exv4w10





Exhibit
4.10



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-011

	 	Number of Shares: 190,506
	Date of Issuance: November 13, 2009
	 	 






FALLBROOK TECHNOLOGIES INC.




Common Stock Purchase Warrant



     Fallbrook Technologies Inc. (the “Company”), for value received, hereby certifies that Allen
Jay St. Clair, 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 190,506 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 l(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:







	 	 	 
	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 The Nasdaq Stock Market or actively traded over-the-counter:



                         (1) if the Company’s Common Stock is traded on a
securities exchange or The Nasdaq Stock Market, 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 at least 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) November 13, 2016, (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, or (c) the closing of a firm
commitment underwritten public offering pursuant to a registration statement under the Securities
Act.





	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
effective date of a registration statement relating to an initial public offering (“IPO”) of the
Company’s Common Stock (the “Common Stock”) 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 2711(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. Registration Rights. The Registered Holder shall be entitled to
“piggyback” registration rights with respect to the Warrant Stock equivalent to those
rights set forth in Section 2.2 of that certain Amended and Restated Investors Rights Agreement
dated December 18, 2008 by and among the Company and the stockholders of the Company signatory
thereto.



     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.



[Signature page follows]




 









 





     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:  	/s/ William G. Klehm, III 
 	 
	 	 	William G. Klehm, III 	 
	 	 	CEO, Chairman 	 
	 



[Signature Page to Common Stock Purchase Warrant]





 









 








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 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: