Contract
Exhibit 4.16
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”),
OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS SUCH SALE OR
TRANSFER IS IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR
SOME OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS IS
AVAILABLE WITH RESPECT THERETO.
| Warrant No.___________ | 17,849 Shares of Series C Preferred Stock |
Kior, Inc.
Effective as of June 6, 2011
Void after June 6, 2019
1. Issuance. This Preferred Stock Purchase Warrant (the “Warrant”) is issued to
Lighthouse Capital Partners VI, L.P. by Kior, Inc.,
a Delaware corporation (hereinafter with its successors called the “Company”).
2. Purchase Price; Number of Shares. The registered holder of this Warrant (the “Holder”),
commencing on the date hereof, is entitled upon surrender of this Warrant with the subscription
form annexed hereto duly executed, at the principal office of the Company, to purchase from the
Company, at a price per share of $9.804 (the “Purchase Price”), 17,849 fully paid and nonassessable
shares of the Company’s Series C Preferred Stock, $0.000 par value (the “Preferred Stock”). Should
this Warrant become exercisable for Class A common stock of the Company, $0.0001 par value (the
“Class A Common Stock”) under Section 23 hereof, such Purchase Price and the corresponding number
of shares of Class A Common Stock purchasable hereunder shall be adjusted as set forth therein.
Until such time as this Warrant is exercised in full or expires, the Purchase Price and the
securities issuable upon exercise of this Warrant are subject to adjustment as hereinafter
provided. The person or persons in whose name or names any certificate representing shares of
Preferred Stock is issued hereunder shall be deemed to have become the holder of record of the
shares represented thereby as at the close of business on the date this Warrant is exercised with
respect to such shares, whether or not the transfer books of the Company shall be closed.
3. Payment of Purchase Price. The Purchase Price may be paid (i) in cash or by check, (ii) by
the surrender by the Holder to the Company of any promissory notes or other obligations issued by
the Company, with all such notes and obligations so surrendered being credited against the Purchase
Price in an amount equal to the principal amount thereof plus accrued interest to the date of
surrender, or (iii) by any combination of the foregoing.
4. Net Issue Election. The Holder may elect to receive, without the payment by the Holder of
any additional consideration, shares of Preferred Stock equal to the value of this Warrant or any
portion hereof by the surrender of this Warrant or such portion to the Company, with the net issue
election notice annexed hereto duly executed, at the principal office of the Company. Thereupon,
the Company shall issue to the Holder such number of fully paid and nonassessable shares of
Preferred Stock as is computed using the following formula:
1.
X=Y(A-B)
A
A
where:
|
X = | the number of shares of Preferred Stock to be issued to the Holder pursuant to this Section 4. | ||
| Y = | the number of shares of Preferred Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 4. | |||
| A = | the Fair Market Value (defined below) of one share of Preferred Stock, as determined at the time the net issue election is made pursuant to this Section 4. | |||
| B = | the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4. |
“Fair Market Value” of a share of Preferred Stock (or fully paid and nonassessable shares of
the Company’s Class A Common Stock if the Preferred Stock has been automatically converted into
Class A Common Stock) as of the date that the net issue election is made (the “Determination Date”)
shall mean:
(i) If the net issue election is made in connection with and contingent upon the closing of
the sale of the Company’s Class A Common Stock to the public in a public offering pursuant to a
Registration Statement under the 1933 Act (a “Public Offering”), and if the Company’s Registration
Statement relating to such Public Offering (“Registration Statement”) has been declared effective
by the Securities and Exchange Commission, then the initial “Price to Public” specified in the
final prospectus with respect to such offering multiplied by the number of shares of Class A Common
Stock into which each share of Preferred Stock is then convertible subject to adjustment, if any,
as set forth in Section 23.
(ii) If the net issue election is not made in connection with and contingent upon a Public
Offering, then as follows:
(a) If traded on a securities exchange or NASDAQ market or system, the fair market value of
the Class A Common Stock shall be deemed to be the average of the closing or last reported sale
prices of the Class A Common Stock on such exchange or market over the five day period ending five
trading days prior to the Determination Date, and the fair market value of the Preferred Stock
shall be deemed to be such fair market value of the Class A Common Stock multiplied by the number
of shares of Class A Common Stock into which each share of Preferred Stock is then convertible
(subject to reference to the “Series C Conversion Price” adjustment of the Preferred Stock under
Section 4.1.2 of the Articles);
(b) If otherwise traded in an over-the-counter market, the fair market value of the Class A
Common Stock shall be deemed to be the average of the closing ask prices of the Class A Common
Stock over the five day period ending five trading days prior to the Determination Date, and the
fair market value of the Preferred Stock shall be deemed to be such fair market value of the Class
A Common Stock multiplied by the number of shares of Class A Common Stock into which each share of
Preferred Stock is then convertible (subject to reference to the “Series C Conversion Price”
adjustment of the Preferred Stock under Section 4.1.2 of the Articles); and
(c) If there is no public market for the Class A Common Stock, then fair market value shall be
determined in good faith by the Company’s Board of Directors.
5. Partial Exercise. This Warrant may be exercised in part, and the Holder shall be entitled
to receive a new warrant, which shall be dated as of the date of this Warrant, covering the number
of shares in respect of which this Warrant shall not have been exercised.
2.
6. Fractional Shares. In no event shall any fractional share of Preferred Stock be issued
upon any exercise of this Warrant. If, upon exercise of this Warrant in its entirety, the Holder
would, except as provided in this Section 6, be entitled to receive a fractional share of
Preferred Stock, then the Company shall issue the next higher number of full shares of Preferred
Stock, issuing a full share with respect to such fractional share.
7. Expiration Date; Automatic Exercise. This Warrant shall expire at the earliest to occur of
(the “Expiration Date”) (i) at the close of business on June 6, 2019; (ii) two years after the
closing of the initial Public Offering; of the Company on the NASDAQ or other stock exchange in the
United States, and shall be void thereafter.
Notwithstanding the term of this Warrant fixed pursuant to this Section 7, and provided
Xxxxxx has received advance written notice of at least twenty (20) days and has not earlier
exercised this Warrant, and provided this Warrant has not been assumed by the successor entity (or
parent thereof), upon the consummation of a Merger (as defined below), this Warrant shall
automatically be exercised pursuant to Section 4 hereof, without any action by Holder. “Merger”
means: (i) a sale of all or substantially all of the Company’s assets to an Unaffiliated Entity (as
defined below), or (ii) the merger, consolidation or acquisition of the Company with, into or by an
Unaffiliated Entity (other than a merger or consolidation for the principle purpose of changing the
domicile of the Company or a bona fide round of preferred stock equity financing), that results in
the transfer of fifty percent (50%) or more of the outstanding voting power of the Company.
“Unaffiliated Entity” means any entity that is owned or controlled by parties who own less than
twenty percent (20%) of the combined voting power of the voting securities of the Company
immediately prior to such merger, consolidation or acquisition. Notwithstanding the foregoing, in
the event that any outstanding warrants to purchase equity securities of the Company are assumed by
the successor entity of a Merger (or parent thereof), this Warrant shall also be similarly assumed.
The Company agrees to promptly give the Holder written notice of any proposed Merger and written
notice of termination of any proposed Merger. Notwithstanding anything to the contrary in this
Warrant, the Holder may rescind any exercise of its purchase rights after a notice of termination
of the proposed Merger if the exercise of this Warrant occurred after the Company notified the
Holder that the Merger was proposed or if the exercise was otherwise precipitated by such proposed
Merger, provided, however that such rescission right must be exercised within thirty (30) days of
receipt of such written notice of termination of the proposed Merger. In the event of such
rescission, this Warrant will continue to be exercisable on the same terms and conditions.
8. Reserved Shares; Valid Issuance. The Company covenants that it will at all times from and
after the date hereof reserve and keep available such number of its authorized shares of Preferred
Stock and Class A Common Stock free from all preemptive or similar rights therein, as will be
sufficient to permit, respectively, the exercise of this Warrant in full and the conversion into
shares of Class A Common Stock of all shares of Preferred Stock receivable upon such exercise. The
Company further covenants that such shares as may be issued pursuant to such exercise and/or
conversion will, upon issuance, be duly and validly issued, fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issuance thereof.
9. Stock Splits and Dividends. If after the date hereof the Company shall subdivide the
Preferred Stock, by split-up or otherwise, or combine the Preferred Stock, or issue additional
shares of Preferred Stock in payment of a stock dividend on the Preferred Stock, or make any other
distribution with respect to the Preferred Stock, the number of shares of Preferred Stock issuable
on the exercise of this Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend or other distribution, or proportionately decreased in the case of a
combination, and the Purchase Price shall forthwith be proportionately decreased in the case of a
subdivision or stock dividend, or proportionately increased in the case of a combination.
10. Adjustments for Diluting Issuances. The other antidilution rights applicable to the
Preferred Stock and the Class A Common Stock of the Company are set forth in the Amended and
Restated Certificate of Incorporation, as amended from time to time (the “Articles”), a true and
complete copy in its current form which is attached hereto as Exhibit A. Such rights shall not be
restated, amended or modified in any manner which affects the Holder differently than the holders
of Preferred Stock without such Holder’s prior written consent. The Company shall promptly provide
the Holder hereof with any restatement, amendment or modification to the Articles promptly after
the same has been made.
3.
11. Mergers and Reclassifications. If after the date hereof the Company shall enter into any
Reorganization (as hereinafter defined), then, as a condition of such Reorganization, lawful
provisions shall be made, and duly executed documents evidencing the same from the Company or its
successor shall be delivered to the Holder, so that the Holder shall thereafter have the right to
purchase, at a total price not to exceed that payable upon the exercise of this Warrant in full,
the kind and amount of shares of stock and other securities and property receivable upon such
Reorganization by a holder of the number of shares of Preferred Stock which might have been
purchased by the Holder immediately prior to such Reorganization, and in any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder to the end that the
provisions hereof (including without limitation, provisions for the adjustment of the Purchase
Price and the number of shares issuable hereunder and the provisions relating to the net issue
election) shall thereafter be applicable in relation to any shares of stock or other securities and
property thereafter deliverable upon exercise hereof. For the purposes of this Section 11, the
term “Reorganization” shall include without limitation any reclassification, capital reorganization
or change of the Preferred Stock (other than as a result of a subdivision, combination or stock
dividend provided for in Section 9 hereof), or any consolidation of the Company with, or merger of
the Company into, another corporation or other business organization (other than a merger in which
the Company is the surviving corporation and which does not result in any reclassification or
change of the outstanding Preferred Stock), or any sale or conveyance to another corporation or
other business organization of all or substantially all of the assets of the Company.
12. Certificate of Adjustment. Whenever the Purchase Price is adjusted, as herein provided,
the Company shall promptly deliver to the Holder a certificate of the Company’s chief financial
officer setting forth the Purchase Price after such adjustment and setting forth a brief statement
of the facts requiring such adjustment.
13. Notices of Record Date, Etc. In the event of:
(a) any taking by the Company of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any dividend or other
distribution, or any right to subscribe for, purchase, sell or otherwise acquire or dispose of any
shares of stock of any class or any other securities or property, or to receive any other right;
(b) any reclassification of the capital stock of the Company, capital reorganization of the
Company, consolidation or merger involving the Company, or sale or conveyance of all or
substantially all of its assets; or
(c) any voluntary or involuntary dissolution, liquidation or winding-up of the Company;
then in each such event the Company will provide or cause to be provided to the Holder a written
notice thereof. Such notice shall be provided at least twenty (20) business days prior to the date
specified in such notice on which any such action is to be taken.
14. Representations, Warranties and Covenants. This Warrant is issued and delivered by the
Company and accepted by each Holder on the basis of the following representations, warranties and
covenants made by the Company:
(a) The Company has all necessary authority to issue, execute and deliver this Warrant and to
perform its obligations hereunder. This Warrant has been duly authorized issued, executed and
delivered by the Company and is the valid and binding obligation of the Company, enforceable in
accordance with its terms.
(b) The shares of Preferred Stock issuable upon the exercise of this Warrant or any shares of
Class A Common Stock issued upon conversion of such shares of Preferred Stock have been duly
authorized and reserved for issuance by the Company and, when issued in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable.
(c) The issuance, execution and delivery of this Warrant do not, and the issuance of the
shares of Preferred Stock upon the exercise of this Warrant in accordance with the terms hereof
will not, (i) violate
4.
or contravene the Company’s Articles or by-laws, or any law, statute, regulation, rule,
judgment or order applicable to the Company, (ii) violate, contravene or result in a breach or
default under any contract, agreement or instrument to which the Company is a party or by which the
Company or any of its assets are bound or (iii) require the consent or approval of or the filing of
any notice or registration with any person or entity.
(d) As long as this Warrant is, or any shares of Preferred Stock issued upon exercise of this
Warrant or any shares of Class A Common Stock issued upon conversion of such shares of Preferred
Stock are, issued and outstanding, the Company will provide to the Holder the financial and other
information described in that certain Loan and Security Agreement No. 1452 between the Company and
Lenders dated as January 27, 2010, as amended.
(e) So long as this Warrant has not terminated, Holder shall be entitled to receive such
financial and other information as the Holder would be entitled to receive under the stock purchase
agreement applicable to the Preferred Stock if Holder were a holder of that number of shares
issuable upon full exercise of this Warrant.
(f) As of the date hereof, the authorized capital stock of the Company consists of (i)
35,400,000 shares of Common Stock, $0.001 par value, of which 8,633,560 shares are issued and
outstanding and 205,656 shares are reserved for issuance upon the exercise of warrants with respect
to Common Stock and the conversion of the Preferred Stock into Common Stock if warrants are
exercised with respect to Preferred Stock, (ii) 63,000,000 shares of Class A Common Stock, $0.0001
par value, of which 52,000 shares are issued and outstanding and 259,008 shares are reserved for
issuance upon the exercise of warrants with respect to Class A Common Stock and the conversion of
the Preferred Stock into Class A Common Stock if warrants are exercised with respect to Preferred
Stock, (iii) 12,000,000 shares of Series A Preferred Stock, of which 12,000,000 shares are issued
and outstanding, (iv) 10,500,000 shares of Series A-1 Preferred Stock, of which 10,285,788 are
issued and outstanding and 205,656 shares are reserved for issuance upon the exercise of warrants
with respect to Series A-1 Preferred Stock, (v) 12,500,000 shares of Series B Preferred Stock, of
which 12,239,901 are issued and outstanding and 154,699 shares are reserved for issuance upon the
exercise of warrants with respect to Series B Preferred Stock, and (vi) 6,500,000 shares of Series
C Preferred Stock, of which 5,609,954 are issued and outstanding and 30,597 are reserved for
issuance upon the exercise of warrants with respect to Series C Preferred Stock. Attached hereto
as Exhibit B is a capitalization table summarizing the capitalization of the Company. Once per
calendar quarter, the Company will provide Holder with a current capitalization table indicating
changes, if any, to the number of outstanding shares of Common Stock, Class A Common Stock and all
series of preferred stock. In addition, the Company agrees to provide in a timely manner any
information reasonably requested by the Holder to enable the Holder and its affiliates to comply
with their accounting reporting requirements.
15. Intentionally Omitted.
16. Amendment. The terms of this Warrant may be amended, modified or waived only with the
written consent of the Holder.
17. Representations and Covenants of the Holder. This Warrant has been entered into by the
Company in reliance upon the following representations and covenants of the Holder, which by its
execution hereof the Holder hereby confirms:
(a) Investment Purpose. The right to acquire Preferred Stock or the Preferred Stock issuable
upon exercise of the Holder’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 Holder has no present intention of
selling or engaging in any public distribution of the same except pursuant to a registration or
exemption.
(b) Accredited Investor. Holder is an “accredited investor” within the meaning of the
Securities and Exchange Rule 501 of Regulation D, as presently in effect.
5.
(c) Private Issue. The Holder understands (i) that the Preferred Stock issuable upon exercise
of the Holder’s rights contained herein is not registered under the 1933 Act or qualified under
applicable state securities laws on the ground that the issuance contemplated by this Warrant 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
17.
(d) Financial Risk. The Holder 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.
18. Notices, Transfers, Etc.
(a) Any notice or written communication required or permitted to be given to the Holder may be
given by certified mail or delivered to the Holder at the address most recently provided by the
Holder to the Company.
(b) Subject to compliance with applicable federal and state securities laws, this Warrant may
be transferred by the Holder with respect to any or all of the shares purchasable hereunder. Upon
surrender of this Warrant to the Company, together with the assignment notice annexed hereto duly
executed, for transfer of this Warrant as an entirety by the Holder, the Company shall issue a new
warrant of the same denomination to the assignee. Upon surrender of this Warrant to the Company,
together with the assignment hereof properly endorsed, by the Holder for transfer with respect to a
portion of the shares of Preferred Stock purchasable hereunder, the Company shall issue a new
warrant to the assignee, in such denomination as shall be requested by the Holder hereof, and shall
issue to such Holder a new warrant covering the number of shares in respect of which this Warrant
shall not have been transferred.
(c) In case this Warrant shall be mutilated, lost, stolen or destroyed, the Company shall
issue a new warrant of like tenor and denomination and deliver the same (i) in exchange and
substitution for and upon surrender and cancellation of any mutilated Warrant, or (ii) in lieu of
any Warrant lost, stolen or destroyed, upon receipt of an affidavit of the Holder or other evidence
reasonably satisfactory to the Company of the loss, theft or destruction of such Warrant
19. No Impairment. The Company will not, by amendment of its Articles or through any
reclassification, capital reorganization, consolidation, merger, sale or conveyance of assets,
dissolution, liquidation, issue or sale of securities or any other voluntary action, avoid or seek
to avoid the observance of performance of any of the terms of this Warrant, but will at all times
in good faith assist in the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the Holder.
20. Governing Law. The provisions and terms of this Warrant shall be governed by and
construed in accordance with the internal laws of the State of California without giving effect to
its principles regarding conflicts of laws.
21. Successors and Assigns. This Warrant shall be binding upon the Company’s successors and
assigns and shall inure to the benefit of the Holder’s successors, legal representatives and
permitted assigns.
22. Business Days. If the last or appointed day for the taking of any action required or the
expiration of any rights granted herein shall be a Saturday or Sunday or a legal holiday in
California, then such action may be taken or right may be exercised on the next succeeding day
which is not a Saturday or Sunday or such a legal holiday.
23. Qualifying Public Offering; Purchase Price Adjustments prior to October 31, 2011. If the
Company shall effect a firm commitment underwritten public offering of shares of Class A Common
Stock which results in the conversion of the Preferred Stock into Class A Common Stock pursuant to
the Company’s Articles in effect immediately prior to such offering, then, effective upon such
conversion, this Warrant shall change from the right to
6.
purchase shares of Preferred Stock to the right to purchase shares of Class A Common Stock, and the
Holder shall thereupon have the right to purchase, at a total price equal to that payable upon the
exercise of this Warrant in full, as such price may be subject to adjustment as set forth below,
the number of shares of Class A Common Stock which would have been receivable by the Holder upon
the exercise of this Warrant for shares of Preferred Stock immediately prior to such conversion of
such shares of Preferred Stock into shares of Class A Common Stock, and in such event appropriate
provisions shall be made with respect to the rights and interest of the Holder to the end that the
provisions hereof (including, without limitation, the provisions for the adjustment of the Purchase
Price and of the number of shares purchasable upon exercise of this Warrant and the provisions
relating to the net issue election) shall thereafter be applicable to any shares of Class A Common
Stock deliverable upon the exercise hereof. In addition to, and without limitation of the
foregoing, in the event that the Company shall consummate a “Qualifying IPO” as defined in Section
4.1.2 of the Articles as currently in effect and filed with the Secretary of the State of Delaware
on the date hereof, and provided that such Qualifying IPO is consummated on or prior to October 31,
2011, then the Purchase Price shall be adjusted to equal the Series C Conversion Price then
applicable to the Series C Preferred Stock immediately prior to the Qualifying IPO; provided
further that if the price per share of the Class A Class A Common Stock of the Company paid
in such Qualifying IPO on or before October 31, 2011 is equal to or greater than $9.804 per share
(subject to appropriate adjustment in the event of any stock dividend, stock split, combination or
other similar recapitalization affecting such shares), then the Purchase Price shall not be
adjusted to less than $9.804 per share (subject to appropriate adjustment in the event of any stock
dividend, stock split, combination or other similar recapitalization affecting such shares);
provided, further, however that if the price per share of the Class A Common Stock
of the Corporation issued in a Qualifying IPO on or before October 31, 2011 is less than $9.804 per
share (subject to appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting such shares), then the Purchase Price shall
be immediately adjusted to such lower Series C Conversion Price. By way of example only, should
this Warrant become exercisable under the last proviso of the preceding sentence of this Section
23, the Holder shall have the right to purchase such shares of Class A Common Stock as shall equal
$75,000 divided by the adjusted Purchase Price that is lower than $9.804 under such proviso.
All capitalized terms used in this Section 23 that are not defined in this Warrant, shall have
the meaning ascribed to such term in the Articles as currently in effect and filed with the
Secretary of the State of Delaware on the date hereof. The Holder of this Warrant shall be entitled
to not less than ten days prior written notice of any proposed amendment to the Articles that would
alter, modify or amend the provisions of Section 4.1.2.
24. Value. The Company and the Holder agree that the value of this Warrant on the date of
grant is $100.
| Kior, Inc. |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | CEO | |||
7.
Subscription
To: |
||||
Date: |
||||
The undersigned hereby subscribes for _________________ shares of Preferred Stock covered by this
Warrant. The certificate(s) for such shares shall be issued in the name of the undersigned or as
otherwise indicated below:
1.
Net Issue Election Notice
| To: | Date: |
The undersigned hereby elects under Section 4 to surrender the right to purchase shares of
Preferred Stock pursuant to this Warrant. The certificate(s) for such shares issuable upon such
net issue election shall be issued in the name of the undersigned or as otherwise indicated below:
1.
Assignment
For value received _____________________________ hereby sells, assigns and transfers unto
[Please print or typewrite name and address of Assignee]
Dated: |
||||
| Signature | ||||
| Name for Registration | ||||
| In the Presence of: | ||||
1.
Exhibit A
Amended and Restated Certificate of Incorporation
See attached pages.
1.
Exhibit B
Capitalization Table
1.
