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EXHIBIT 4.27
No. WSI-100 Right to Purchase 250,000
February 9, 2000 Shares of Common Stock
WARRANT
SUPERCONDUCTOR TECHNOLOGIES INC.
This Certifies that subject to the terms of this agreement, Wilmington
Securities, Inc. (the "Warrantholder") is entitled to subscribe for and purchase
from Superconductor Technologies Inc, a Delaware corporation (The "Company"), at
the Warrant Price defined in Section 2 herein, Two Hundred Fifty Thousand
(250,000) fully paid and non-assessable shares of the Company's Common Stock
(the "Common Stock:"), such price and such number of shares being subject to
adjustment upon occurrence of the contingencies set forth in this Warrant.
This Warrant is issued pursuant to a Securities Purchase Agreement dated
as of January 4, 2000 between the Company and Warrantholder.
Upon delivery of this Warrant (with the Notice of Exercise in the form
attached hereto as (Exhibit A), together with payment of the Warrant Price of
the shares of Common Stock thereby purchased, at the principal office of the
Company or at such other office or agency as the Company may designate by notice
in writing to the holder hereof, the holder of this Warrant shall be entitled to
receive a certificate or certificates for the shares of Common Stock so
purchased. All shares of Common Stock which may be issued upon the exercise of
this Warrant will, upon issuance, be fully paid and non-assessable ad free from
all taxes, liens and charges with respect thereto.
This Warrant is subject to the following terms and conditions:
1. Term of Warrant.
This Warrant may be exercised in whole or in part, at any time after
issuance and prior to 5:00 p.m., Eastern Standard Time, February 8, 2005.
On February 8, 2005, this Warrant, to the extent not exercised, shall
terminate.
2. WARRANT PRICE. The exercise price of this Warrant (the "Warrant
Price) shall equal $3.575 per share.
3. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES.
The number and kind of securities purchasable upon the exercise of this
Warrant and the Warrant Price shall be subject to adjustment from time to time
in accordance with the following provisions: provided that, no such adjustment
shall be made if a corresponding adjustment is made pursuant to the Company's
Amended and Restated Certificate of Incorporation.
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(a) Reclassification, Consolidate or Merger. In case of any
reclassification or change of outstanding securities of the class issuable upon
exercise of this Warrant (other than as a result of a subdivision or
combination), or in case of any consolidation or merger of the Company with or
into another corporation, the Company, or such successor corporation, as the
case may be, shall execute a new Warrant, providing that the holder of this
Warrant shall have the right to exercise such new Warrant and procure upon such
exercise in lieu of each share of Common Stock theretofore issuable upon
exercise of this Warrant the kind and amount of shares of stock, other
securities, money and property receivable upon such reclassification, change,
consolidation or merger by a holder of one share of Common Stock. Such new
Warrant shall provide for adjustments which shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Section 3. The provisions
of this subsection (a) shall similarly apply to successive reclassifications,
changes, consolidations and mergers.
(b) Subdivision or Combination of Shares. If at any time on or after the
date of this Warrant the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall be proportionately reduced and the
number of shares receivable upon exercise of the Warrant shall be
proportionately increased; and, conversely, if at any time on or after the date
of this Warrant the outstanding number of shares of Common Stock shall be
combined into a smaller number of shares, the Warrant Price in effect
immediately prior to such combination shall be proportionately increased and the
number of shares receivable upon exercise of the Warrant shall be
proportionately decreased.
(c) Adjustment of Number of Shares. Upon each adjustment in the Warrant
Price, the number of Shares of Common Stock purchasable hereunder shall be
adjusted, to the nearest whole share, to the product obtained by multiplying the
number of shares purchasable immediately prior to such adjustment in the Warrant
Price by a fraction, the numerator of which shall be the Warrant Price
immediately prior to such adjustment and the denominator of which shall be the
Warrant Price immediately thereafter.
4. NOTICES.
(a) Upon any adjustment of the Warrant Price and any increase or
decrease in the number of shares of Common Stock purchasable upon the exercise
of this Warrant, then, and in each such case, the Company, within thirty (30)
days thereafter, shall give written notice thereof to the registered holder of
this Warrant (the "Notice"). The Notice shall be mailed to the address of such
holder as shown on the books of the Company, and shall state the Warrant Price
as adjusted and the increased or decreased number of shares purchasable upon the
exercise of this Warrant, setting forth in reasonable detail the method of
calculation of each.
(b) In the event that the Company shall propose at any time to effect a
change of control, the Company shall send to the Warrantholder at lease ten (10)
days' prior written notice of the date when the same shall take place.
(c) Each such written notice shall be given by first class mail, postage
prepaid, addressed to the Warrantholder at the address as shown on the books of
the Company for the Warrantholder.
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5. INVESTMENT LETTER. Upon exercise or conversion of this Warrant in
accordance with the provisions hereof, the Warrantholder shall execute and
deliver to the Company an investment letter in the form attached hereto as
Exhibit B.
6. RESTRICTIONS ON TRANSFER. Certificates representing any of the Common
Stock acquired pursuant to the provisions of this Warrant shall have endorsed
thereon legends substantially in the following form, as appropriate.
(a) Unless such shares of Common Stock are received in a transaction
registered under the Securities Act and qualified (if necessary) under
applicable state securities laws:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE
BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT
STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM
THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SAID ACT."
(b) Any legend required to be placed thereon by any applicable state
securities laws.
7. COMPLIANCE WITH ACT. The Warrantholder, by acceptance hereof, agrees
that this Warrant and the Common Stock to be issued upon the exercise or
conversion hereof are being acquired solely for its own account and not as a
nominee for any other party and not with a view toward the resale or
distribution thereof and that it will not offer, sell or otherwise dispose of
this Warrant or any of the Common Stock to be issued upon the exercise or
conversion hereof except in accordance herewith and under circumstances which
will not result in a violation of the Securities Act or of applicable state
securities laws.
8. MISCELLANEOUS.
(a) The terms of this Warrant shall be binding upon and shall inure to
the benefit of any successors or assigns of the Company and of the holder or
holders hereof and of the Common Stock issued or issuable upon the exercise
hereof.
(b) No holder of this Warrant, as such, shall be entitled to vote or
receive dividends or be deemed to be a stockholder of the Company for any
purpose, nor shall anything contained in this Warrant be construed to confer
upon the holder of this Warrant, as such, any rights of a stockholder of the
Company or any right to vote, give or withhold consent to any corporate action,
receive notice of meetings, receive dividends or subscription right, or
otherwise.
(c) Receipt of this Warrant by the holder hereof shall constitute
acceptance of and agreement to the foregoing terms and conditions.
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(d) The Company will not, by amendment of its Amended and Restated
Certificate of Incorporation or through any other means, avoid or seek to avoid
the observance or 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 of this Warrant against impairment.
(e) Upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant and, in the case of
any such loss, theft or distribution, upon delivery of an indemnity agreement
reasonably satisfactory in form and amount to the Company, or, in the case of
any such mutilation, upon surrender and cancellation of such Warrant, the
Company at its expense will execute and deliver, in lieu thereof, a new Warrant
of like date and tenor.
(f) This Warrant shall be nontransferable, other than pursuant to a
distribution without consideration of the Warrant by the Warrantholder of any of
its partners or retired partners. (g) This Warrant or any provision hereof may
be amended, waived, discharged or terminated only by an instrument in writing
signed by the Company and the party against which enforcement of the amendment,
waiver, discharge or termination is sought.
(h) This Warrant shall be governed by the laws of the State of
California.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
it's duly authorized officer.
Dated: February 9, 2000 SUPERCONDUCTOR TECHNOLOGIES INC.
By: X. Xxxxx Xxxxxx
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EXHIBIT A
NOTICE OF EXERCISE
TO: SUPERCONDUCTOR TECHNOLOGIES INC.
1. The undersigned hereby electors to purchase shares of the Common
Stock of Superconductor Technologies Inc. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full, together with all applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as
specified below:
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(Name)
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(Address)
3. The undersigned represents that the aforesaid shares of Common Stock
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 or reselling such
shares. In support thereof, the undersigned has executed the Investment
Representation Statement attached hereto as Exhibit B.
Signature of Warrantholder
By:
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Name:
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Title:
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Date:
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EXHIBIT B
SUPERCONDUCTOR TECHNOLOGIES
WARRANT EXERCISES
INVESTMENT REPRESENTATION STATEMENT
Purchaser: ______________________________
Company: ______________________________
Security: ______________________________
Number of Shares: ______________________________
Date: ______________________________
In connection with the purchase of the above-listed Securities, I, the
Purchaser, represent to the Company the following:
(a) I am an accredited investor within the meaning of Rule 501 under the
Securities Act of 1933, as amended (the "Securities Act") and have such
knowledge and experience in financial and business matters that I am capable of
evaluating the merits and risks of the purchase of the Securities.
(b) I am aware of the Company's business affairs and financial condition,
and have acquired sufficient information about the Company to reach an informed
and knowledgeable decision to acquire the Securities. In making my decision to
acquire the Securities, I am not relying on representations of any officer,
director, stockholder or agent of the Company. I am purchasing these Securities
for my own account for investment purposes only and not with a view to, or for
the resale in connection with, any "distribution" thereof for purposes of the
Securities Act.
(c) I further understand that the Securities must be held indefinitely
unless registered under the Securities Act or unless an exemption from
registration is otherwise available. In addition, i understand that the
certificate evidencing the securities will be imprinted with a legend which
prohibits the transfer of Securities unless they are registered or such
registration is not required in the opinion of counsel for the purchaser
satisfactory to the Company or unless the Company receives a no-action letter
from the Securities and Exchange Commission.
(d) I am familiar with the provisions of Rule 144, promulgated under the
Securities Act, which, in substance, permits limited public resale of
restricted securities acquired, directly or indirectly, from the issuer thereof
(or from an affiliate of such issuer), in a non-public offering subject to the
satisfaction of certain conditions, including, among other things: (1) the
resale occurring not less than one year after the later of the date the
securities were sold by the
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Company or the date they were sold by an affiliate of the Company, within the
meaning of Rule 144; and, in the case of an affiliate, or of a non-affiliate
who has held the securities less than two years, (2) the availability of certain
public information about the Company, (3) the sale being made through a broker
in an unsolicited "broker's transaction" or in transactions directly with a
market maker (as said term is defined under the Securities Exchange Act of
1934), and (4) the amount of securities being sold during any three month
period not exceeding the specified limitations stated therein, if applicable.
(e) I further understand that at the time I wish to sell the Securities
there may be no public market upon which to make such a sale, and that, even if
such a public market exists, the Company may not be satisfying the current
public information requirements of Rule 144, and that, in such event, I would
be precluded from selling the Securities under Rule 144 even if the one-year
minimum holding period had been satisfied.
Signature of Purchaser:
Wilmington Securities, Inc.
By:
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Name:
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Title:
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Date:
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