Exhibit 4.7
THIS WARRANT AND THE SECURITIES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT AND STATE SECURITIES LAW OR
PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
AMENDED AND RESTATED
WARRANT TO PURCHASE PREFERRED SHARES
Corporation: Kanbay International, Inc., a Delaware corporation
Number of Shares: 25,000
Class of Stock: Series A-1 Convertible Preferred
Initial Exercise Price: $6.25 per Preferred Stock
Issue Date: April 19, 2000
Expiration Date: April 18, 2007
RECITALS
A. On April 19, 2000, a Warrant to Purchase Preferred Units was issued
by Kanbay, LLC, a Delaware limited liability company, in favor of Silicon Valley
Bank, a California-chartered institution (the "Holder"), for the purchase of
25,000 Series A Convertible Preferred Units of Kanbay, LLC at the Initial
Exercise Price of $6.25 per Preferred Unit (the "Original Warrant"). Pursuant to
paragraph 2.2 of the Original Warrant, Kanbay, LLC was entitled to convert from
a limited liability company to a Delaware corporation (the "Conversion");
B. On August 24, 2000, pursuant to the Conversion and in accordance
with terms of the Original Warrant, Kanbay International, Inc., a Delaware
corporation and successor to Kanbay, LLC, issued in favor of the Holder, as a
replacement for and in lieu of the Original Warrant, a warrant for the purchase
of 25,000 shares of Series A Convertible Preferred Stock of Kanbay
International, Inc. at the Initial Exercise Price of $6.25 per share (the
"Conversion Warrant") as a replacement for and in lieu of the Original Warrant;
C. In connection with transactions contemplated by that certain
Subscription Agreement by and between Kanbay International, Inc. and MSIT
Holdings, Inc., Kanbay International, Inc. amended its Certificate of
Incorporation (the "Amended and Restated Certificate of Incorporation")
effective on August 31, 2000, to provide for, among other things, the
reclassification of shares of its Series A Convertible Preferred Stock (the
"Original Series A Preferred Stock") to shares of Series A-1 Convertible
Preferred Stock (the "New Series A-1 Preferred Stock") (the "Reclassification");
and
D. In accordance with the terms of the Conversion Warrant, Kanbay
International, Inc. is issuing as a replacement for and in lieu of the
replacement Warrant this Amended and Restated Warrant in favor of the Holder for
the purchase of 25,000 shares of its New Series A-1 Preferred Stock (the
"Replacement Warrant"), such Replacement Warrant relating back to the Original
issue date of April 19, 2000.
NOW, THEREFORE, in consideration of Silicon Valley Bank continuing its
loan to Kanbay International, Inc., the parties hereby agree as follows:
THIS WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for
other good and valuable consideration, SILICON VALLEY BANK is entitled to
purchase the number of fully paid and nonassessable shares of Series A-1
Convertible Preferred Stock (the "Preferred Shares") of Kanbay International,
Inc., a Delaware corporation (the "Company"), at the initial exercise price per
Preferred Share (the "Warrant Price"), all as set forth above and as adjusted
pursuant to Article 2 of this Warrant, subject to the provisions and upon the
terms and conditions set forth in this Warrant.
ARTICLE 1
EXERCISE
1.1 METHOD OF EXERCISE. Holder may exercise this Warrant by
delivering a duly executed Notice of Exercise in substantially the form attached
as Appendix 1 to the principal office of the Company. Unless Holder is
exercising the Conversion right set forth in Section 1.2, Holder shall also
deliver to the Company a check for the aggregate Warrant Price for the Preferred
Shares being purchased. Upon exercise of this Warrant, Holder shall agree to
become a party to the Company's Second Amended and Restated Stockholders'
Agreement (the "Stockholders' Agreement"), and shall execute such other
documents that Company may reasonably require for Holder to become a stockholder
of the Company.
1.2 CONVERSION RIGHT. In lieu of exercising this Warrant as
specified in Section 1.1, Holder may from time to time convert this Warrant, in
whole or in part, into a number of Preferred Shares determined by dividing (a)
the aggregate fair market value of the Preferred Shares or other securities
otherwise issuable upon exercise of this Warrant minus the aggregate Warrant
Price of such Preferred Shares by (b) the fair market value of one Preferred
Share. The fair market value of the Preferred Shares shall be determined
pursuant to Section 1.3.
1.3 FAIR MARKET VALUE. If the Preferred Shares are traded in a
public market, the fair market value of the Preferred Shares shall be the
closing price of the Preferred Shares (or the closing price of the Company's
common shares into which the Preferred Shares are convertible) reported for the
business day immediately before Holder delivers its Notice of Exercise to the
Company. If the Preferred Shares are not traded in a public market, the Board of
Directors of the Company shall determine fair market value in their reasonable
good faith judgment. The foregoing notwithstanding, if Holder advises the
Members in writing that Holder disagrees with such determination, then the
Company and Holder shall promptly agree upon a reputable investment banking firm
to undertake such valuation. If the valuation of such investment banking firm is
more than five percent (5%) greater than that determined by the Board of
Directors, then all fees and expenses of such investment banking firm shall be
paid by the Company. In all other circumstances, such fees and expenses shall be
paid by Holder.
1.4 DELIVERY OF CERTIFICATE AND NEW WARRANT. Promptly after Holder
exercises or converts this Warrant, the Company shall deliver to Holder
certificates for the Preferred Shares acquired and, if this Warrant has not been
fully exercised or converted and has not expired, a new Warrant representing the
Preferred Shares not so acquired.
1.5 REPLACEMENT OF WARRANTS. On 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 amount to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor.
1.6 ASSUMPTION UPON SALE, MERGER, OR CONSOLIDATION OF THE COMPANY.
1.6.1. "ACQUISITION". For the purpose of this Warrant,
"Acquisition" means any sale, license, or other disposition of all or
substantially all of the assets of the Company, or any reorganization,
consolidation, or merger of the Company where the holders of the Company's
securities before the transaction beneficially own less than 50% of the
outstanding voting securities of the surviving entity after the transaction.
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1.6.2. ASSUMPTION OF WARRANT. Upon the closing of any
Acquisition the successor entity shall assume the obligations of this Warrant,
and this Warrant shall be exercisable for the same securities, cash, and
property as would be payable for the Preferred Shares issuable upon exercise of
the unexercised portion of this Warrant as if such Preferred Shares were
outstanding on the record date for the Acquisition and subsequent closing. The
Warrant Price shall be adjusted accordingly.
1.7 RIGHTS OF HOLDER. Until such time as Holder exercises this
Warrant and becomes a stockholder of the Company as provided herein, Holder
shall not solely by reason of holding this Warrant be entitled to vote on any
matters for which a stockholder is entitled to vote or be entitled to any other
rights of a stockholder (except for rights specifically set forth in this
Warrant).
ARTICLE 2
ADJUSTMENTS TO THE PREFERRED SHARES
2.1 DISTRIBUTION OF SHARES, SPLITS, ETC. If the Company declares
or makes a distribution on its common shares (or the Preferred Shares) payable
in common shares, or other securities, subdivides the outstanding common shares
into a greater amount of common shares, or subdivides the Preferred Shares in a
transaction that increases the amount of common shares into which the Preferred
Shares are convertible, then upon exercise of this Warrant, for each Preferred
Share acquired, Holder shall receive, without cost to Holder, the total number
and kind of securities to which Holder would have been entitled had Holder owned
the Preferred Shares of record as of the date the distribution or subdivision
occurred.
2.2 RECLASSIFICATION, EXCHANGE OR SUBSTITUTION. Upon any
reclassification, exchange, substitution, or other event that results in a
change of the type, number and/or class of the securities issuable upon exercise
or conversion of this Warrant, Holder shall be entitled to receive, upon
exercise or conversion of this Warrant, the number and kind of securities and
property that Holder would have received for the Preferred Shares if this
Warrant had been exercised immediately before such reclassification, exchange,
substitution, or other event. Such an event shall include any automatic
conversion of the outstanding or issuable securities of the Company of the same
class or series as the Preferred Shares to common shares pursuant to the terms
of the Company's Amended and Restated Certificate of Incorporation, as the same
may be amended from time to time, and Stockholder's Agreement upon the closing
of a registered public offering of the Company's common shares. The Company or
its successor shall promptly issue to Holder a new Warrant for such new
securities or other property. The new Warrant shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 2 including, without limitation, adjustments to the
Warrant Price and to the number of securities or property issuable upon exercise
of the new Warrant. The provisions of this Section 2.2 shall similarly apply to
successive reclassifications, exchanges, substitutions, or other events.
2.3 ADJUSTMENTS FOR COMBINATIONS, ETC. If the outstanding shares
are combined or consolidated, by reclassification or otherwise, into a lesser
number of shares, the Warrant Price shall be proportionately increased.
2.4 ADJUSTMENTS FOR DILUTING ISSUANCES. The Warrant Price and the
number of Preferred Shares issuable upon exercise of this Warrant or the number
of common shares issuable upon conversion of the Preferred Shares, shall be
subject to adjustment, from time to time in the manner set forth in the
Company's Amended and Restated Certificate of Incorporation, as the same may be
amended from time to time. The provisions set forth for the Preferred Shares in
the Company's Amended and Restated Certificate of Incorporation, as the same may
be amended from time to time, relating to the above in effect as of the Issue
Date may not be amended, modified or waived without the prior written consent of
Holder unless such amendment, modification or waiver affects Holder in the same
manner as they affect all other shareholders of the Preferred Shares.
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2.5 NO IMPAIRMENT. The Company shall not, by amendment of its
Certificate of Incorporation or through a reorganization, transfer of assets,
consolidation, merger, dissolution, issue, or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed under this Warrant by the Company, but
shall at all times in good faith assist in carrying out of all the provisions of
this Article 2 and in taking all such action as may be necessary or appropriate
to protect Holder's rights under this Article against impairment. If the Company
takes any action affecting the Preferred Shares or its common shares other than
as described above that adversely affects Holder's rights under this Warrant,
the Warrant Price shall be adjusted downward and the number of Preferred Shares
issuable upon exercise of this Warrant shall be adjusted upward in such a manner
that the aggregate Warrant Price of this Warrant is unchanged.
2.6 FRACTIONAL SHARES. No fractional shares shall be issuable upon
exercise or Conversion of the Warrant and the number of shares to be issued
shall be rounded down to the nearest whole Share. If a fractional share interest
arises upon any exercise or Conversion of the Warrant, the Company shall
eliminate such fractional share interest by paying Holder an amount computed by
multiplying the fractional interest by the fair market value of a full share.
2.7 CERTIFICATE AS TO ADJUSTMENTS. Upon each adjustment of the
Warrant Price, the Company at its expense shall promptly compute such
adjustment, and furnish Holder with a certificate of its Chief Financial Officer
setting forth such adjustment and the facts upon which such adjustment is based.
The Company shall, upon written request, furnish Holder a certificate setting
forth the Warrant Price in effect upon the date thereof and the series of
adjustments leading to such Warrant Price.
ARTICLE 3
REPRESENTATIONS AND COVENANTS OF THE COMPANY
3.1 REPRESENTATIONS AND WARRANTIES. The Company hereby represents
and warrants to the Holder as follows:
(a) The initial Warrant Price referenced on the first page
of this Warrant is not greater than (i) the price per share at which the
Preferred Shares were last issued in an arms-length transaction in which at
least $500,000 of the Preferred Shares were sold and (ii) the fair market value
of the Preferred Shares as of the date of this Warrant.
(b) All Preferred Shares which may be issued upon the
exercise of the purchase right represented by this Warrant, and all securities,
if any, issuable upon conversion of the Preferred Shares, shall, upon issuance,
be duly authorized, validly issued, fully paid and nonassessable, and free of
any liens and encumbrances except for restrictions on transfer provided for
herein or under applicable federal and state securities laws.
(c) The Capitalization Table attached to this Warrant is
true and complete as of September 14, 2000.
3.2 NOTICE OF CERTAIN EVENTS. If the Company proposes at any time
(a) to declare any distribution upon its common shares, whether in cash,
property, stock, or other securities and whether or not a regular cash dividend;
(b) to offer for subscription pro rata to the holders of any class or series of
its shares any additional shares of any class or series or other rights; (c) to
effect any reclassification or recapitalization of common shares (d) to merge or
consolidate with or into any other entity, or sell, lease, license, or convey
all or substantially all of its assets, or to liquidate, dissolve or wind up; or
(e) offer holders of registration rights the opportunity to participate in an
underwritten public offering of the company's securities for cash, then, in
connection with each such event, the Company shall give Holder (1) at least 20
days prior written notice of the date on which a record will be taken for such
distribution, or subscription rights (and specifying the date on which the
holders of common shares will be entitled thereto) or for determining rights to
vote, if any, in respect of the matters referred to in (c) and (d) above; (2) in
the case of the matters referred to in (c) and (d) above at least 20 days' prior
written notice of the date when the same will take place (and specifying the
date on which the holders of shares will be entitled to exchange their shares
for securities or other property deliverable upon
4
the occurrence of such event); and (3) in the case of the matter referred to in
(e) above, the same notice as is given to the holders of such registration
rights.
3.3 INFORMATION RIGHTS. So long as the Holder holds this Warrant
and/or any of the Preferred Shares, the Company shall deliver to the Holder (a)
promptly after mailing, copies of all notices or other written communications to
the stockholders of the Company, (b) within ninety (90) days after the end of
each fiscal year of the Company, the annual audited financial statements of the
Company certified by independent public accountants of recognized standing, and
(c) such other financial statements required under and in accordance with any
loan documents between Holder and the Company (or if there are no such
requirements or if the subject loan(s) no longer are outstanding), then within
forty-five (45) days after the end of each of the first three quarters of each
fiscal year, the Company's quarterly, unaudited financial statements.
3.4 REGISTRATION UNDER SECURITIES ACT OF 1933, AS AMENDED. The
Company agrees that the Preferred Shares, or if the Preferred Shares are
convertible into common shares of the Company, such common shares shall be
subject to the registration rights set forth on Exhibit A (which Exhibit A is
hereby incorporated herein and made a part of this Warrant).
ARTICLE 4
MISCELLANEOUS
4.1 TERM. This Warrant is exercisable, in whole or in part, at any
time and from time to time on or before the Expiration Date set forth above.
4.2 LEGENDS. This Warrant and the Preferred Shares (and the
securities issuable, directly or indirectly, upon conversion of the Preferred
Shares, if any) shall be imprinted with a legend in substantially the following
form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED.
4.3 COMPLIANCE WITH SECURITIES LAWS ON TRANSFER. This Warrant and
the Preferred Shares issuable upon exercise of this Warrant (and the securities
issuable, directly or indirectly, upon conversion of the Preferred Shares, if
any) may not be transferred or assigned in whole or in part without compliance
with applicable federal and state securities laws by the transferor and the
transferee (including, without limitation, the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company, as reasonably requested by the Company). The Company shall not require
Holder to provide an opinion of counsel if the transfer is to an affiliate of
Holder or if there is no material question as to the availability of current
information as referenced in Rule 144(c), Holder represents that it has complied
with Rule 144(d) and (e) in reasonable detail, the selling broker represents
that it has complied with Rule 144(f), and the Company is provided with a copy
of Holders notice of proposed sale.
4.4 TRANSFER PROCEDURE. Subject to the provisions of Section 4.3,
Holder may transfer all or part of this Warrant or the Preferred Shares issuable
upon exercise of this Warrant (or the securities issuable, directly or
indirectly, upon conversion of the Preferred Shares, if any) at any time to
Silicon Valley Bancshares or The Silicon Valley Bank Foundation, or to any
affiliate of Holder, or, to any other transferee, by giving the Company notice
of the portion of the Warrant being transferred, setting forth the name, address
and taxpayer identification number of the transferee, and surrendering this
Warrant to the Company for reissuance to the transferee(s) (and Holder if
applicable). Unless the Company is filing financial information with the SEC
pursuant to the Securities Exchange Act of 1934, the Company shall have the
right to refuse to transfer any portion of this Warrant to any person who
directly competes with the Company.
4.5 NOTICES. All notices and other communications from the Company
to the Holder, or vice versa, shall be deemed delivered and effective when given
personally or mailed by first-class registered or certified mail at such address
as may have been furnished to the Company or the Holder, as the case may
5
be, in writing by the Company or such holder from time to time. All notices to
be provided under this Warrant shall be sent to the following address:
Silicon Valley Bank
0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Vice President
Fax: (000)000-0000
with a copy to:
Silicon Valley Bank
Attn: Treasury Department
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Fax: (000)000-0000
4.6 WAIVER. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought.
4.7 ATTORNEYS FEES. In the event of any dispute between the
parties concerning the terms and provisions of this Warrant, the party
prevailing in such dispute shall be entitled to collect from the other party all
costs incurred in such dispute, including reasonable attorneys' fees.
4.8 GOVERNING LAW. This Warrant shall be governed by and construed
in accordance with the laws of the State of Illinois, without giving effect to
its principles regarding conflicts of law.
KANBAY INTERNATIONAL, INC.("Company")
By: /s/ Authorized Party
---------------------------------------------
Name: AUTHORIZED PARTY
----------------------------------------
(Print)
Title: Authorized Party
---------------------------------------
Chief Financial Officer or Secretary
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APPENDIX 1
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase ___________ shares of the
Series A-1 Convertible Preferred Stock (the "Preferred Shares") of Kanbay
International, Inc., a Delaware corporation, pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of such
shares in full.
1. The undersigned hereby elects to convert the attached Warrant into
Preferred Shares in the manner specified in the Warrant. This conversion is
exercised with respect to _____________________ of the Preferred Shares covered
by the Warrant.
[Strike paragraph that does not apply.]
2. Please issue a certificate or certificates representing said
Preferred Shares in the name of the undersigned or in such other name as is
specified below:
-------------------------------------------
(Name)
-------------------------------------------
-------------------------------------------
(Address)
3. The undersigned represents it is acquiring the Preferred Shares
solely for its own account and not as a nominee for any other party and not with
a view toward the resale or distribution thereof except in compliance with
applicable securities laws.
SILICON VALLEY BANK
By:
--------------------------------------
(Signature)
Name:
------------------------------------
Title:
-----------------------------------
-------------------
(Date)
1
EXHIBIT A
TO
WARRANT TO PURCHASE PREFERRED SHARES
REGISTRATION RIGHTS
The shares of common stock issuable upon conversion of the Preferred
Shares shall be deemed "registrable securities" or otherwise entitled to "piggy
back" registration rights in accordance with the terms of that certain Amended
and Restated Registration Rights Agreement by and among the Company, MSIT
Holdings, Inc., a Delaware corporation, Safeguard 98 Capital, L.P., a Delaware
limited partnership, Household Investment Funding, Inc., and certain other
holders of the Company's stock, dated as of September 14, 2000 (the
"Registration Rights Agreement") as if Holder was a party thereto and all such
provisions thereof with respect to such registrable securities and registration
rights were for Holder's benefit (which Registration Rights Agreement is hereby
incorporated herein and made a part of this Warrant).
The Company agrees that no amendments will be made to the Registration
Rights Agreement which would have an adverse impact on Holder's registration
rights thereunder without the consent of Holder.
CAPITALIZATION TABLE
