Attached files
file | filename |
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S-1/A - FORM S-1/A - Kior Inc | h80686a1sv1za.htm |
EX-3.4 - EX-3.4 - Kior Inc | h80686a1exv3w4.htm |
EX-3.1 - EX-3.1 - Kior Inc | h80686a1exv3w1.htm |
EX-4.2 - EX-4.2 - Kior Inc | h80686a1exv4w2.htm |
EX-3.3 - EX-3.3 - Kior Inc | h80686a1exv3w3.htm |
EX-4.9 - EX-4.9 - Kior Inc | h80686a1exv4w9.htm |
EX-1.1 - EX-1 - Kior Inc | h80686a1exv1w1.htm |
EX-3.2 - EX-3.2 - Kior Inc | h80686a1exv3w2.htm |
EX-4.8 - EX-4.8 - Kior Inc | h80686a1exv4w8.htm |
EX-23.1 - EX-23.1 - Kior Inc | h80686a1exv23w1.htm |
EX-10.9 - EX-10.9 - Kior Inc | h80686a1exv10w9.htm |
EX-21.1 - EX-21.1 - Kior Inc | h80686a1exv21w1.htm |
EX-4.12 - EX-4.12 - Kior Inc | h80686a1exv4w12.htm |
EX-10.7 - EX-10.7 - Kior Inc | h80686a1exv10w7.htm |
EX-4.14 - EX-4.14 - Kior Inc | h80686a1exv4w14.htm |
EX-4.11 - EX-4.11 - Kior Inc | h80686a1exv4w11.htm |
EX-10.8 - EX-10.8 - Kior Inc | h80686a1exv10w8.htm |
EX-4.13 - EX-4.13 - Kior Inc | h80686a1exv4w13.htm |
EX-4.10 - EX-4.10 - Kior Inc | h80686a1exv4w10.htm |
EX-10.10 - EX-10.10 - Kior Inc | h80686a1exv10w10.htm |
Exhibit 4.7
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE ACT), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE
ACT AND APPLICABLE STATE SECURITIES LAWS IN ACCORDANCE WITH APPLICABLE REGISTRATION REQUIREMENTS OR
AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE
COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THIS WARRANT MUST BE SURRENDERED TO
THE COMPANY OR ITS TRANSFER AGENT AS A CONDITION PRECEDENT TO THE SALE, TRANSFER, PLEDGE OR
HYPOTHECATION OF ANY INTEREST IN ANY OF THE SECURITIES REPRESENTED HEREBY.
WARRANT TO PURCHASE SHARES CAPITAL STOCK
of
KIOR, INC.
of
KIOR, INC.
Dated as of ________
Void after the date specified in Section 8
Void after the date specified in Section 8
No. __ | Warrant to Purchase Shares of Class A Common Stock |
THIS CERTIFIES THAT, for value received,
______________, or its registered
assigns (the Holder), is entitled, subject to the provisions and upon the terms and conditions
set forth herein, to purchase from Kior, Inc., a Delaware corporation (the Company), Shares (as
defined below), in the amounts, at such times and at the price per share set forth in Section 1.
The term Warrant as used herein shall include this Warrant and any warrants delivered in
substitution or exchange therefor as provided herein. This Warrant is issued pursuant to the terms
of __________ by and between the Company and ______________.
The following is a statement of the rights of the Holder and the conditions to which this
Warrant is subject, and to which Holder, by acceptance of this Warrant, agrees:
1. Number and Price of Shares; Exercise Period.
(a)
Definition of Shares. Shares shall mean the Companys Class A Common Stock.
(b) Number of Shares. Subject to any previous exercise of the Warrant, the Holder shall have
the right to purchase up to ________ Shares, prior to (or in connection with) the expiration of
this Warrant as provided in Section 8.
(c) Exercise Price. The exercise price per Share shall be equal to $___ per Share, subject to
adjustment pursuant hereto (the Exercise Price).
(d) Exercise Period. This Warrant shall be exercisable, in whole or in part, any time after
the issuance hereof and prior to (or in connection with) the expiration of this Warrant as set
forth in Section 8.
2. Exercise of the Warrant.
(a) Exercise. The purchase rights represented by this Warrant may be exercised at the election
of the Holder, in whole or in part, in accordance with Section 1, by:
(i) the tender to the Company at its principal office (or such other office or agency as the
Company may designate) of a notice of exercise in the form of Exhibit A (the Notice of Exercise),
duly completed and executed by or on behalf of the Holder, together with the surrender of this
Warrant; and
(ii) the payment to the Company of an amount equal to (x) the Exercise Price multiplied by (y)
the number of Shares being purchased, by (a) wire transfer or certified, cashiers or other check
acceptable to the Company and payable to the order of the Company; (b) surrender and cancellation
of promissory notes or other instruments representing indebtedness of the Company to the Holder; or
(c) a combination of (a) and (b).
(b) Net Issue Exercise. In lieu of exercising this Warrant pursuant to Section 2(a)(ii), if
the fair market value of one Share is greater than the Exercise Price (at the date of calculation
as set forth below), the Holder may elect to receive a number of Shares equal to the value of this
Warrant (or of any portion of this Warrant being canceled) by surrender of this Warrant at the
principal office of the Company (or such other office or agency as the Company may designate)
together with a properly completed and executed Notice of Exercise reflecting such election, in
which event the Company shall issue to the Holder that number of Shares computed using the
following formula:
X
|
= | Y (A B)
|
Where:
X | = | The number of Shares to be issued to the Holder | |
Y | = | The number of Shares purchasable under this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being canceled (at the date of such calculation) | |
A | = | The fair market value of one Share (at the date of such calculation) | |
B | = | The Exercise Price (as adjusted to the date of such calculation) |
For purposes of the calculation above, the fair market value of one Share shall be determined
by the Board of Directors of the Company, acting in good faith; provided, however, that:
(i) where a public market exists for the Companys Shares at the time of such exercise, the
fair market value per Share shall be the average of the closing bid and asked prices of the Shares
or the closing price quoted on the national securities exchange on which the Shares are listed as
published in the Wall Street Journal, as applicable, for the ten (10) trading day period
ending five (5) trading days prior to the date of determination of fair market value; and
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(ii) if the Warrant is exercised in connection with the Companys initial public offering of
Shares, the fair market value per Share shall be the per share offering price to the public of the
Companys initial public offering.
(c) Stock Certificates. The rights under this Warrant shall be deemed to have been exercised
and the Shares issuable upon such exercise shall be deemed to have been issued immediately prior to
the close of business on the date this Warrant is exercised in accordance with its terms, and the
person entitled to receive the Shares issuable upon such exercise shall be treated for all purposes
as the holder of record of such Shares as of the close of business on such date. As promptly as
reasonably practicable on or after such date, and in any event within thirty (30) days thereafter,
the Company shall issue and deliver to the person or persons entitled to receive the same a
certificate or certificates for that number of shares issuable upon such exercise. In the event
that the rights under this Warrant are exercised in part and have not expired, the Company shall
execute and deliver a new Warrant reflecting the number of Shares that remain subject to this
Warrant.
(d) No Fractional Shares or Scrip. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of the rights under this Warrant. In lieu of such
fractional share to which the Holder would otherwise be entitled, the Company shall make a cash
payment equal to the Exercise Price multiplied by such fraction.
(e) Conditional Exercise. The Holder may exercise this Warrant conditioned upon (and effective
immediately prior to) consummation of any transaction that would cause the expiration of this
Warrant pursuant to Section 8 by so indicating in the notice of exercise.
(f) Automatic Exercise. If the Holder of this Warrant has not elected to exercise this Warrant
prior to expiration of this Warrant pursuant to Section 8, then this Warrant shall automatically
(without any act on the part of the Holder) be exercised pursuant to Section 2(b) effective
immediately prior to the expiration of the Warrant to the extent such net issue exercise would
result in the issuance of Shares, unless Holder shall earlier provide written notice to the Company
that the Holder desires that this Warrant expire unexercised. If this Warrant is automatically
exercised, the Company shall notify the Holder of the automatic exercise as soon as reasonably
practicable, and the Holder shall surrender the Warrant to the Company in accordance with the terms
hereof.
(g) Reservation of Stock. The Company agrees during the term the rights under this Warrant are
exercisable to reserve and keep available from its authorized and unissued shares of Class A Common
Stock solely for the purpose of effecting the exercise of this Warrant such number of shares as
shall from time to time be sufficient to effect the exercise of the rights under this Warrant; and
if at any time the number of authorized but unissued shares of Class A Common Stock shall not be
sufficient for purposes of the exercise of this Warrant in accordance with its terms and the
conversion of the Shares, without limitation of such other remedies as may be available to the
Holder, the Company will use all reasonable efforts to take such corporate action as may be
necessary to increase its authorized and unissued shares of its Class A Common Stock to a number of
shares as shall be sufficient for such purposes. The Company represents and warrants that all
shares that may be issued upon the exercise of this Warrant will, when issued in accordance with
the terms hereof, be validly issued, fully paid and nonassessable.
3. Replacement of the Warrant. Subject to the 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, on delivery of an indemnity agreement reasonably satisfactory in form and
substance to the Company or, in the case of mutilation, on surrender and cancellation of this
Warrant, the Company at the expense of the Holder shall execute and deliver, in lieu of this
Warrant, a new warrant of like tenor and amount.
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4. Transfer of the Warrant.
(a) Warrant Register. The Company shall maintain a register (the Warrant Register)
containing the name and address of the Holder or Holders. Until this Warrant is transferred on the
Warrant Register in accordance herewith, the Company may treat the Holder as shown on the Warrant
Register as the absolute owner of this Warrant for all purposes, notwithstanding any notice to the
contrary. Any Holder of this Warrant (or of any portion of this Warrant) may change its address as
shown on the Warrant Register by written notice to the Company requesting a change.
(b) Warrant Agent. The Company may appoint an agent for the purpose of maintaining the Warrant
Register referred to in Section 4(a), issuing the Shares or other securities then issuable upon the
exercise of the rights under this Warrant, exchanging this Warrant, replacing this Warrant or
conducting related activities.
(c) Transferability of the Warrant. Subject to the provisions of this Warrant with respect to
compliance with the Securities Act of 1933, as amended (the Securities Act) and limitations on
assignments and transfers, including without limitation compliance with the restrictions on
transfer set forth in Section 5, title to this Warrant may be transferred by endorsement (by the
transferor and the transferee executing the assignment form attached as Exhibit B (the Assignment
Form)) and delivery in the same manner as a negotiable instrument transferable by endorsement and
delivery.
(d) Exchange of the Warrant upon a Transfer. On surrender of this Warrant (and a properly
endorsed Assignment Form) for exchange, subject to the provisions of this Warrant with respect to
compliance with the Securities Act and limitations on assignments and transfers, the Company shall
issue to or on the order of the Holder a new warrant or warrants of like tenor, in the name of the
Holder or as the Holder (on payment by the Holder of any applicable transfer taxes) may direct, for
the number of shares issuable upon exercise hereof, and the Company shall register any such
transfer upon the Warrant Register. This Warrant (and the securities issuable upon exercise of the
rights under this Warrant) must be surrendered to the Company or its warrant or transfer agent, as
applicable, as a condition precedent to the sale, pledge, hypothecation or other transfer of any
interest in any of the securities represented hereby.
(e) Taxes. In no event shall the Company be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of any certificate in a name other than
that of the Holder, and the Company shall not be required to issue or deliver any such certificate
unless and until the person or persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the Company that such tax
has been paid or is not payable.
5. Restrictions on Transfer of the Warrant and Shares; Compliance with Securities Laws. By
acceptance of this Warrant, the Holder agrees to comply with the following:
(a) Restrictions on Transfers. Any transfer of this Warrant or the Shares (the Securities)
must be in compliance with all applicable federal and state securities laws. The Holder agrees not
to make any sale, assignment, transfer, pledge or other disposition of all or any portion of the
Securities, or any beneficial interest therein, unless and until the transferee thereof has agreed
in writing for the benefit
of the Company to take and hold such Securities subject to, and to be bound by, the terms and
conditions set forth in this Warrant to the same extent as if the transferee were the original
Holder hereunder.
(b) Permitted Transfers. Permitted transfers include (i) a transfer not involving a change in
beneficial ownership, or (ii) transactions involving the distribution without consideration of
Securities by any Holder to an affiliate; provided, in each case, that the Holder shall give
written notice to the Company of
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the Holders intention to effect such disposition and shall have
furnished the Company with a detailed description of the manner and circumstances of the proposed
disposition.
(c) Investment Representation Statement. Unless the rights under this Warrant are exercised
pursuant to an effective registration statement under the Securities Act that includes the Shares
with respect to which the Warrant was exercised, it shall be a condition to any exercise of the
rights under this Warrant that the Holder shall have confirmed to the satisfaction of the Company
in writing, substantially in the form of Exhibit A-1, that the Shares so purchased are being
acquired solely for the Holders own account and not as a nominee for any other party, for
investment and not with a view toward distribution or resale and that the Holder shall have
confirmed such other matters related thereto as may be reasonably requested by the Company.
(d) Securities Law Legend. The Securities shall (unless otherwise permitted by the provisions
of this Warrant) be stamped or imprinted with a legend substantially similar to the following (in
addition to any legend required by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE ACT), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS IN ACCORDANCE WITH APPLICABLE
REGISTRATION REQUIREMENTS OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY
REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS. THIS CERTIFICATE MUST BE SURRENDERED TO THE COMPANY OR ITS TRANSFER AGENT
AS A CONDITION PRECEDENT TO THE SALE, TRANSFER, PLEDGE OR HYPOTHECATION OF ANY INTEREST IN
ANY OF THE SECURITIES REPRESENTED HEREBY.
(e) Instructions Regarding Transfer Restrictions. The Holder consents to the Company making a
notation on its records and giving instructions to any transfer agent in order to implement the
restrictions on transfer established in this Section 5.
(f) Removal of Legend. The legend referring to federal and state securities laws identified in
Section 5(d) stamped on a certificate evidencing the Shares and the stock transfer instructions and
record notations with respect to such securities shall be removed and the Company shall issue a
certificate without such legend to the holder of such securities if (i) such securities are
registered under the Securities Act, or (ii) such holder provides the Company with an opinion of
counsel reasonably acceptable to the Company to the effect that a sale or transfer of such
securities may be made without registration or qualification.
6. Adjustments. Subject to the expiration of this Warrant pursuant to Section 8, the number
and kind of shares purchasable hereunder and the Exercise Price therefor are subject to adjustment
from time to time, as follows:
(a) Merger or Reorganization. If at any time there shall be any reorganization,
recapitalization, merger or consolidation (a Reorganization) involving the Company (other than as
otherwise provided for herein or as would cause the expiration of this Warrant under Section 8) in
which shares of the Companys stock are converted into or exchanged for securities, cash or other
property, then, as a part of such Reorganization, lawful provision shall be made so that the Holder
shall thereafter be entitled to
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receive upon exercise of this Warrant, the kind and amount of
securities, cash or other property of the successor corporation resulting from such Reorganization,
equivalent in value to that which a holder of the Shares deliverable upon exercise of this Warrant
would have been entitled in such Reorganization if the right to purchase the Shares hereunder had
been exercised immediately prior to such Reorganization. In any such case, appropriate adjustment
(as determined in good faith by the Board of Directors of the successor corporation) shall be made
in the application of the provisions of this Warrant with respect to the rights and interests of
the Holder after such Reorganization to the end that the provisions of this Warrant shall be
applicable after the event, as near as reasonably may be, in relation to any shares or other
securities deliverable after that event upon the exercise of this Warrant.
(b) Reclassification of Shares. If the securities issuable upon exercise of this Warrant are
changed into the same or a different number of securities of any other class or classes by
reclassification, capital reorganization, conversion of all outstanding shares of the relevant
class or series (other than as would cause the expiration of this Warrant pursuant to Section 8) or
otherwise (other than as otherwise provided for herein) (a Reclassification), then, in any such
event, in lieu of the number of Shares which the Holder would otherwise have been entitled to
receive, the Holder shall have the right thereafter to exercise this Warrant for a number of shares
of such other class or classes of stock that a holder of the number of securities deliverable upon
exercise of this Warrant immediately before that change would have been entitled to receive in such
Reclassification, all subject to further adjustment as provided herein with respect to such other
shares.
(c) Subdivisions and Combinations. In the event that the outstanding shares of the securities
issuable upon exercise of this Warrant are subdivided (by stock split, by payment of a stock
dividend or otherwise) into a greater number of shares of such securities, the number of Shares
issuable upon exercise of the rights under this Warrant immediately prior to such subdivision
shall, concurrently with the effectiveness of such subdivision, be proportionately increased, and
the Exercise Price shall be proportionately decreased, and in the event that the outstanding shares
of the securities issuable upon exercise of this Warrant are combined (by reclassification or
otherwise) into a lesser number of shares of such securities, the number of Shares issuable upon
exercise of the rights under this Warrant immediately prior to such combination shall, concurrently
with the effectiveness of such combination, be proportionately decreased, and the Exercise Price
shall be proportionately increased.
(d) Redemption. In the event that all of the outstanding shares of the securities issuable
upon exercise of this Warrant are redeemed in accordance with the Companys certificate of
incorporation, this Warrant shall thereafter be exercisable for a number of shares of the Companys
Class A Common Stock equal to the number of shares of Class A Common Stock that would have been
received if this Warrant had been exercised in full immediately prior to such redemption.
(e) Notice of Adjustments. Upon any adjustment in accordance with this Section 6, the Company
shall give notice thereof to the Holder, which notice shall state the event giving rise to the
adjustment, the Exercise Price as adjusted and the number of securities or other property
purchasable upon
the exercise of the rights under this Warrant, setting forth in reasonable detail the method
of calculation of each. The Company shall, upon the written request of any Holder, furnish or cause
to be furnished to such Holder a certificate setting forth (i) such adjustments, (ii) the Exercise
Price at the time in effect and (iii) the number of securities and the amount, if any, of other
property that at the time would be received upon exercise of this Warrant.
7. Notification of Certain Events. Prior to the expiration of this Warrant pursuant to Section
8, in the event that the Company shall authorize:
(a) the issuance of any dividend or other distribution on the capital stock of the Company
(other than (i) dividends or distributions otherwise provided for in Section 6, (ii) repurchases of
capital stock
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issued to or held by employees, officers, directors or consultants of the Company or
its subsidiaries upon termination of their employment or services pursuant to agreements providing
for the right of said repurchase; (iii) repurchases of capital stock issued to or held by
employees, officers, directors or consultants of the Company or its subsidiaries pursuant to rights
of first refusal or first offer contained in agreements providing for such rights; or (iv)
repurchases of capital stock of the Company in connection with the settlement of disputes with any
stockholder), whether in cash, property, stock or other securities; or
(b) the voluntary liquidation, dissolution or winding up of the Company.
the Company shall send to the Holder of this Warrant at least twenty (20) days prior written notice
of the date on which a record shall be taken for any such dividend or distribution specified in
clause (a) or the expected effective date of any such other event specified in clause (b), as
applicable. The notice provisions set forth in this section may be shortened or waived
prospectively or retrospectively by the consent of the Holder of this Warrant.
8. Expiration of the Warrant. This Warrant shall expire and shall no longer be exercisable as
of the earlier of (i) 5:00 p.m., Pacific time, on __________, (ii) the Companys initial public
offering, or (iii) a transaction or series of related transactions in which a person, or a group of
affiliated persons, acquires from stockholders of the Company shares representing more than fifty
percent (50%) of the outstanding voting power of the Company or acquires all or substantially all
of the assets of the Company.
9. No Rights as a Stockholder. Nothing contained herein shall entitle the Holder to any rights
as a stockholder of the Company or to be deemed the holder of any securities that may at any time
be issuable on the exercise of the rights hereunder for any purpose nor shall anything contained
herein be construed to confer upon the Holder, as such, any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value or change of stock to no par value, consolidation,
merger, conveyance or otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or any other rights of a stockholder of the Company until the rights under the
Warrant shall have been exercised and the Shares purchasable upon exercise of the rights hereunder
shall have become deliverable as provided herein.
10. Representations and Warranties of the Holder. By acceptance of this Warrant, the Holder
represents and warrants to the Company as follows:
(a) Purchase for Own Account. This Warrant and the securities to be acquired upon
exercise of this Warrant by the Holder will be acquired for investment for the Holders account,
not as a nominee or agent, and not with a view to the public resale or distribution within the
meaning of the
Securities Act. Holder also represents that the Holder has not been formed for the specific
purpose of acquiring this Warrant or the Shares.
(b) Disclosure of Information. The Holder has received or has had full access to all the
information it considers necessary or appropriate to make an informed investment decision with
respect to the acquisition of this Warrant and its underlying securities. The Holder further has
had an opportunity to ask questions and receive answers from the Company regarding the terms and
conditions of the offering of this Warrant and its underlying securities and to obtain additional
information (to the extent the Company possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any information furnished to the Holder or to
which the Holder has access.
(c) Investment Experience. The Holder understands that the purchase of this Warrant and its
underlying securities involves substantial risk. The Holder has experience as an investor in
securities
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of companies in the development stage and acknowledges that the Holder can bear the
economic risk of such Holders investment in this Warrant and its underlying securities and has
such knowledge and experience in financial or business matters that the Holder is capable of
evaluating the merits and risks of its investment in this Warrant and its underlying securities
and/or has a preexisting personal or business relationship with the Company and certain of its
officers, directors or controlling persons of a nature and duration that enables the Holder to be
aware of the character, business acumen and financial circumstances of such persons.
(d) Accredited Investor Status. The Holder is an accredited investor within the meaning of
Regulation D promulgated under the Securities Act.
(e) The Securites Act. The Holder understands that this Warrant and the Shares issuable upon
exercise or conversion hereof have not been registered under the Securities Act in reliance upon a
specific exemption therefrom, which exemption depends upon, among other things, the bona fide
nature of the Holders investment intent as expressed herein. The Holder understands that this
Warrant and the Shares issued upon any exercise or conversion hereof must be held indefinitely
unless subsequently registered under the Securities Act and qualified under applicable state
securities laws, or unless exemption from such registration and qualification are otherwise
available.
11. Miscellaneous.
(a) Amendments. Except as expressly provided herein, neither this Warrant nor any term hereof
may be amended, waived, discharged or terminated other than by a written instrument referencing
this Warrant and signed by the Company and the Holder.
(b) Waivers. No waiver of any single breach or default shall be deemed a waiver of any other
breach or default theretofore or thereafter occurring.
(c) Notices. All notices and other communications required or permitted hereunder shall be in
writing and shall be mailed by registered or certified mail, postage prepaid, sent by facsimile or
otherwise delivered by hand, messenger or courier service addressed:
(i) if to the Holder, to the Holder at the Holders address or facsimile number as shown in
the Companys records, as may be updated in accordance with the provisions hereof, or until any
such Holder so furnishes an address or facsimile number to the Company, then to and at the address
or facsimile number of the last holder of this Warrant for which the Company has contact
information in its records; or
(ii) if to the Company, to the attention of the President or Chief Financial Officer of the
Company at the Companys address as shown on the signature page hereto, or at such other address as
the Company shall have furnished to the Holder, with a copy to Peter Buckland, Wilmer Cutler
Pickering Hale & Dorr LLP, 950 Page Mill Road, Palo Alto, California 94304.
Each such notice or other communication shall for all purposes of this Warrant be treated as
effective or having been given (i) if delivered by hand, messenger or courier service, when
delivered, or (ii) if sent by mail, at the earlier of its receipt or 72 hours after the same has
been deposited in a regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid, or (iii) if sent by facsimile, upon confirmation of facsimile
transfer. In the event of any conflict between the Companys books and records and this Warrant or
any notice delivered hereunder, the Companys books and records will control absent fraud or error.
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(d) Governing Law. This Warrant and all actions arising out of or in connection with this
Warrant shall be governed by and construed in accordance with the laws of the State of California,
without regard to the conflicts of law provisions of the State of California, or of any other
state.
(e) Titles and Subtitles. The titles and subtitles used in this Warrant are used for
convenience only and are not to be considered in construing or interpreting this Warrant. All
references in this Warrant to sections, paragraphs and exhibits shall, unless otherwise provided,
refer to sections and paragraphs hereof and exhibits attached hereto.
(f) Severability. If any provision of this Warrant becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such
provision in its entirety, to the extent necessary, shall be severed from this Warrant, and such
illegal, unenforceable or void provision shall be replaced with a valid and enforceable provision
that will achieve, to the extent possible, the same economic, business and other purposes of the
illegal, unenforceable or void provision. The balance of this Warrant shall be enforceable in
accordance with its terms.
(g) Entire Agreement. Except as expressly set forth herein, this Warrant (including the
exhibits attached hereto) constitutes the entire agreement and understanding of the Company and the
Holder with respect to the subject matter hereof and supersede all prior agreements and
understandings relating to the subject matter hereof.
(signature page follows)
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The Company signs this Warrant as of the date stated on the first page.
KIOR, INC. |
||||
By: | ||||
Name: | Fred Cannon | |||
Title: | President and CEO | |||
Address: 13001 Bay Park Road Pasadena, TX 77507 |
||||
(Signature Page to Warrant to Purchase Capital Stock of Kior, Inc.)
EXHIBIT A
NOTICE OF EXERCISE
TO: | KIOR, INC. | |
Attention: | President |
(1) | Exercise. The undersigned elects to purchase the following pursuant to the terms of the attached warrant: |
Number of shares: | ||||
Type of security: |
(2) | Method of Exercise. The undersigned elects to exercise the attached warrant pursuant to: |
o | A cash payment or cancellation of indebtedness, and tenders herewith payment of the purchase price for such shares in full, together with all applicable transfer taxes, if any. | ||
o | The net issue exercise provisions of Section 2(b) of the attached warrant. |
(3) | Conditional Exercise. Is this a conditional exercise pursuant to Section 2(e): |
o | Yes o No | ||
If Yes, indicate the applicable condition: | |||
(4) | Stock Certificate. Please issue a certificate or certificates representing the shares in the name of: |
o
|
The undersigned | |||
o |
OtherName: | |||
Address: | ||||
(5) | Unexercised Portion of the Warrant. Please issue a new warrant for the unexercised portion of the attached warrant in the name of: |
o |
The undersigned | |||
o |
OtherName: | |||
Address: | ||||
o |
Not applicable |
A-1
(6) | Investment Intent. The undersigned represents and warrants that the aforesaid shares are being acquired for investment for its own account, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof, and that the undersigned has no present intention of selling, granting any participation in, or otherwise distributing the shares, nor does it have any contract, undertaking, agreement or arrangement for the same, and all representations and warranties of the undersigned set forth in Section 10 of the attached warrant are true and correct as of the date hereof. | |
(7) | Investment Representation Statement. The undersigned has executed, and delivers herewith, an Investment Representation Statement in a form substantially similar to the form attached to the warrant as Exhibit A-1. |
(Print name of the warrant holder) | ||
(Signature) | ||
(Name and title of signatory, if applicable) | ||
(Date) | ||
(Fax number) |
(Signature page to the Notice of Exercise)
A-2
EXHIBIT A-l
INVESTMENT REPRESENTATION STATEMENT
INVESTOR:
|
||
COMPANY:
|
KIOR, INC. | |
SECURITIES:
|
THE WARRANT ISSUED ON ____________ (THE WARRANT) AND THE SECURITIES ISSUED OR ISSUABLE UPON EXERCISE THEREOF (INCLUDING UPON SUBSEQUENT CONVERSION OF THOSE SECURITIES) | |
DATE:
|
__________________ |
In connection with the purchase or acquisition of the above-listed Securities, the undersigned
Investor represents and warrants to, and agrees with, the Company as follows:
1. No Registration. The Investor understands that the Securities have not been, and will not
be, registered under the Securities Act of 1933, as amended (the Securities Act), by reason of a
specific exemption from the registration provisions of the Securities Act, the availability of
which depends upon, among other things, the bona fide nature of the investment intent and the
accuracy of the Investors representations as expressed herein or otherwise made pursuant hereto.
2. Investment Intent. The Investor is acquiring the Securities for investment for its own
account, not as a nominee or agent, and not with a view to, or for resale in connection with, any
distribution thereof. The Investor has no present intention of selling, granting any participation
in, or otherwise distributing the Securities, nor does it have any contract, undertaking, agreement
or arrangement for the same.
3. Investment Experience. The Investor has substantial experience in evaluating and investing
in private placement transactions of securities in companies similar to the Company, and has such
knowledge and experience in financial or business matters so that it is capable of evaluating the
merits and risks of its investment in the Company and protecting its own interests.
4. Speculative Nature of Investment. The Investor understands and acknowledges that its
investment in the Company is highly speculative and involves substantial risks. The Investor can
bear the economic risk of its investment and is able, without impairing its financial condition, to
hold the Securities for an indefinite period of time and to suffer a complete loss of its
investment.
5. Access to Data. The Investor has had an opportunity to ask questions of officers of the
Company, which questions were answered to its satisfaction. The Investor understands that any such
discussions, as well as any information issued by the Company, were intended to describe certain
aspects of the Companys business and prospects, but were not necessarily a thorough or exhaustive
description. The Investor acknowledges that any business plans prepared by the Company have been,
and continue to be, subject to change and that any projections included in such business plans or
otherwise are necessarily speculative in nature, and it can be expected that some or all of the
assumptions underlying the projections will not materialize or will vary significantly from actual
results.
A-1-1
6. Accredited Investor. The Investor is an accredited investor within the meaning of
Regulation D, Rule 501(a), promulgated by the Securities and Exchange Commission and agrees to
submit to the Company such further assurances of such status as may be reasonably requested by the
Company.
7. Residency. The residency of the Investor (or, in the case of a partnership or corporation,
such entitys principal place of business) is correctly set forth on the signature page hereto.
8. Restrictions on Resales. The Investor acknowledges that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or an exemption from such
registration is available. The Investor is aware of the provisions of Rule 144 promulgated under
the Securities Act, which permit resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, which may include, among other things, the availability of
certain current public information about the Company; the resale occurring not less than a
specified period after a party has purchased and paid for the security to be sold; the number of
shares being sold during any three-month period not exceeding specified limitations; the sale being
effected through a brokers transaction, a transaction directly with a market maker or a
riskless principal transaction (as those terms are defined in the Securities Act or the
Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder);
and the filing of a Form 144 notice, if applicable. The Investor acknowledges and understands that
the Company may not be satisfying the current public information requirement of Rule 144 at the
time the Investor wishes to sell the Securities and that, in such event, the Investor may be
precluded from selling the Securities under Rule 144 even if the other applicable requirements of
Rule 144 have been satisfied. The Investor understands and acknowledges that, in the event the
applicable requirements of Rule 144 are not met, registration under the Securities Act or an
exemption from registration will be required for any disposition of the Securities. The Investor
understands that, although Rule 144 is not exclusive, the Securities and Exchange Commission has
expressed its opinion that persons proposing to sell restricted securities received in a private
offering other than in a registered offering or pursuant to Rule 144 will have a substantial burden
of proof in establishing that an exemption from registration is available for those offers or sales
and that those persons and the brokers who participate in the transactions do so at their own risk.
9. No Public Market. The Holder understands and acknowledges that no public market now exists
for any of the securities issued by the Company and that the Company has made no assurances that a
public market will ever exist for the Companys securities.
10. Brokers and Finders. The Investor has not engaged any brokers, finders or agents in
connection with the Securities, and the Company has not incurred nor will incur, directly or
indirectly, as a result of any action taken by the Investor, any liability for brokerage or
finders fees or agents commissions or any similar charges in connection with the Securities.
11. Legal Counsel. The Investor has had the opportunity to review the Warrant, the exhibits
and schedules attached thereto and the transactions contemplated by the Warrant with its own legal
counsel. The Investor is not relying on any statements or representations of the Company or its
agents for legal advice with respect to this investment or the transactions contemplated by the
Warrant.
12. Tax Advisors. The Investor has reviewed with its own tax advisors the U.S. federal, state
and local and non-U.S. tax consequences of this investment and the transactions contemplated by the
Warrant. With respect to such matters, the Investor relies solely on such advisors and not on any
statements or representations of the Company or any of its agents, written or oral. The Investor
understands that it (and not the Company) shall be responsible for its own tax liability that may
arise as a result of this investment or the transactions contemplated by the Warrant.
(signature page follows)
A-1-2
The Investor is signing this Investment Representation Statement on the date first written
above.
INVESTOR | ||
(Print name of the investor) | ||
(Signature) | ||
(Name and title of signatory, if applicable) | ||
(Street address) | ||
(City, state and ZIP) |
A-1-3
EXHIBIT B
ASSIGNMENT FORM
ASSIGNOR: |
||
COMPANY:
|
Kior, Inc. | |
WARRANT:
|
THE WARRANT TO PURCHASE SHARES OF CLASS A COMMON STOCK ISSUED ON _____________ (THE WARRANT) | |
DATE:
|
_________________________ |
(1) | Assignment. The undersigned registered holder of the Warrant (Assignor) assigns and transfers to the assignee named below (Assignee) all of the rights of Assignor under the Warrant, with respect to the number of shares set forth below: |
Name of Assignee:
|
|||
Address of Assignee:
|
|||
|
|||
Number of Shares Assigned:
|
and does irrevocably constitute and appoint ______________________ as attorney to make such transfer on the books of Kior, Inc., maintained for the purpose, with full power of substitution in the premises. | ||
(2) | Obligations of Assignee. Assignee agrees to take and hold the Warrant and any shares of stock to be issued upon exercise of the rights thereunder (and any shares issuable upon conversion thereof) (the Securities) subject to, and to be bound by, the terms and conditions set forth in the Warrant to the same extent as if Assignee were the original holder thereof. | |
(3) | Investment Intent. Assignee represents and warrants that the Securities are being acquired for investment for its own account, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof, and that Assignee has no present intention of selling, granting any participation in, or otherwise distributing the shares, nor does it have any contract, undertaking, agreement or arrangement for the same, and all representations and warranties set forth in Section 10 of the Warrant are true and correct as to Assignee as of the date hereof. | |
(4) | Investment Representation Statement. Assignee has executed, and delivers herewith, an Investment Representation Statement in a form substantially similar to the form attached to the Warrant as Exhibit A-1. |
-1-
Assignor and Assignee are signing this Assignment Form on the date first set forth above.
ASSIGNOR
|
ASSIGNEE | |
(Print name of Assignor)
|
(Print name of Assignee) | |
(Signature of Assignor)
|
(Signature of Assignee) | |
(Print name of signatory, if applicable)
|
(Print name of signatory, if applicable) | |
(Print title of signatory, if applicable)
|
(Print title of signatory, if applicable) | |
Address:
|
Address: | |
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