Contract
EXHIBIT
10.20
THIS
WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), OR ANY STATE SECURITIES LAWS, HAS BEEN ACQUIRED FOR INVESTMENT, AND
MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS A
REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE LAW IS IN EFFECT WITH
REGARD THERETO OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
THE
SALE, TRANSFER OR ASSIGNMENT OF THIS WARRANT IS SUBJECT TO RESTRICTIONS ON
TRANSFER AND OTHER TERMS AND CONDITIONS CONTAINED IN A CERTAIN AMENDED AND
RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT, AND MAY NOT BE SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE WITH THE TERMS
THEREOF. THE COMPANY WILL FURNISH A COPY OF THE FULL TEXT OF SUCH
RESTRICTIONS TO THE HOLDER OF RECORD OF THIS WARRANT UPON WRITTEN REQUEST AND
WITHOUT CHARGE.
| No. W-D-[____] | For the Purchase of |
| Date of Issuance: [______] | [____] Shares of |
| Series D Convertible Preferred Stock |
WARRANT
FOR THE PURCHASE OF
[____]
SHARES OF
SERIES
D CONVERTIBLE PREFERRED STOCK
OF
NEXX
SYSTEMS, INC.
(A
Delaware corporation)
VOID
AFTER 5:00 P.M., BOSTON, MASSACHUSETTS TIME,
ON
OCTOBER 26, 2015
NEXX Systems, Inc., a Delaware
corporation (the “Company”), hereby certifies that [______], or its registered
assigns (the “Registered Holder”), are entitled, subject to the terms set forth
below, to acquire from the Company upon exercise or conversion of this Warrant,
at any time or from time to time on or before October 26, 2015 (the “Expiration
Date”) at not later than 5:00 p.m., Boston, Massachusetts Time, [_______] shares
of the Company’s Series D Convertible Preferred Stock, $.001 par value per
share (the “Shares”), at a purchase price of $0.01 per
Share. The number of Shares purchasable upon exercise of this
Warrant, and the purchase price per Share, each as adjusted from time to time
pursuant to the provisions of this Warrant, are hereinafter referred to as the
“Shares” and the “Purchase Price,” respectively.
1. Exercise.
(a) This
Warrant may be exercised by the Registered Holder, in whole or in part, at any
time on or before the Expiration Date (provided that if such date shall fall on
a weekend or United States holiday, this Warrant may be exercised on the next
succeeding business day), in each case by surrendering this Warrant, with the
exercise form attached hereto as Exhibit A duly
executed by such Registered Holder, at the principal office of the Company, or
at such other office or agency as the Company may designate, accompanied by
payment in full, in lawful money of the United States, of the Purchase Price
payable in respect of the number of Shares purchased upon such
exercise.
(b) Each
exercise of this Warrant shall be deemed to have been effected immediately prior
to the close of business on the day on which this Warrant shall have been
surrendered to the Company as provided in
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subsection
1(a) above (the "Exercise Date"). At such time, the person or persons
in whose name or names any certificates for Shares are to be issuable as
provided in subsection 1(c) below shall become the holder or holders of record
of the Shares so required to be represented by such certificates.
(c) As
soon as practicable after the exercise of this Warrant in part and in compliance
with subsection 1(a) above, and in any event within ten (10) days thereafter,
the Company at its expense will cause to be issued in the name of, and delivered
to, the Registered Holder, or, subject to the terms and conditions hereof, to
such other person or place as such Registered Holder (upon payment by such
Registered Holder of any applicable transfer taxes) may direct, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on the
face or faces thereof for the number of Shares equal (without giving effect to
any adjustment therein) to the number of such Shares called for on the face of
this Warrant minus the number of such Shares purchased by the Registered Holder
upon such exercise as provided in subsection 1(a) above.
|
2.
|
Adjustments.
|
(a) If
the Company’s outstanding Shares shall be subdivided into a greater Number of
Shares or a dividend in Shares or any security convertible into Shares shall be
paid in respect of Shares, the Purchase Price in effect immediately prior to
such subdivision or at the record date of such dividend shall simultaneously
with the effectiveness of such subdivision or immediately after the record date
of such dividend be proportionately reduced. If outstanding Shares
shall be combined into a smaller Shares, the Purchase Price in effect
immediately prior to such combination shall, simultaneously with the
effectiveness of such combination, be proportionately increased. When
any adjustment is required to be made in the Purchase Price, the number of
Shares purchasable upon the exercise of this Warrant shall be changed to the
number determined by dividing (i) an amount equal to the number of Shares
issuable upon the exercise of this Warrant immediately prior to such adjustment,
multiplied by the Purchase Price in effect immediately prior to such adjustment,
by (ii) the Purchase Price in effect immediately after such
adjustment.
(b) If
there shall occur any capital reorganization or reclassification of the
Company’s Shares (other than a subdivision or combination as provided for in
subsection 2(a) above), then, as part of any such reorganization or
reclassification, lawful provision shall be made so that the Registered Holder
of this Warrant shall have the right thereafter to receive upon the exercise
hereof the kind and number of Shares or other securities or property which such
Registered Holder would have been entitled to receive if, immediately prior to
any such reorganization or reclassification, such Registered Holder had held the
number of Shares which were then purchasable upon the exercise of this
Warrant. In any such case, appropriate adjustment (as reasonably
determined by the Board of Directors of the Company) shall be made in the
application of the provisions set forth herein with respect to the rights and
interests thereafter of the Registered Holder of this Warrant such that the
provisions set forth in this Section 2 (including provisions with respect to
adjustment of the Purchase Price) shall thereafter be applicable, as nearly as
is reasonably practicable, in relation to any Shares or other securities or
property thereafter deliverable upon the exercise of this Warrant.
(c) The
Company will not, by amendment of its Certificate of Incorporation or through
any reorganization, recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 2 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.
(d) When
any adjustment is required to be made in the Purchase Price, the Company shall
promptly mail to the Registered Holder a certificate setting forth the Purchase
Price after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Such certificate shall also set forth the
kind and amount of Shares or other securities or property into which this
Warrant shall be exercisable following the occurrence of any of the events
specified in this Section 2.
3. Fractional
Shares. The Company shall not be required upon the exercise or
conversion of this Warrant to issue any fractional Shares, but shall make an
adjustment therefor in cash on the basis of the then Fair Market Value of the
Shares, as determined pursuant to subsection 1(b) above.
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4. Limitation on Sales,
etc.
(a) Each
holder of this Warrant acknowledges that this Warrant and the Shares have not
been registered under the Act, and agrees not to sell, pledge, distribute, offer
for sale, transfer or otherwise dispose of this Warrant or any Shares issued
upon its exercise in the absence of (i) an effective registration statement
under the Act as to this Warrant or such Shares and registration or
qualification of this Warrant or such Shares under any applicable state
securities or “blue sky” law then in effect, or (ii) the delivery to the Company
of an opinion of counsel, satisfactory to the Company, that such registration
and qualification are not required.
(b) Notwithstanding
the foregoing, no registration or opinion of counsel shall be required for
(i) a transfer by a Registered Holder which is a corporation to a wholly
owned subsidiary of such corporation, a transfer by a Registered Holder which is
a partnership to a partner of such partnership or a retired partner of such
partnership or to the estate of any such partner or retired partner, or a
transfer by a Registered Holder which is a limited liability company to a member
of such limited liability company or a retired member or to the estate of any
such member or retired member, provided that the transferee in each case agrees
in writing to be subject to the terms of this Section 4, or (ii) a
transfer made in accordance with Rule 144 under the Act.
(c) Each
certificate representing Shares shall bear a legend substantially in the
following form:
“These
Shares have not been registered under the Securities Act of 1933, as amended
(the “Act”), or any state securities laws, has been acquired for investment, and
may not be sold, pledged, hypothecated or otherwise transferred unless a
registration statement under the Act and applicable state law is in effect with
regard thereto or unless an exemption from such registration is
available.”
The
foregoing legend shall be removed from the certificates representing any Shares,
at the request of the holder thereof, at such time as they become eligible for
resale pursuant to Rule 144(k) under the Act.
(d) In
addition, without limiting the generality of the foregoing, the Company may
delay for not more than thirty (30) days issuance of the Shares until completion
of any action or obtaining of any consent, which, in the opinion of counsel to
the Company, is required under any applicable law (including without limitation
state securities or “blue sky” laws), provided that the Company shall use its
best efforts to complete such action or obtain such consent as soon as
possible.
5. Investment
Purpose. The holder of this Warrant, by acceptance hereof,
represents and warrants that this Warrant has been acquired for investment only
and not with a view to, or for sale in connection with, a distribution thereof
and not with a view to its resale, and that this Warrant has been acquired for
the holder’s own account and not with a view to its division among others, and
that no other person has any direct or indirect beneficial interest in this
Warrant.
6. Liquidating
Dividends. If the Company pays a dividend or makes a
distribution on the Shares payable otherwise than in cash out of earnings or
earned surplus (determined in accordance with generally accepted accounting
principles) except for a dividend payable in Shares (a “Liquidating Dividend”),
then the Company will pay or distribute to the Registered Holder of this
Warrant, upon the exercise or conversion hereof, in addition to the Shares
purchased upon such exercise or conversion, the Liquidating Dividend which would
have been paid to such Registered Holder if it had been the owner of record of
such Shares immediately prior to the date on which a record is taken for such
Liquidating Dividend or, if no record is taken, the date as of which the record
holders of Shares entitled to such dividends or distribution are to be
determined.
7. No
Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, 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.
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8. Notices of Record Date,
etc. In case:
(a) the
Company shall take a record of the holders of its Shares (or other securities at
the time deliverable upon the exercise of this Warrant) for the purpose of
entitling or enabling them to receive any dividend or other distribution, or to
receive any right to subscribe for or purchase any Shares of any class or any
other securities, or to receive any other right or for determining which
stockholders are entitled to notice of a meeting of stockholders or to execute
an action by written consent without a meeting; or
(b) of
any capital reorganization of the Company, any reclassification of the Shares of
the Company, any consolidation or merger of the Company with or into another
corporation (other than a consolidation or merger in which the Company is the
surviving entity), or any transfer of all or substantially all of the assets of
the Company; or
(c) of
the voluntary or involuntary dissolution, liquidation or winding-up of the
Company;
then, and
in each such case, the Company will mail or cause to be mailed to the Registered
Holder of this Warrant a notice specifying, as the case may be, (i) the date on
which a record is to be taken for the purpose of such dividend, distribution,
right, meeting or action without a meeting, and stating the amount and character
of such dividend, distribution or right, or (ii) the effective date on which
such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up is to take place, and the time, if any is
to be fixed, as of which the holders of record of Shares (or such other
securities at the time deliverable upon the exercise or conversion of this
Warrant) shall be entitled to exchange their Shares (or such other securities)
for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be mailed at least ten (10) days prior
to the record date or effective date for the event specified in such
notice.
9. Reservation of
Shares. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise or conversion of
this Warrant, such Shares and other securities and property as from time to time
shall be issuable upon the exercise or conversion of this Warrant.
10. Replacement of
Warrants. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and
(in the case of loss, theft or destruction) upon delivery of an indemnity
agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
11. Warrant Register;
Transfers
(a) The
Company will maintain a register containing the names and addresses of the
Registered Holders of this Warrant. Any Registered Holder may change
its, his or her address as shown on the warrant register by written notice to
the Company requesting such change.
(b) Until
any transfer of this Warrant is made in the warrant register, the Company may
treat the Registered Holder of this Warrant as the absolute owner hereof for all
purposes; provided, however, that if and
when this Warrant is properly assigned in blank, the Company may (but shall not
be obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
12. Termination Upon Certain
Events. In the event that the Company proposes at any time (a)
to effect a sale of all or substantially all of the assets of the Company to,
(b) to effect a merger or consolidation of the Company with or into, any other
entity (other than (i) a merger in which the sole consideration delivered to the
securityholders (including the Registered Holder) of the Company consists of
equity securities of the surviving corporation, or (ii) a merger, the sole
purpose of which is to change the state of incorporation of the Company), (c) to
effect a dissolution or the adoption of a plan of liquidation of the Company, or
(d) to effect an underwritten public offering of the Company’s Common
Stock (or other securities) (the “IPO”), then, in connection with
each such event, the Company shall give the Registered Holder (1) at least 20
days prior written notice of the date on
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which the
same will take place (and specifying the date on which the holders of Shares (or
other securities) of the Company will be entitled to exchange their Shares (or
others securities) of the Company for securities or other property deliverable
upon the occurrence of such event), with respect to the matters referred to in
(a) through (c); and (2) in the case of the matter referred to in (d) above, to
exercise all or a portion of this Warrant prior to the IPO. In the
event that the Registered Holder does not exercise its rights under this Warrant
within said twenty (20) day period, then, upon the expiration of such time
period, this Warrant shall terminate and become null and void.
13. Mailing of Notices,
etc. All notices and other communications hereunder must be
given in writing and either (a) delivered in person, (b) sent by a
reputable courier service guaranteeing delivery within one business day,
(c) telecopied, provided electronic confirmation of successful transmission
is received by the sending party and a confirmation copy is sent on the same day
as the telecopy transmission by certified mail, return receipt requested, or (d)
mailed by certified or registered mail, postage prepaid, receipt requested as
follows:
If
to Company, addressed to:
NEXX
Systems, LLC
000
Xxxxxxxxx Xxxxxxxx, Xxxxxxxx #0
Xxxxxxxxx,
XX 00000-0000
Attention:
President
Fax: 000-000-0000
With
a copy to:
Mintz,
Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
Xxx
Xxxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn:
Xxxx X. Xxxxxxx, Esq.
Fax:
(000) 000-0000
If
to Registered Holder, addressed to:
[_____]
15. No Rights as
Stockholder. Until the exercise or conversion of this Warrant,
the Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
16. Change or
Waiver. Any term of this Warrant may be changed or waived only
by an instrument in writing signed by the party against which enforcement of the
change or waiver is sought.
17. Headings. The
headings in this Warrant are for purposes of reference only and shall not limit
or otherwise affect the meaning of any provision of this Warrant.
18. Governing
Law. This Warrant will be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
conflict of law principles hereof.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the Company has caused this Warrant to be issued as of the date
first set forth above.
NEXX
Systems, Inc.
By: ________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President,
Finance
Warrant
Number: [_____]
Series D
Shares: [_____]
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EXHIBIT
A
EXERCISE
FORM
Date: __________________
To: NEXX
System, Inc.
The undersigned, pursuant to the
provisions set forth in the attached Warrant (No. W-64), hereby irrevocably (a)
__elects to purchase ____________ Shares (the “Shares”) covered by
such Warrant and herewith makes payment of $__________, representing the full
purchase price for such Shares at the price per Share provided for in such
Warrant or (b) __elects to convert such Warrant into __ Shares pursuant to the
terms of the Warrant.
The undersigned is aware that the
Shares have not been registered under the Securities Act of 1933, as amended
(the “1933 Act”), or any state securities laws. The undersigned
understands that the reliance by the Company on exemptions under the 1933 Act is
predicated in part upon the truth and accuracy of the statements of the
undersigned in this Purchase Form.
The undersigned represents and warrants
that (a) it has been furnished with all information which it deems necessary to
evaluate the merits and risks of acquiring the Shares; (b) it has had the
opportunity to ask questions concerning the Shares and the Company and all
questions posed have been answered to its satisfaction; (c) it has been given
the opportunity to obtain any additional information it deems necessary to
verify the accuracy of any information obtained concerning the Shares and the
Company; and (d) it has such knowledge and experience in financial and business
matters that it is able to evaluate the merits and risks of purchasing the
Shares and to make an informed investment decision relating
thereto.
The undersigned hereby represents and
warrant that it is acquiring the Shares for its own account for investment and
not with a view to the sale or distribution of all or any part of the
Shares.
The undersigned understands that
because the Shares have not been registered under the 1933 Act, it must continue
to bear the economic risk of the investment for an indefinite time and the
Shares cannot be sold unless the Shares are subsequently registered under
applicable federal and state securities laws or an exemption from such
registration is available.
The undersigned agrees that
it will in no event sell or distribute or otherwise dispose of all or any part
of the Shares unless (a) there is an effective registration statement
under the 1933 Act and applicable state securities laws covering any such
transaction involving the Shares or (b) the Company receives an opinion of legal
counsel to the undersigned stating that such transaction is exempt from
registration or the Company otherwise satisfies itself that such transaction is
exempt from registration. The undersigned consents to the placing of
a legend on its certificate, if any, for the Shares stating that the Shares have
not been registered. and setting forth or referring to the restrictions on
transfer described herein and to the placing of a stop transfer order on the
books of the Company and with any transfer agents against the Shares until the
Shares may be legally transferred or resold in accordance with the terms of such
restrictions.
The undersigned has considered the
Federal and state income tax implications of the exercise of the Warrant and the
purchase and subsequent sale of the Shares.
Signature: __________________________________
Title: ______________________________________
Date: _____________________________________
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