Exhibit 10.2
COMMON STOCK PURCHASE WARRANT
THIS SECURITY AND ANY SHARES ISSUED UPON EXERCISE OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS THE APPLICABLE SECURITY HAS BEEN REGISTERED UNDER THE ACT AND
SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND (2) AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT
THAT REGISTRATION UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.
TRIKON TECHNOLOGIES, INC.
No. WS-1 Void after
92,593 Shares of Common Stock May 23, 2005
WARRANT TO PURCHASE COMMON STOCK
This certifies that, for value received, Spinner Global Technology Fund
Ltd. (the "Holder") is entitled to subscribe for and purchase up to 92,593
shares (subject to adjustment from time to time pursuant to the provisions of
Section 5 hereof) of fully paid and nonassessable Common Stock of Trikon
Technologies, Inc., a California corporation (the "Company"), at the price
specified in Section 2 hereof, as such price may be adjusted from time to time
pursuant to Section 5 hereof (the "Warrant Price"), subject to the provisions
and upon the terms and conditions hereinafter set forth.
As used herein, the term "Common Stock" shall mean the Company's
presently authorized Common Stock, no par value, and any stock into or for which
such Common Stock may hereafter be converted or exchanged.
10. Term of Warrant.
The purchase right represented by this Warrant is exercisable, in whole
or in part, at any time during a period beginning on the date hereof, and ending
May 23, 2005.
11. Warrant Price.
The Warrant Price is $13.50 per share, subject to adjustment from time
to time pursuant to the provisions of Section 5 hereof.
12. Method of Exercise or Conversion; Payment; Issuance of New Warrant.
12.1 Exercise. Subject to Section 1 hereof, the purchase right
represented by this Warrant may be exercised by the Holder, in whole or in part,
by the surrender of this Warrant (with the notice of exercise form attached
hereto as Exhibit 1 duly executed) at the principal office of the Company and by
the payment to the Company, by cashier's check or wire transfer, of an amount
equal to the
then applicable Warrant Price per share multiplied by the number of shares then
being purchased. The Company agrees that the shares so purchased shall be deemed
to be issued to the Holder as the record owner of such shares as of the close of
business on the date on which this Warrant shall have been surrendered and
payment made for such shares as aforesaid. In the event of any exercise of this
Warrant, certificates for the shares of stock so purchased shall be delivered to
the Holder within 5 business days thereafter and, unless this Warrant has been
fully exercised or expired, a new Warrant representing the portion of the
shares, if any, with respect to which this Warrant shall not then have been
exercised, shall also be issued to the Holder within such 5 business day period.
12.2 Mandatory Exercise. In the event that the volume weighted average
Market Price of the Common Stock exceeds Twenty-One Dollars and Sixty Cents
($21.60) per share for any thirty (30) consecutive trading day period following
the date on which the warrant was first issued and the average daily trading
volume for such thirty (30) day period, as reported on NASDAQ, exceeds 200,000
shares during such 30 day period, then the Holder shall, upon written notice
from the Company, exercise this Warrant for such number of shares of Common
Stock subject hereto as the Company may specify in such notice, provided that,
as of the date of such notice and as of the date of the closing of the exercise
of this Warrant, the shares of Common Stock issuable upon exercise of this
Warrant have been registered for resale pursuant to an effective registration
statement under the Act. The payment of the Warrant Price for such shares, and
delivery of stock certificates therefor, shall occur on a date mutually
acceptable to the Company and the Holder within thirty (30) days following the
date of the Company's notice. The volume weighted average Market Price and the
average trading volume referred to in the first sentence of this subparagraph
(b) shall be adjusted in accordance with the procedures for adjusting the
Warrant Price set forth in Section 5 of this Warrant.
13. Stock Fully Paid; Reservation of Shares.
All Common Stock which 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 United States taxes, liens and charges with
respect to the issue thereof. During the period within which the rights
represented by this Warrant may be exercised, the Company shall at all times
have authorized, and reserved for the purpose of the issuance upon exercise of
the purchase rights evidenced by this Warrant, a sufficient number of shares of
its Common Stock to provide for the exercise of the rights represented by this
Warrant.
14. Adjustment of Purchase Price and Number of Shares.
The kind of securities purchasable upon the exercise of this Warrant,
the Warrant Price and the number of shares purchasable upon exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
the following events:
14.1 Reclassification, Consolidation, or Merger. In case of any
reclassification or change of outstanding securities of the class issuable upon
exercise of this Warrant (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), or in case of any consolidation or merger of the Company with
or into another corporation, other than a merger with another corporation in
which the Company is a continuing corporation and which does not result in any
reclassification or change of outstanding securities issuable upon exercise of
this Warrant, the Company, or such successor, as the case may be, shall execute
a new Warrant, providing that the Holder of this Warrant shall have the right to
exercise such new Warrant and procure upon such exercise, in lieu of each share
of Common Stock theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money and property receivable upon
such reclassification, change, consolidation, or merger by a holder of one share
of Common Stock; provided, however, that the Board of Directors of the Company
may determine that, upon the occurrence of a stockholder approved dissolution or
liquidation of the Company, this Warrant will, on such date of dissolution or
liquidation and if unexercised, in whole or in part, by the Holder, will
thereupon terminate; provided, further however, that the Company shall provide
the Holder with any and all notices of any meeting of the stockholders of the
Company held for the purpose of approving a dissolution or liquidation, which
notice shall be provided to the Holder at the same time that it is provided to
the stockholders of the Company. Any new Warrant shall provide for adjustments,
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 5. The provisions of this subparagraph (a) shall
similarly apply to successive reclassification, changes, consolidations, and
mergers.
14.2 Subdivision or Combination of Shares. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or combine
its common stock, or distribute dividends on its common stock payable in Common
Stock, the Warrant Price shall be proportionately decreased in the case of a
subdivision or increased in the case of a combination or dividend.
14.3 Adjustment of Number of Shares. Upon each adjustment in the
Warrant Price pursuant to any of subparagraphs (a) and (b) of this Section 5,
the number of shares of Common Stock purchasable hereunder shall be adjusted, to
the nearest whole share, to the product obtained by multiplying the number of
shares purchasable immediately prior to such adjustment in the Warrant Price by
a fraction, the numerator of which shall be the Warrant Price immediately prior
to such adjustment and the denominator of which shall be the Warrant Price
immediately thereafter.
15. Notice of Adjustments.
Whenever any Warrant Price shall be adjusted pursuant to Section 5
hereof, the Company shall prepare a certificate signed by its chief financial
officer setting forth, in reasonable detail, the event requiring the adjustment,
the amount of the adjustment, the method by which such adjustment was
calculated, the Warrant Price after giving effect to such adjustment and the
number of shares then purchasable upon exercise of this Warrant, and shall cause
copies of such certificate to be mailed (by first class mail, postage prepaid)
to the Holder of this Warrant at the address specified in Section 11(c) hereof,
or at such other address as may be provided to the Company in writing by the
Holder of this Warrant.
16. Fractional Shares.
No fractional shares of Common Stock will be issued in conjunction with
any exercise hereunder, but in lieu of such fractional shares the Company shall
make a cash payment therefore on the basis of the Warrant Price then in effect.
17. Compliance with Securities Act.
The Holder of this Warrant, by acceptance hereof, agrees that this
Warrant and the shares of Common Stock to be issued on exercise hereof are being
acquired for investment and that it will not offer, sell or otherwise dispose of
this Warrant or any shares of Common Stock to be issued upon exercise hereof
except under circumstances which will not result in a violation of the
Securities Act of 1933, as amended (the "Act"). This Warrant and all shares of
Common Stock issued upon exercise of this Warrant shall be stamped and imprinted
with a legend substantially in the following form, unless there is a
registration statement in effect regarding the resale by the Holder of the
shares of Common Stock issuable upon exercise of this Warrant:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF
UNLESS IT HAS BEEN REGISTERED UNDER THE ACT AND SUCH LAWS OR
(1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND (2) AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS FURNISHED TO
THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT AND
THE APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED."
18. Transfer and Exchange of Warrant.
This Warrant may be transferred or exchanged without the consent of the
Company upon the Holder providing to the Company (a) a written opinion by
independent counsel satisfactory to the Company opining that the transfer or
exchange will not violate any Federal or state securities laws, and (b) a
written agreement of the transferee agreeing to be bound by the provisions of
the last sentence of Section 2.4 and Section 8 of the Subscription Agreement.
19. Registration Rights.
The Holder shall be entitled to certain registration rights with
respect to the shares of Common Stock issuable upon exercise of this Warrant, as
set forth in the Common Stock Subscription Agreement by and among the Company,
the Holder and certain additional investors in the Company (the "Subscription
Agreement"), the Closing of which occurred as of even date herewith.
20. Miscellaneous.
20.1 No Rights as Shareholder. The Holder of this Warrant shall not be
entitled to vote or receive dividends or be deemed the Holder of Common Stock or
any other securities of the Company that may at any time be issuable on the
exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders 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 otherwise until the
Warrant shall have been exercised and the shares purchasable upon the exercise
hereof shall have become deliverable, as provided herein.
20.2 Replacement. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction, or mutilation of this Warrant and, in
the case of mutilation, on surrender and cancellation of this Warrant, the
Company, at the Holder's expense, will execute and deliver, in lieu of this
Warrant, a new Warrant of like tenor.
20.3 Notice. Any notice given to either party under this Warrant shall
be in writing, and any notice hereunder shall be deemed to have been given upon
the earlier of delivery thereof by hand delivery, by courier, or by standard
form of telecommunication or three (3) business days after the mailing thereof
in the U.S. mail if sent registered mail with postage prepaid, addressed to the
Company at its principal executive offices and to the Holder at its address set
forth in the Company's books and records or at such other address as the Holder
may have provided to the Company in writing.
20.4 GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED AND CONSTRUED UNDER
THE LAWS OF THE STATE OF NEW YORK.
This Warrant is executed as of this 23rd day of May, 2001.
TRIKON TECHNOLOGIES, INC.
By: /s/ Nigel Wheeler
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Name: Nigel Wheeler
Title: Chief Executive Officer
EXHIBIT 1
NOTICE OF EXERCISE
TO: TRIKON TECHNOLOGIES, INC.
1. The undersigned hereby elects to purchase __________ shares of
Common Stock of TRIKON TECHNOLOGIES, INC. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
2. Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
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(Name)
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(Address)
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3. The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares.
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Signature