLDER.
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This
Agreement does not entitle the Warrantholder to any voting rights or other
rights as a shareholder/stockholder of the Company prior to the exercise of this
Agreement.
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SECTION
7.
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WARRANTHOLDER
REGISTRY.
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The
Company shall maintain a registry showing the name and address of the registered
holder of this Agreement. Warrantholder’s initial address, for
purposes of such registry, is set forth below Warrantholder’s signature on this
Agreement. Warrantholder may change such address by giving written
notice of such changed address to the Company.
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SECTION
8.
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ADJUSTMENT
RIGHTS.
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The
Exercise Price and the number of shares of Preferred Stock purchasable hereunder
are subject to adjustment, as follows:
(a) Reserved.
(b) Merger
Event. Subject to the provisions of Section 2 of this
Agreement, if at any time there shall be Merger Event, then, as a part of such
Merger Event, lawful provision shall be made so that the Warrantholder shall
thereafter be entitled to receive, upon exercise of this Agreement, the number
of shares of preferred stock or other securities or property of the successor
corporation resulting from such Merger Event that would have been issuable if
Warrantholder had exercised this Agreement immediately prior to the Merger
Event. Subject to the provisions of Section 2 of this Agreement, in
any such case, appropriate adjustment (as determined in good faith by the
Company’s Board of Directors) shall be made in the application of the provisions
of this Agreement with respect to the rights and interests of the Warrantholder
after the Merger Event to the end that the provisions of this Agreement
(including adjustments of the Exercise Price and number of shares of Preferred
Stock purchasable) shall be applicable in their entirety, and to the greatest
extent possible. Without limiting the foregoing, in connection with
any Merger Event, upon the closing thereof, and subject to the provisions of
Section 2 of this Agreement, the successor or surviving entity shall assume the
obligations of this Agreement. In connection with a Merger Event and
upon Warrantholder’s written election to the Company, the Company shall cause
this Warrant Agreement to be exchanged for the consideration that Warrantholder
would have received if Warrantholder chose to exercise its right to have shares
issued pursuant to the Net Issuance provisions of this Warrant Agreement without
actually exercising such right, acquiring such shares and exchanging such shares
for such consideration
(c) Reclassification
of Shares. Except as set forth in Section 8(a), if the Company at any
time shall, by combination, reclassification, exchange or subdivision of
securities or otherwise, change any of the securities as to which purchase
rights under this Agreement exist into the same or a different number of
securities of any other class or classes, this Agreement shall thereafter
represent the right to acquire such number and kind of securities as would have
been issuable as the result of such change with respect to the securities which
were subject to the purchase rights under this Agreement immediately prior to
such combination, reclassification, exchange, subdivision or other
change.
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(d) Subdivision
or Combination of Shares. If the Company at any time shall combine or
subdivide its Preferred Stock, (i) in the case of a subdivision, the Exercise
Price shall be proportionately decreased, and the number of shares of Preferred
Stock issuable upon exercise of this Agreement shall be proportionately
increased, or (ii) in the case of a combination, the Exercise Price shall be
proportionately increased, and the number of shares of Preferred Stock issuable
upon the exercise of this Agreement shall be proportionately
decreased.
(e) Stock
Dividends. If the Company at any time while this Agreement is
outstanding and unexpired shall:
(i) pay a
dividend with respect to the Preferred Stock payable in Preferred Stock, then
the Exercise Price shall be adjusted, from and after the date of determination
of [shareholders/stockholders] entitled to receive such dividend or
distribution, to that price determined by multiplying the Exercise Price in
effect immediately prior to such date of determination by a fraction (A) the
numerator of which shall be the total number of shares of Preferred Stock
outstanding immediately prior to such dividend or distribution, and (B) the
denominator of which shall be the total number of shares of Preferred Stock
outstanding immediately after such dividend or distribution; or
(ii) make any
other distribution with respect to Preferred Stock (or stock into which the
Preferred Stock is convertible), except any distribution specifically provided
for in any other clause of this Section 8, then, in each such case, provision
shall be made by the Company such that the Warrantholder shall receive upon
exercise or conversion of this Warrant a proportionate share of any such
distribution as though it were the holder of the Preferred Stock (or other stock
for which the Preferred Stock is convertible) as of the record date fixed for
the determination of the stockholders of the Company entitled to receive such
distribution.
(f) Antidilution
Rights. Additional antidilution rights applicable to the Preferred Stock
purchasable hereunder are as set forth in the Company’s Charter and shall be
applicable with respect to the Preferred Stock issuable
hereunder. The Company shall promptly provide the Warrantholder with
any restatement, amendment, modification or waiver of the Charter; provided, that no
such amendment, modification or waiver shall impair or reduce the antidilution
rights applicable to the Preferred Stock as of the date hereof unless such
amendment, modification or waiver affects the rights of Warrantholder with
respect to the Preferred Stock in the same manner as it affects all other
holders of Preferred Stock. For the avoidance of doubt, there shall
be no duplicate anti-dilution adjustment pursuant to this subsection (e), the
forgoing subsection (d) and the Company’s Charter.
(g) Notice of
Adjustments. If: (i) the Company shall declare any dividend or
distribution upon its stock, whether in stock, cash, property or other
securities (assuming Warrantholder consents to a dividend involving cash,
property or other securities); (ii) the Company shall offer for subscription
prorata to the holders of any class of its Preferred Stock or other convertible
stock any additional shares of stock of any class or other rights; (iii) there
shall be any Merger Event; (iv) there shall be an Initial Public Offering; (v)
the Company shall sell, lease, license or otherwise transfer all or
substantially all of its assets; or (vi) there shall be any voluntary
dissolution, liquidation or winding up of the Company; then, in connection with
each such event, the Company shall send to the Warrantholder: (A) at least
thirty (30) days’ prior written notice of the date on which the books of the
Company shall close or a record shall be taken for such dividend, distribution,
subscription rights (specifying the date on which the holders of Preferred Stock
shall be entitled thereto) or for determining rights to vote in respect of such
Merger Event, dissolution, liquidation or winding up; (B) in the case of any
such Merger Event, sale, lease, license or other transfer of all or
substantially all assets, dissolution, liquidation or winding up, at least
twenty (20) days’ prior written notice of the date when the same shall take
place (and specifying the date on which the holders of Preferred Stock shall be
entitled to exchange their Preferred Stock for securities or other property
deliverable upon such Merger Event, dissolution, liquidation or winding up); and
(C) in the case of an Initial Public Offering, the Company shall give the
Warrantholder at least thirty (30) days’ written notice prior to the anticipated
effective date thereof.
Each such
written notice shall set forth, in reasonable detail, (i) the event requiring
the notice, and (ii) if any adjustment is required to be made, (A) the amount of
such adjustment, (B) the method by which such adjustment was calculated, (C) the
adjusted Exercise Price (if the Exercise Price has been adjusted), and (D) the
number of shares subject to purchase hereunder after giving effect to such
adjustment, and shall be given by first class mail, postage prepaid, or by
reputable overnight courier with all charges prepaid, addressed to the
Warrantholder at the address for Warrantholder set forth in the registry
referred to in Section 7.
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(h) Timely
Notice. Failure to timely provide such notice required by subsection
(f) above shall entitle Warrantholder to retain the benefit of the applicable
notice period notwithstanding anything to the contrary contained in any
insufficient notice received by Warrantholder. For purposes of this
subsection (g), and notwithstanding anything to the contrary in Section 12(g),
the notice period shall begin on the date Warrantholder actually receives a
written notice containing all the information required to be provided in such
subsection (f).
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SECTION
9.
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REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE
COMPANY.
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(a) Reservation of Preferred
Stock. The Preferred Stock issuable upon exercise of the
Warrantholder’s rights has been duly and validly reserved and, when issued in
accordance with the provisions of this Agreement, will be validly issued, fully
paid and non-assessable, and will be free of any taxes, liens, charges or
encumbrances of any nature whatsoever; provided, that the
Preferred Stock issuable pursuant to this Agreement may be subject to
restrictions on transfer under state and/or federal securities
laws. The Company has made available to the Warrantholder true,
correct and complete copies of its Charter and current bylaws. The issuance of
certificates for shares of Preferred Stock upon exercise of this Agreement shall
be made without charge to the Warrantholder for any issuance tax in respect
thereof, or other cost incurred by the Company in connection with such exercise
and the related issuance of shares of Preferred Stock; provided, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer and the issuance and delivery of any certificate in a name other
than that of the Warrantholder.
(b) Due
Authority. The execution and delivery by the Company of this
Agreement and the performance of all obligations of the Company hereunder,
including the issuance to Warrantholder of the right to acquire the shares of
Preferred Stock and the Common Stock into which it may be converted, have been
duly authorized by all necessary corporate action on the part of the
Company. The Loan Agreement and this Agreement: (1) are not
inconsistent with the Company’s Charter or current bylaws; (2) do not contravene
any law or governmental rule, regulation or order applicable to it; and (3) do
not and will not contravene any provision of, or constitute a default under, any
indenture, mortgage, contract or other instrument to which it is a party or by
which it is bound. The Loan Agreement and this Agreement constitute
legal, valid and binding agreements of the Company, enforceable in accordance
with their respective terms.
(c) Consents and
Approvals. No consent or approval of, giving of notice to,
registration with, or taking of any other action in respect of any state,
federal or other governmental authority or agency is required with respect to
the execution, delivery and performance by the Company of its obligations under
this Agreement, except for the filing of notices pursuant to Regulation D under
the Act and any filing required by applicable state securities law, which
filings will be effective by the time required thereby.
(d) Issued
Securities. All issued and outstanding shares of Common Stock,
Preferred Stock or any other securities of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. All
outstanding shares of Common Stock, Preferred Stock and any other securities
were issued in full compliance with all federal and state securities
laws. In addition, as of the date immediately preceding the date of
this Agreement:
(i) The
authorized capital of the Company is as set forth on Schedule A attached
hereto.
(ii) Except
for the options and warrants described in Schedule A, there are no other
options, warrants, conversion privileges or other rights presently outstanding
to purchase or otherwise acquire any authorized but unissued shares of the
Company’s capital stock or other securities of the Company.
(e) Insurance. The
Company has in full force and effect insurance policies, with extended coverage,
insuring the Company and its property and business against such losses and
risks, and in such amounts, as are described in the Loan Agreement.
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(f) Other Commitments to
Register Securities. Except as set forth in this Agreement,
and except as set forth in the Amended and Restated Investor Rights Agreement
between the Company and certain holders of its equity securities dated as of
[September 20, 2005] (a copy of which has previously been provided to the
Warrantholder), the Company is not, pursuant to the terms of any other agreement
currently in existence, under any obligation to register under the Act any of
its presently outstanding securities or any of its securities which may
hereafter be issued.
(g) Exempt
Transaction. Subject to the accuracy of the Warrantholder’s
representations in Section 10, the issuance of the Preferred Stock upon exercise
of this Agreement, and the issuance of the Common Stock upon conversion of the
Preferred Stock, will each constitute a transaction exempt from (i) the
registration requirements of Section 5 of the Act, in reliance upon Section 4(2)
thereof, and (ii) the qualification requirements of the applicable state
securities laws.
(h) Compliance with Rule
144. If the Warrantholder proposes to sell Preferred Stock
issuable upon the exercise of this Agreement, or the Common Stock into which it
is convertible, in compliance with Rule 144 promulgated by the SEC,
then, upon Warrantholder’s written request to the Company, the Company shall
furnish to the Warrantholder, within ten days after receipt of such request, a
written statement confirming the Company’s compliance with the filing
requirements of the SEC as set forth in such Rule, as such Rule may be amended
from time to time.
(i) Information
Rights. During the term of this Warrant, the initial
Warrantholder (and any affiliates of the initial Warrantholder) shall be
entitled to the information rights contain in Section 7.1 of the Loan Agreement,
and Section 7.1 of the Loan Agreement is hereby incorporated into this Agreement
by this reference as though fully set forth herein, provided, however, that the
Company shall not be required to deliver a Compliance Certificate once all
Indebtedness (as defined in the Loan Agreement) owed by the Company to
Warrantholder as been repaid.
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SECTION
10.
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REPRESENTATIONS
AND COVENANTS OF THE WARRANTHOLDER.
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This
Agreement has been entered into by the Company in reliance upon the following
representations and covenants of the Warrantholder:
(a) Investment
Purpose. The right to acquire Preferred Stock or the Preferred Stock
issuable upon exercise of the Warrantholder’s rights contained herein will be
acquired for investment and not with a view to the sale or distribution of any
part thereof, and the Warrantholder has no present intention of selling or
engaging in any public distribution of the same except pursuant to a
registration or exemption.
(b) Private
Issue. The Warrantholder understands (i) that the Preferred Stock
issuable upon exercise of this Agreement is not registered under the Act or
qualified under applicable state securities laws on the ground that the issuance
contemplated by this Agreement will be exempt from the registration and
qualifications requirements thereof, and (ii) that the Company’s reliance on
such exemption is predicated on the representations set forth in this Section
10.
(c) Financial
Risk. The Warrantholder has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of its investment, and has the ability to bear the economic risks of its
investment.
(d) Risk of
No Registration. The Warrantholder understands that if the Company
does not register with the SEC pursuant to Section 12 of the Securities Exchange
Act of 1934 (the “1934
Act”), or file reports pursuant to Section 15(d) of the 1934 Act, or if a
registration statement covering the securities under the Act is not in effect
when it desires to sell (i) the rights to purchase Preferred Stock pursuant to
this Agreement or (ii) the Preferred Stock issuable upon exercise of the right
to purchase, it may be required to hold such securities for an indefinite
period. The Warrantholder also understands that any sale of (A) its
rights hereunder to purchase Preferred Stock or (B) Preferred Stock issued or
issuable hereunder which might be made by it in reliance upon Rule 144 under the
Act may be made only in accordance with the terms and conditions of that
Rule.
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(e) Accredited
Investor. Warrantholder is an “accredited investor” within the
meaning of the Securities and Exchange Rule 501 of Regulation D, as presently in
effect.
(f) Disposition
of Warrantholder’s Rights. In no event will the Warrantholder make a
disposition of any of its rights to acquire Preferred Stock or Preferred Stock
issuable upon exercise of such rights unless and until (i) it shall have
notified the Company of the proposed disposition, and (ii) if requested by the
Company, it shall have furnished the Company with an opinion of counsel (which
counsel may either be inside or outside counsel to the Warrantholder) reasonably
satisfactory to the Company and its counsel to the effect that (A) appropriate
action necessary for compliance with the Act has been taken, or (B) an exemption
from the registration requirements of the Act is
available. Notwithstanding the foregoing, the restrictions imposed
upon the transferability of any of its rights to acquire Preferred Stock or
Preferred Stock issuable on the exercise of such rights do not apply to
transfers from the beneficial owner of any of the aforementioned securities to
its nominee or from such nominee to its beneficial owner, or to any transfers to
an Affiliate of Warrantholder, and shall terminate as to any particular share of
Preferred Stock when (1) such security shall have been effectively registered
under the Act and sold by the holder thereof in accordance with such
registration or (2) such security shall have been sold without registration in
compliance with Rule 144 under the Act, or (3) a letter shall have been issued
to the Warrantholder at its request by the staff of the SEC or a ruling shall
have been issued to the Warrantholder at its request by the SEC stating that no
action shall be recommended by such staff or taken by the SEC, as the case may
be, if such security is transferred without registration under the Act in
accordance with the conditions set forth in such letter or ruling and such
letter or ruling specifies that no subsequent restrictions on transfer are
required. Whenever the restrictions imposed hereunder shall
terminate, as hereinabove provided, the Warrantholder or holder of a share of
Preferred Stock then outstanding as to which such restrictions have terminated
shall be entitled to receive from the Company, without expense to such holder,
one or more new certificates for this Warrant or for such shares of Preferred
Stock not bearing any restrictive legend.
(g) Diligence. Warrantholder
has had an opportunity to discuss the Company’s business, management and
financial affairs with its management and an opportunity to review the Company’s
facilities.
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SECTION
11.
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TRANSFERS.
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Subject
to compliance with applicable federal and state securities laws, this Agreement
and all rights hereunder are transferable, in whole or in part, without charge
to the holder hereof (except for transfer taxes) upon surrender of this
Agreement properly endorsed and in accordance with the provisions of this
Agreement. Each taker and holder of this Agreement, by taking or
holding the same, consents and agrees that this Agreement, when endorsed in
blank, shall be deemed negotiable, and that the holder hereof, when this
Agreement shall have been so endorsed and its transfer recorded on the Company’s
books, shall be treated by the Company and all other persons dealing with this
Agreement as the absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented by this
Agreement. Subject to the Warrantholder’s compliance with the
provisions of Section 10(f) of this Agreement and all applicable securities
laws, the transfer of this Agreement shall be recorded on the books of the
Company upon receipt by the Company of a notice of transfer in the form attached
hereto as Exhibit III (the “Transfer Notice”), at
its principal offices and the payment to the Company of all transfer taxes and
other governmental charges imposed on such transfer. Until the
Company receives such Transfer Notice, the Company may treat the
registered owner hereof as the owner for all purposes.
|
SECTION
12.
|
MISCELLANEOUS.
|
(a) Effective
Date. The provisions of this Agreement shall be construed and shall
be given effect in all respects as if it had been executed and delivered by the
Company on the date hereof. This Agreement shall be binding upon any
successors or assigns of the Company.
(b) Remedies. In
the event of any default hereunder, the non-defaulting party may proceed to
protect and enforce its rights either by suit in equity and/or by action at law,
including but not limited to an action for damages as a result of any such
default, and/or an action for specific performance for any default where
Warrantholder will not have an adequate remedy at law and where damages will not
be readily ascertainable.
8
(c) No
Impairment of Rights. The Company will not, by amendment of its
Charter or through any other means, avoid or seek to avoid the observance or
performance of any of the terms of this Agreement, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate in order to protect the rights of the
Warrantholder against impairment.
(d) Additional
Documents. The Company, upon execution of this Agreement, shall
provide the Warrantholder with certified resolutions with respect to the
representations, warranties and covenants set forth in Sections 9(a) through
9(c). The Company shall also supply such other documents as the
Warrantholder may from time to time reasonably request.
(e) Attorney’s
Fees. In any litigation, arbitration or court proceeding between the
Company and the Warrantholder relating hereto, the prevailing party shall be
entitled to reasonable attorneys’ fees and reasonable expenses and all costs of
proceedings incurred in enforcing this Agreement. For the purposes of
this Section 12(e), attorneys’ fees shall include without limitation fees
incurred in connection with the following: (i) contempt proceedings; (ii)
discovery; and post-judgment motions and proceedings of any kind, including
without limitation any activity taken to collect or enforce any
judgment.
(f) Severability. In
the event any one or more of the provisions of this Agreement shall for any
reason be held invalid, illegal or unenforceable, the remaining provisions of
this Agreement shall be unimpaired, and the invalid, illegal or unenforceable
provision shall be replaced by a mutually acceptable valid, legal and
enforceable provision, which comes closest to the intention of the parties
underlying the invalid, illegal or unenforceable provision.
(g) Notices. Except
as otherwise provided herein, any notice, demand, request, consent, approval,
declaration, service of process or other communication that is required,
contemplated, or permitted under this Agreement or with respect to the subject
matter hereof shall be in writing, and shall be deemed to have been validly
served, given, delivered, and received upon the earlier of: (i) the first
business day after transmission by facsimile or hand delivery or deposit with an
overnight express service or overnight mail delivery service; or (ii) the third
calendar day after deposit in the United States mails, with proper first class
postage prepaid (provided, that any
Advance Request shall not be deemed received until Lender’s actual receipt
thereof), and shall be addressed to the party to be notified as
follows:
If to
Warrantholder:
HERCULES
TECHNOLOGY GROWTH CAPITAL, INC.
Legal
Department
Attention: Chief
Legal Officer and Xxxxxx Xxxxxxxxx
000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxx, XX 00000
Facsimile: 000-000-0000
Telephone: 000-000-0000
If to the
Company:
NEXX
SYSTEMS, INC.
0
Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxx,
XX 00000
Attention: Xxxxxxx
X. Xxxxxx, CFO
Facsimile:
000-000-0000
Telephone:
000-000-0000
or to
such other address as each party may designate for itself by like
notice.
(h) Entire
Agreement; Amendments. This Agreement constitute the entire agreement
and understanding of the parties hereto in respect of the subject matter hereof,
and supersede and replace in their entirety any prior proposals, term sheets,
letters, negotiations or other documents or agreements, whether written or oral,
with respect to the subject matter hereof (including Lender’s proposal letter
dated November 20, 2006). None of the terms of this Agreement may be
amended except by an instrument executed by each of the parties
hereto.
9
(i) Headings. The
various headings in this Agreement are inserted for convenience only and shall
not affect the meaning or interpretation of this Agreement or any provisions
hereof.
(j) Advice of
Counsel. Each of the parties represents to each other party hereto
that it has discussed (or had an opportunity to discuss) with its counsel this
Agreement and, specifically, the provisions of Sections 12(n), 12(o), 12(p).
12(q) and 12(r).
(k) No Strict
Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity
or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
(l) No
Waiver. No omission or delay by Warrantholder at any time to enforce
any right or remedy reserved to it, or to require performance of any of the
terms, covenants or provisions hereof by the Company at any time designated,
shall be a waiver of any such right or remedy to which Warrantholder is
entitled, nor shall it in any way affect the right of Warrantholder to enforce
such provisions thereafter.
(m) Survival. All
agreements, representations and warranties contained in this Agreement or in any
document delivered pursuant hereto shall be for the benefit of Warrantholder and
shall survive the execution and delivery of this Agreement and the expiration or
other termination of this Agreement.
(n) Governing
Law. This Agreement have been negotiated and delivered to
Warrantholder in the State of California, and shall have been accepted by
Warrantholder in the State of California. Delivery of Preferred Stock
to Warrantholder by the Company under this Agreement is due in the State of
California. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, excluding
conflict of laws principles that would cause the application of laws of any
other jurisdiction.
(o) Consent
to Jurisdiction and Venue. All judicial proceedings arising in or
under or related to this Agreement may be brought in any state or federal court
of competent jurisdiction located in the State of California. By
execution and delivery of this Agreement, each party hereto generally and
unconditionally: (a) consents to personal jurisdiction in San Mateo County,
State of California; (b) waives any objection as to jurisdiction or venue in San
Mateo County, State of California; (c) agrees not to assert any defense based on
lack of jurisdiction or venue in the aforesaid courts; and (d) irrevocably
agrees to be bound by any judgment rendered thereby in connection with this
Agreement. Service of process on any party hereto in any action
arising out of or relating to this Agreement shall be effective if given in
accordance with the requirements for notice set forth in Section 12(g), and
shall be deemed effective and received as set forth in Section
12(g). Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of either party to bring
proceedings in the courts of any other jurisdiction.
(p) Mutual
Waiver of Jury Trial. Because disputes arising in connection with
complex financial transactions are most quickly and economically resolved by an
experienced and expert person and the parties wish applicable state and federal
laws to apply (rather than arbitration rules), the parties desire that their
disputes be resolved by a judge applying such applicable laws. EACH
OF THE COMPANY AND WARRANTHOLDER SPECIFICALLY WAIVES ANY RIGHT IT MAY HAVE TO
TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS-CLAIM, COUNTERCLAIM, THIRD
PARTY CLAIM OR ANY OTHER CLAIM (COLLECTIVELY, “CLAIMS”) ASSERTED BY THE COMPANY
AGAINST WARRANTHOLDER OR ITS ASSIGNEE OR BY WARRANTHOLDER OR ITS ASSIGNEE
AGAINST THE COMPANY. This waiver extends to all such Claims,
including Claims that involve Persons other than Borrower and Lender; Claims
that arise out of or are in any way connected to the relationship between the
Company and Warrantholder; and any Claims for damages, breach of contract,
specific performance, or any equitable or legal relief of any kind, arising out
of this Agreement.
10
(q) Judicial
Reference. If the Mutual Waiver of Jury Trial set forth in Section
12(p) is ineffective or unenforceable, the parties agree that all Claims shall
be resolved by reference to a private judge sitting without a jury, pursuant to
Code of Civil Procedures Section 638, before a mutually acceptable referee or,
if the parties cannot agree, a referee selected by the Presiding Judge of the
California Superior Court for Santa Xxxxx County, California. Such
proceeding shall be conducted in Santa Xxxxx County, California, with California
rules of evidence and discovery applicable to such proceeding.
(r) Prejudgment
Relief. In the event Claims are to be resolved by judicial reference,
either party may seek from a court of competent jurisdiction identified in
Section 12(r), any prejudgment order, writ or other relief and have such
prejudgment order, writ or other relief enforced to the fullest extent permitted
by law notwithstanding that all Claims are otherwise subject to resolution by
judicial reference.
(s) Counterparts. This
Agreement and any amendments, waivers, consents or supplements hereto may be
executed in any number of counterparts, and by different parties hereto in
separate counterparts, each of which when so delivered shall be deemed an
original, but all of which counterparts shall constitute but one and the same
instrument.
(t) Specific
Performance. The parties hereto hereby declare that it is impossible
to measure in money the damages which will accrue to Warrantholder by reason of
the Company’s failure to perform any of the obligations under this Agreement and
agree that the terms of this Agreement shall be specifically enforceable by
Warrrantholder. If Warrantholder institutes any action or proceeding
to specifically enforce the provisions hereof, any person against whom such
action or proceeding is brought hereby waives the claim or defense therein that
Warrantholder has an adequate remedy at law, and such person shall not offer in
any such action or proceeding the claim or defense that such remedy at law
exists.
[Remainder
of Page Intentionally Left Blank]
11
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
its officers thereunto duly authorized as of the Effective Date.
COMPANY: NEXX
SYSTEMS, INC.
By: /s/ Xxxxxxx X.
Xxxxxx
Title: CFO
Notice
Address: Attn: Xxxxxxx
X. Xxxxxx, CFO
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
WARRANTHOLDER: HERCULES
TECHNOLOGY GROWTH CAPITAL, INC.
By: /s/ X. Xxxxxxxx
Martitsh
Title: Associate
General
Counsel
Notice
Address: Hercules
Technology Growth Capital, Inc..
Attn:
Xxxxxx Xxxxxxxxx and Chief Legal Officer
000 Xxxxxxxx Xxxxxx, Xxxxx
000
Xxxx Xxxx, XX 00000
Facsimile: 000-000-0000
Telephone: 000-000-0000
12
EXHIBIT
I
NOTICE OF EXERCISE
To: [____________________________]
|
(1)
|
The
undersigned Warrantholder hereby elects to purchase [_______] shares of
the Series [__] Preferred Stock of [_________________], pursuant to the
terms of the Warrant Agreement dated the ____ day of July, 2010 (the
“Agreement”) between NEXX SYSTEMS, INC. and the Warrantholder, and [CASH
PAYMENT: tenders herewith payment of the Purchase Price in full, together
with all applicable transfer taxes, if any.] [NET ISSUANCE: elects
pursuant to Section 3(a) of the Agreement to effect a Net
Issuance.]
|
|
(2)
|
Please
issue a certificate or certificates representing said shares of Series
[__] Preferred Stock in the name of the undersigned or in such other name
as is specified below.
|
__________________________________________
(Name)
(Name)
__________________________________________
(Address)
(Address)
WARRANTHOLDER: HERCULES
TECHNOLOGY GROWTH CAPITAL, INC.
By:
____________________________________
Title: ____________________________________
Date: ____________________________________
EXHIBIT
II
ACKNOWLEDGMENT
OF EXERCISE
The
undersigned [____________________________________], hereby acknowledge receipt
of the “Notice of Exercise” from Hercules Technology Growth Capital, Inc., to
purchase [____] shares of the Series [__] Preferred Stock of
[_________________], pursuant to the terms of the Agreement, and further
acknowledges that [______] shares remain subject to purchase under the terms of
the Agreement.
COMPANY: NEXX
SYSTEMS, INC.
By:
____________________________________
Title: ____________________________________
Date: ____________________________________
EXHIBIT
III
TRANSFER
NOTICE
(To
transfer or assign the foregoing Agreement execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE
RECEIVED, the foregoing Agreement and all rights evidenced thereby are hereby
transferred and assigned to
___________________________________________________________________________________
(Please
Print)
whose
address
is _____________________________________________________________________
___________________________________________________________________________________
Dated: ________________________________________________________
Holder’s
Signature: _______________________________________________
Holder’s
Address: ________________________________________________
______________________________________________________________
Signature
Guaranteed: ________________________________________________________________
NOTE: The
signature to this Transfer Notice must correspond with the name as it appears on
the face of the Agreement, without alteration or enlargement or any change
whatever. Officers of corporations and those acting in a fiduciary or other
representative capacity should file proper evidence of authority to assign the
foregoing Agreement.
