EXHIBIT 4.6
The following form of Common Stock Purchase Warrant was issued
by the Registrant in connection with the Stock Purchase Agreement relating to
the sale of the Registrant's Series G Preferred Stock (Exhibit 10.23 hereto) to
the following parties in the following amounts:
Shares to
Name Purchase Upon Exercise
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[ to come ]
THE SECURITIES EVIDENCED BY THIS WARRANT OR ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE BLUE SKY LAWS AND ARE SUBJECT TO CERTAIN INVESTMENT REPRESENTATIONS.
THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE OR TRANSFERRED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH APPLICABLE BLUE
SKY LAWS OR AN EXEMPTION THEREFROM.
Warrant No. 97-___ June 27, 1997
COMMON STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, __________________________,
and permitted assigns ("Warrantholder"), is entitled to purchase from Trikon
Technologies, Inc., a California corporation (the "Company"), on the terms and
conditions contained herein, ___________________________________ (______) shares
of the Company's Common Stock, no par value per share (the "Common Stock"), at a
price of Eight Dollars ($8.00) per share (the "Warrant Price"). This Warrant is
issued pursuant to that certain Stock Purchase Agreement dated as of June 27,
1997 among the Company, Warrantholder and the other Investors parties thereto
(the "Stock Purchase Agreement").
1. Exercisability of Warrant. This Warrant shall be immediately
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exercisable for all or any portion of the shares of Common Stock set forth
above.
2. Method of Exercise; Payment; Issuance of New Warrant; Transfer
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and Exchange. This Warrant may be exercised by Warrantholder, in whole or in
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part, by the surrender of this Warrant, properly endorsed, at the principal
office of the Company at 9255 Deering Avenue, Chatsworth, California 91311, and
by (a) the payment to the Company of the then applicable Warrant Price of the
Common Stock being purchased, which Warrant Price may be paid, in whole or in
part, by the delivery of cash or check in an amount equal to such Warrant Price,
and (b) delivery to the Company of a customary investment letter executed by
Warrantholder, confirming that the shares of Common Stock being purchased are
being acquired for Warrantholder's own account and not with a view to or for
sale in connection with any distribution of such shares, acknowledging
securities law restrictions applicable to such shares, and agreeing that
certificates evidencing such shares shall bear a legend accordingly restricting
the transfer of such shares. In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of Common Stock so
purchased shall be delivered to Warrantholder within a reasonable time after the
rights represented by this Warrant shall have been so exercised, and unless this
Warrant has expired, a new Warrant representing the number of shares of Common
Stock, if any, with respect to which this Warrant shall not then have been
exercised or that may become exercisable after such date, shall also be issued
to Warrantholder within such time. In lieu of exercising this Warrant for a
specified number of shares of Common Stock (the "Exercised Shares") and
paying the aggregate Warrant Price therefor (the "Exercise Price"),
Warrantholder may elect, at any time prior to the expiration of this Warrant, to
receive a number of shares of Common Stock equal to the number of Exercised
Shares minus that number of shares of Common Stock having an aggregate Fair
Market Value equal to the Exercise Price. Following such election, the number of
shares of Common Stock covered by this Warrant shall be deemed automatically
reduced by the number of Exercised Shares. For purposes of this Warrant, the
"Fair Market Value" shall mean the closing sales prices of Common Stock quoted
on the NASDAQ National Market or, if then traded on a national securities
exchange, the closing prices of Common Stock on the principal national
securities exchange on which listed or, if quoted on the NASDAQ over-the-counter
system, the average of the mean of the closing bid and asked prices of Common
Stock quoted on such system, in any such case on each of the ten (10) trading
days immediately preceding the date of such exercise.
3. Stock Fully Paid; Reservation of Shares. The Company covenants
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and agrees that all shares of Common Stock that may be issued upon the exercise
of the rights represented by this Warrant will, upon issuance, be fully paid and
nonassessable and free from all liens. The Company covenants and agrees that,
during the period within which the rights represented by this Warrant may be
exercised, it shall reserve for the purpose of the issuance upon exercise of the
purchase rights evidenced by this Warrant, at least the maximum number of shares
of Common Stock as are issuable upon the exercise of the rights represented by
this Warrant.
4. Restrictions on Transferability of Securities; Compliance with
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Securities Act.
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(a) Restrictions on Transferability. This Warrant and the shares of
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Common Stock issuable hereunder shall not be transferable except upon the
conditions specified in this Section 4, which conditions are intended to insure
compliance with the provisions of the Securities Act of 1933, as amended (the
"Securities Act"). Each holder of this Warrant or the Common Stock issuable
hereunder will cause any proposed transferee of the Warrant or such Common Stock
to agree to take and hold such securities subject to the provisions and upon the
conditions specified in this Section.
(b) Restrictive Legend. Each certificate representing (i) this
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Warrant, (ii) the shares of Common Stock issued upon exercise of the Warrant and
(iii) any other securities issued in respect of such shares of Common Stock upon
any stock split, stock dividend or similar event (collectively, the "Restricted
Securities"), shall (unless otherwise permitted by the provisions of Section
4(c) below or unless such securities have been registered under the Securities
Act) be imprinted with the following legend, in addition to any legend required
under applicable state securities laws:
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THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR APPLICABLE BLUE SKY LAWS, AND ARE
SUBJECT TO CERTAIN INVESTMENT REPRESENTATIONS. THESE SECURITIES MAY
NOT BE SOLD, OFFERED FOR SALE OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION UNDER THE ACT AND SUCH APPLICABLE BLUE SKY LAWS
OR AN EXEMPTION THEREFROM.
Upon request of a holder of a certificate with such legend imprinted
thereon, the Company shall remove the foregoing legend therefrom or, if
appropriate, issue to such holder a new certificate therefor free of any
transfer legend, if, with such request, the Company shall have received either
the opinion referred to in Section 4(c)(i) or the "no-action" letter referred to
in Section 4(c)(ii) to the effect that any transfer by such holder of the
securities evidenced by such certificate will be exempt from the registration
and/or qualification requirements of, and that such legend is not required in
order to establish compliance, with the Securities Act, and if applicable, any
state securities laws under which transfer restrictions on such securities had
been previously imposed.
(c) Notice of Proposed Transfers. The holder of each certificate
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representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4(c). Prior to any proposed
transfer of any Restricted Securities, the holder thereof shall give written
notice to the Company of such holder's intention to effect such transfer. Each
such notice shall describe the manner and circumstances of the proposed transfer
in sufficient detail, and shall be accompanied by either (i) an unqualified
written legal opinion addressed to the Company from counsel who shall be
reasonably satisfactory to the Company, which opinion shall be reasonably
satisfactory in form and substance to the Company's legal counsel, to the effect
that the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act and any applicable state securities laws,
or (ii) a "no-action" letter from the Securities and Exchange Commission (and
any necessary state securities administrator) to the effect that the proposed
transfer of such securities without registration will not result in a
recommendation by the staff of the Commission (or such administrators) that
action be taken with respect thereto, whereupon the holder of such Restricted
Securities shall be entitled to transfer such Restricted Securities in
accordance with the terms of the notice delivered by the holder to the Company.
Each certificate evidencing the Restricted Securities transferred as above
provided shall bear the appropriate restrictive legend set forth in Section 4(b)
above, unless the legal opinion or "no-action" letter, as applicable, states
that the restrictive legend may be removed upon consummation of the proposed
transfer.
5. Adjustment of Purchase Price and Number of Shares of Common
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Stock. The number and kind of securities purchasable upon the exercise of this
Warrant and
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the Warrant Price shall be subject to adjustment from time to time upon the
happening of certain events, as follows:
(a) Consolidation, Merger, Reorganization, Etc. If the Company at any
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time while this Warrant remains outstanding and unexpired shall consolidate with
or merge into any other corporation, reorganize, reclassify, or in any manner
change the securities then purchasable upon the exercise of this Warrant, then
upon consummation thereof this Warrant shall thereafter represent the right of
Warrantholder to receive, to the extent this Warrant is exercisable as provided
above in Section 1, in lieu of shares of Common Stock, the cash or such number
of securities to which Warrantholder would have been entitled upon consummation
thereof if Warrantholder had exercised this Warrant immediately prior thereto.
Upon any such event, an appropriate adjustment shall also be made to the Warrant
Price, if necessary in the good faith judgment of the Board of Directors of the
Company, to preserve the economic benefit intended to be conferred upon
Warrantholder in accordance with the terms hereof.
(b) Subdivision or Combination of Shares; Dividends and Distribution
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of Common Stock. If the Company at any time shall subdivide or combine its
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Common Stock, or take a record of the holders of its Common Stock for the
purpose of entitling them to receive without payment a dividend payable in, or
other distribution of, Common Stock or other securities, then the number of
shares of Common Stock purchasable hereunder shall be adjusted to that number
determined by multiplying the number of shares purchasable upon the exercise of
this Warrant immediately prior to such adjustment by a fraction (i) the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately after such subdivision, combination, dividend or
distribution, and (ii) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately prior to such subdivision,
combination, dividend or distribution. Additionally, the Warrant Price shall be
adjusted to that price determined by multiplying the Warrant Price in effect
immediately prior to such subdivision, combination, dividend or distribution by
a fraction (x) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such subdivision, combination,
dividend or distribution, and (y) the denominator of which shall be the total
number of shares of Common Stock outstanding immediately after such subdivision,
combination, dividend or distribution.
(c) Weighted Average Price Protection. Reference is made to the
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Certificate of Determination of the Company filed with the California Secretary
of State on June 5, 1997, as amended by the Amendment to Certificate of
Determination of the Company filed with the California Secretary of State on
June 20, 1997, copies of which are attached collectively to the Stock Purchase
Agreement as Exhibit A (collectively, the "Certificate of Determination").
Capitalized terms used in this paragraph shall, unless otherwise specifically
defined in this Warrant, have the meanings ascribed to them in the Certificate
of Determination. If, after the issuance of this Warrant, the Company shall at
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any time or from time to time issue (or be deemed under Section 5 of the
resolutions set forth in the Certificate of Determination to have issued) any
Additional Shares of Common Stock (excluding the Series G Preferred Stock issued
pursuant to the Stock Purchase Agreement) at a price less than the Warrant Price
and such issuance or deemed issuance would result in an adjustment to the
Conversion Price of the Series G Preferred Stock, pursuant to Sections 5(g) or
5(h) of the Certificate of Determination, assuming hypothetically solely for
purposes of this paragraph that the initial Conversion Price of the Series G
Preferred Stock is $8.00 (which the parties acknowledge is not the case), the
Warrant Price shall forthwith be adjusted (in each case of any such issuance or
deemed issuance) to the adjusted Conversion Price which would have been
applicable to the Series G Preferred Stock under such Sections 5(g) or 5(h) by
reason of such issuance or deemed issuance if the Conversion Price of the Series
G Preferred Stock had been initially $8.00.
(d) Statement Regarding Adjustments. When any adjustment is required
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to be made in the Warrant Price, either initially or as further adjusted
hereunder, the Company shall forthwith determine the adjusted number of shares
of Common Stock purchasable hereunder and the new Warrant Price and shall (i)
prepare and retain on file a statement describing in reasonable detail the
method used in arriving at the adjusted number of shares of Common Stock
purchasable hereunder and the new Warrant Price; and (ii) cause a copy of such
statement to be mailed to Warrantholder as of a date within ten (10) days after
the date when the circumstances giving rise to the adjustment occurred.
6. Fractional Shares. No fractional shares of Common Stock will be
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issued in connection with any exercise hereunder but in lieu of such fractional
shares, the Company shall make a cash payment therefor upon the basis of the
fair market value of the Common Stock on the date of such exercise.
7. Registration Rights. The Warrant Shares shall have registration
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rights provided for in the Stock Purchase Agreement.
8. Governing Law. This Warrant shall be construed and enforced in
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accordance with, and the rights of the parties shall be governed by, the laws of
the State of California.
9. Expiration of Warrant. This Warrant shall terminate and expire
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and shall no longer be exercisable on or after June 28, 2000.
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IN WITNESS WHEREOF, this Warrant has been duly executed and issued by
a duly authorized officer of the Company as of this ____ day of June, 1997.
TRIKON TECHNOLOGIES, INC.,
a California corporation
By: ______________________________________
Gregor A. Campbell
Chief Executive Officer,
Vice President and Assistant Secretary
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