Contract

Exhibit 4.5
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
     
Warrant No. W-017   Number of Shares: 3,100,753     
Date of Issuance: December 29, 2009    
Common Stock Purchase Warrant
     Fallbrook Technologies Inc. (the “Company”), for value received, hereby certifies that Gary E. Jacobs and Jerri-Ann Jacobs, Trustees of the Jacobs Family Trust dated November 9, 1999, or its registered assigns (the “Registered Holder”), is entitled, subject to the terms set forth below, to purchase from the Company, at any time after the date hereof and on or before the Expiration Date (as defined in Section 4 below), up to 3,100,753 shares (as adjusted from time to time pursuant to the provisions of this Warrant) of Common Stock of the Company, at a purchase price of $0.3992 per share. The shares purchasable upon exercise of this Warrant and the purchase price per share, as adjusted from time to time pursuant to the provisions of this Warrant, are sometimes hereinafter referred to as the “Warrant Stock” and the “Purchase Price,” respectively.
     1. Exercise.
          (a) Manner of Exercise. This Warrant may be exercised by the Registered Holder, in whole or in part, by surrendering this Warrant, with the purchase/exercise form appended hereto as Exhibit A duly executed by such Registered Holder or by such Registered Holder’s duly authorized attorney, at the principal office of the Company, or at such other office or agency as the Company may designate, accompanied by payment in full of the Purchase Price payable in respect of the number of shares of Warrant Stock purchased upon such exercise. The Purchase Price may be paid by cash, check, wire transfer or by the surrender of promissory notes or other instruments representing indebtedness of the Company to the Registered Holder.
          (b) Effective Time of Exercise. 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 Section 1(a) above. At such time, the person or persons in whose name or names any certificates for Warrant Stock shall be issuable upon such exercise as provided in Section 1(d) below shall be deemed to have become the holder or holders of record of the Warrant Stock represented by such certificates.

 


 

          (c) Net Issue Exercise.
                    (i) In lieu of exercising this Warrant in the manner provided above in Section 1(a), the Registered Holder may elect to receive shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with notice of such election on the purchase/exercise form appended hereto as Exhibit A duly executed by such Registered Holder or such Registered Holder’s duly authorized attorney, in which event the Company shall issue to holder a number of shares of Common Stock computed using the following formula:
(FORMULA)
         
Where
  X =   The number of shares of Common Stock to be issued to the Registered Holder.
 
       
 
  Y =   The number of shares of Common Stock purchasable under this Warrant (at the date of such calculation).
 
       
 
  A =   The fair market value of one share of Common Stock (at the date of such calculation).
 
       
 
  B =   The Purchase Price (as adjusted to the date of such calculation).
                  (ii) For purposes of this Section 1(c), the fair market value of one share of Common Stock on the date of calculation shall mean:
                    (A) if the exercise is in connection with an initial public offering of the Company’s Common Stock, and if the Company’s Registration Statement relating to such public offering has been declared effective by the Securities and Exchange Commission, then the fair market value of Common Stock shall be the initial “Price to Public” per share specified in the final prospectus with respect to the offering;
                    (B) if this Warrant is exercised after, and not in connection with, the Company’s initial public offering, and if the Company’s Common Stock is traded on a securities exchange or actively traded over-the-counter:
                         (1) if the Company’s Common Stock is traded on a securities exchange, the fair market value shall be deemed to be the average of the closing prices over a thirty (30) day period ending three days before date of calculation; or
                         (2) if the Company’s Common Stock is actively traded over-the-counter, the fair market value shall be deemed to be the average of the closing bid or sales price (whichever is applicable) over the thirty (30) day period ending three days before the date of calculation; or

 


 

                    (C) if neither (A) nor (B) is applicable, the fair market value shall be at the highest price per share which the Company could obtain on the date of calculation from a willing buyer (not a current employee or director) for shares of Common Stock sold by the Company, from authorized but unissued shares, as determined in good faith by the Board of Directors, unless the Company is at such time subject to an acquisition as described in Section 5(b) below, in which case the fair market value per share of Common Stock shall be deemed to be the value of the consideration per share received by the holders of such stock pursuant to such acquisition.
          (d) Delivery to Holder. As soon as practicable after the exercise of this Warrant in whole or in part, 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 as such Holder (upon payment by such Holder of any applicable transfer taxes) may direct:
               (i) a certificate or certificates for the number of shares of Warrant Stock to which such Registered Holder shall be entitled, and
               (ii) in case such exercise is in part only, 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 of Warrant Stock 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 Section 1(a) above.
     2. Adjustments.
          (a) Stock Splits and Dividends. If outstanding shares of the Company’s Common Stock shall be subdivided into a greater number of shares or a dividend in Common Stock shall be paid in respect of Common Stock, 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 of Common Stock shall be combined into a smaller number of 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 of Warrant Stock 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) Reclassification, Etc. In case of any reclassification or change of the outstanding securities of the Company or of any reorganization of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) or any similar corporate reorganization on or after the date hereof, then and in each such case the holder of this Warrant, upon the exercise hereof at any time after the consummation of such reclassification, change, reorganization, merger or conveyance, shall be entitled to

 


 

receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, the stock or other securities or property to which such holder would have been entitled upon such consummation if such holder had exercised this Warrant immediately prior thereto, all subject to further adjustment as provided in Section 2(a); and in each such case, the terms of this Section 2 shall be applicable to the shares of stock or other securities properly receivable upon the exercise of this Warrant after such consummation.
          (c) Adjustment Certificate. When any adjustment is required to be made in the Warrant Stock or the Purchase Price pursuant to this Section 2, the Company shall promptly mail to the Registered Holder a certificate setting forth (i) a brief statement of the facts requiring such adjustment, (ii) the Purchase Price after such adjustment and (iii) the kind and amount of stock or other securities or property into which this Warrant shall be exercisable after such adjustment.
     3. Transfers.
          (a) Unregistered Security. Each holder of this Warrant acknowledges that this Warrant and the Warrant Stock have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this Warrant or any Warrant Stock issued upon its exercise in the absence of (i) an effective registration statement under the Act as to this Warrant or such Warrant Stock and registration or qualification of this Warrant or such Warrant Stock under any applicable U.S. federal or state securities law then in effect or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate or other instrument for Warrant Stock issued upon the exercise of this Warrant shall bear a legend substantially to the foregoing effect.
          (b) Transferability. Subject to the provisions of Section 3(a) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of the Warrant with a properly executed assignment (in the form of Exhibit B hereto) at the principal office of the Company provided, however, that this Warrant may not be transferred in part unless the transferee acquires the right to purchase all of the shares of Warrant Stock hereunder.
          (c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. 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 this Warrant is properly assigned in blank, the Company may (but shall not be required to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
     4. Termination. This Warrant (and the right to purchase securities upon exercise hereof) shall terminate upon the earliest to occur of the following (the “Expiration Date”): (a) December 29, 2017, or (b) the sale, conveyance or disposal of all or substantially all of the Company’s property or business or the Company’s merger with or into or consolidation with any

 


 

other corporation (other than a wholly-owned subsidiary of the Company) or any other transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of, provided that this Section 4(b) shall not apply to a merger effected exclusively for the purpose of changing the domicile of the Company or to an equity financing in which the Company is the surviving corporation.
     5. Notices of Certain Transactions. In case:
          (a) the Company shall take a record of the holders of its Common Stock (or other stock or 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 stock of any class or any other securities, or to receive any other right, to subscribe for or purchase any shares of stock of any class or any other securities, or to receive any other right, or
          (b) of any capital reorganization of the Company, any reclassification of the capital stock of the Company, any consolidation or merger 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 or right, 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 Common Stock (or such other stock or securities at the time deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up) are to be determined. 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.
     6. “Market Stand-Off” Agreement. The Registered Holder hereby agrees that it will not, without the prior written consent of the managing underwriters, during the period commencing on the closing of an IPO and ending on the date specified by the Company and the managing underwriters (such period not to exceed one hundred eighty (180) days, unless requested by the Company or an underwriter to accommodate regulatory restrictions on (a) the publication or other distribution of research reports and (b) analyst recommendations and opinions, including, but not limited to, the restrictions contained in FINRA Rule 271 1(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto), (i) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right, or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or

 


 

exercisable or exchangeable for Common Stock (whether such shares or any such securities are then owned by the Registered Holder or are thereafter acquired) or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash, or otherwise.
     The foregoing provisions of this Section 6 shall not apply to the sale of any shares to an underwriter pursuant to an underwriting agreement, and shall be applicable to the Registered Holder only if all officers, directors and stockholders individually owning more than one percent (1%) of the Company’s outstanding Common Stock are subject to the same restrictions. The underwriters in connection with the offering are intended third-party beneficiaries of this Section 6 and shall have the right, power, and authority to enforce the provisions hereof as though they were a party hereto. The Registered Holder further agrees to execute such agreements as may be reasonably requested by the managing underwriters in the offering that are consistent with this Section 6 or that are necessary to give further effect thereto. The Company shall use commercially reasonable efforts to obtain the consent of the underwriter(s) to decrease the restrictions set forth in this Section 6 by providing for periodic releases of portions of the securities restricted pursuant to this Section 6 and to have the restrictions terminate if the trading price of the Common Stock after the effective date of the IPO exceeds a certain threshold for a certain time period. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the shares or securities held by the Registered Holder (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period.
     7. Representations and Warranties. The Registered Holder hereby represents and warrants to the Company as follows:
          (a) Purchase Entirely for Own Account. The Warrant and the Warrant Stock will be acquired by the Registered Holder for investment for the Registered Holder’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Registered Holder has no present intention of selling, granting any participation in, or otherwise distributing the same.
          (b) Disclosure of Information. The Registered Holder has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management and has had an opportunity to review the Company’s facilities.
          (c) Restricted Securities. The Registered Holder understands that the Warrant Stock have not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Registered Holder’s representations as expressed herein. The Registered Holder understands that the Warrant Stock will be “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Registered Holder must hold the Warrant Stock indefinitely unless they are registered with the Securities and Exchange Commission and

 


 

qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Registered Holder acknowledges that the Company has no obligation to register or qualify the Warrant Stock for resale except as set forth in the Investor Rights Agreement. The Registered Holder further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Warrant Stock, and on requirements relating to the Company which are outside of the Registered Holder’s control, and which the Company is under no obligation and may not be able to satisfy.
          (d) No Public Market. The Registered Holder understands that no public market now exists for the Warrant Stock, and that the Company has made no assurances that a public market will ever exist for the Warrant Stock.
          (e) Accredited Investor. The Registered Holder is an accredited investor as defined in Rule 501 (a) of Regulation D promulgated under the Securities Act.
     8. Right of First Refusal on Warrant Stock. The Registered Holder shall not sell, assign, pledge or in any manner transfer any shares of Warrant Stock or any right or interest therein, whether voluntarily or by operation of law, or by gift or otherwise, except by a transfer which meets the requirements hereinafter set forth in this Section 8.
          (a) If the Registered Holder receives from anyone a bona fide offer acceptable to the Registered Holder to purchase any shares of Warrant Stock, then the Registered Holder shall first give written notice thereof to the Company. The notice shall state the name of the proposed transferee and state the number of shares of Warrant Stock to be transferred, the price per share and all other terms and conditions of the offer.
          (b) For ten (10) days following receipt of such notice, the Company shall have the option to purchase all (but not less than all) the shares of Warrant Stock specified in the notice at the price and upon the terms set forth in such bona fide offer. In the event the Company elects to purchase all the shares of Warrant Stock, it shall give written notice to the Registered Holder of its election and settlement for said shares shall be made as provided below in Section 8(c).
          (c) In the event the Company elects to acquire the shares of Warrant Stock as specified in the Registered Holder’s notice, the Secretary of the Company shall so notify the Registered Holder and settlement thereof shall be made in cash within fifteen (15) days after the Company receives the Registered Holder’s notice; provided that if the terms of payment set forth in the Registered Holder’s notice were other than cash against delivery, the Company shall pay for the shares of Warrant Stock on the same terms and conditions set forth in the Registered Holder’s notice.
          (d) In the event the Company does not elect to acquire all of the shares of Warrant Stock specified in the Registered Holder’s notice, the Registered Holder may, within a sixty (60) day period following the expiration of the rights of the Company in this Section 8, sell the shares of Warrant Stock specified in the Registered Holder’s notice which were not acquired

 


 

by the Company in accordance with the provisions of Section 8(c), provided that such sale shall not be on terms and conditions more favorable to the purchaser than those contained in the bona fide offer set forth in the Registered Holder’s notice to the Company.
          (e) Anything to the contrary contained in this Section 8 notwithstanding, the following transactions shall be exempt from the provisions of this Section 8:
               (i) the Registered Holder’s transfer of any or all shares of Warrant Stock either during the Registered Holder’s lifetime or on death by will or intestacy to the Registered Holder’s Immediate Family. “Immediate Family” as used herein shall mean spouse, lineal descendant, father, mother, brother, or sister of the Registered Holder making such transfer and shall include any trust established primarily for the benefit of the Registered Holder or his Immediate Family.
               (ii) the Registered Holder’s bona fide pledge or mortgage of any shares of Warrant Stock with a commercial lending institution.
               (iii) the Registered Holder’s transfer of any or all of the shares of Warrant Stock to the Company.
               (iv) the Registered Holder’s transfer of any or all of the shares of Warrant Stock to an affiliate thereof or pursuant to and in accordance with the terms of any merger, consolidation, or reclassification of shares or capital reorganization of the Registered Holder.
               (v) if the Registered Holder is corporation, the Registered Holder’s transfer of any or all of the shares of Warrant Stock to any or all of its stockholders.
               (vi) if the Registered Holder is a limited or general partnership, the Registered Holder’s transfer of any or all of the shares of Warrant Stock to any or all of its partners or retired partners, or to any such partner’s or retired partner’s estate.
          In any such case, the transferee, assignee or other recipient shall receive and hold such shares of Warrant Stock subject to the provisions of this Section 8, and there shall be no further transfer of such shares of Warrant Stock except in accordance with this Section 8.
          (f) Any sale or transfer, or purported sale or transfer, of shares of Warrant Stock shall be null and void unless the terms, conditions, and provisions of this Section 8 are strictly observed and followed.
          (h) The foregoing right of first refusal shall automatically terminate upon an IPO.
          (i) The Company shall place an appropriate legend referring to the provisions of this Section 8 restricting the transfer of shares of Warrant Stock.

 


 

     9. Reservation of Stock. The Company will at all times reserve and keep available, solely for the issuance and delivery upon the exercise of this Warrant, such shares of Warrant Stock and other stock, securities and property, as from time to time shall be issuable upon the exercise of this Warrant.
     10. Exchange of Warrants. Upon the surrender by the Registered Holder of any Warrant or Warrants, properly endorsed, to the Company at the principal office of the Company, the Company will, subject to the provisions of Section 3 hereof, issue and deliver to or upon the order of such Holder, at the Company’s expense, a new Warrant or Warrants of like tenor, in the name of such Registered Holder or as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct, calling in the aggregate on the face or faces thereof for the number of shares of Common Stock called for on the face or faces of the Warrant or Warrants so surrendered.
     11. 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.
     12. Notices. Any notice required or permitted by this Warrant shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or forty-eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, addressed (a) if to the Registered Holder, to the address of the Registered Holder most recently furnished in writing to the Company and (b) if to the Company, at 9444 Waples St., Suite 410, San Diego, CA 92121 or such other address provided by written notice to the Registered Holder.
     13. No Rights as Stockholder. Until the exercise 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.
     14. No Fractional Shares. No fractional shares of Common Stock will be issued in connection with any exercise hereunder. In lieu of any fractional shares which would otherwise be issuable, the Company shall pay cash equal to the product of such fraction multiplied by the fair market value of one share of Common Stock on the date of exercise, as determined in good faith by the Company’s Board of Directors.
     15. Amendment or Waiver. Any term of this Warrant may be amended or waived only by an instrument in writing signed by the party against which enforcement of the amendment or waiver is sought.
     16. 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.

 


 

     17. Governing Law. This Warrant shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.
     The Company has caused this Common Stock Purchase Warrant to be issued as of the date first written above.
             
    FALLBROOK TECHNOLOGIES INC.    
    a Delaware corporation    
 
           
 
  By:
Name:
  /s/ William G. Klehm
 
William G. Klehm
   
 
  Title:   CEO    

 


 

EXHIBIT A
PURCHASE/EXERCISE FORM
     
To: Fallbrook Technologies, Inc.   Dated:                                                                 
     The undersigned, pursuant to the provisions set forth in the attached Common Stock Purchase Warrant, hereby irrevocably elects to (a) purchase                                            shares of the Common Stock 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) exercise such Warrant for                                            shares purchasable under the Warrant pursuant to the Net Issue Exercise provisions of Section 1(c) of such Warrant.
     The undersigned acknowledges that it has reviewed the representations and warranties contained in Section 7 of the Warrant and by its signature below hereby makes such representations and warranties to the Company.
     The undersigned further acknowledges that it has reviewed the market standoff provisions set forth in Section 6 of the Warrant and the right of first refusal provisions set forth in Section 8 of the Warrant and hereby confirms its agreement to be bound by such provisions.
         
 
 
Signature:
   
   
 
   
 
  Name (print):    
 
 
 
   
 
  Title (if applic.)    
 
 
 
   
 
  Company (if applic.):    
 
 
 
   

 


 

EXHIBIT B
ASSIGNMENT FORM
     FOR VALUE RECEIVED,                                                              hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant with respect to the number of shares of Common Stock covered thereby set forth below, to:
         
Name of Assignee   Address/Fax Number   No. of Shares
         
                     
Dated:
          Signature:        
 
                   
 
                   
 
                   
 
                   
 
                   
 
          Witness: