Exhibit D
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THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT
IN EFFECT WITH RESPECT TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED,
OR UNLESS SOLD PURSUANT TO AN EXEMPTION TO THE ACT.
COMMON STOCK PURCHASE WARRANT
F5 NETWORKS, INC.
THIS CERTIFIES that, for value received, NOKIA FINANCE INTERNATIONAL
BV, a private company with limited liability (besloten vennootschap met beperkte
aansprakelijkheid), incorporated under the laws of The Netherlands, or its
permitted assigns (collectively, the "Holder"), is entitled, upon the terms and
subject to the conditions hereinafter set forth, at any time or from time to
time during the exercise periods set forth in Section 2 hereof, to acquire from
F5 NETWORKS, INC., a Washington corporation (the "Company"), that number of
fully paid nonassessable shares of common stock, without par value, of the
Company (the "Common Stock") set forth in Section 2 against payment of the
exercise price per share set forth in Section 2. The shares of Common Stock
issued pursuant to this Warrant are collectively referred to as the "Warrant
Stock".
1. EXERCISE OF WARRANT. The purchase rights represented by this Warrant are
exercisable by the registered Holder hereof during each of the Exercise Periods
set forth in Section 2 below for any number of shares of Warrant Stock up to the
maximum number set forth opposite the relevant Exercise Period in Section 2
below by the presentation of this Warrant and the notice of exercise attached
hereto (the "Notice of Exercise") for such Exercise Period duly executed to the
principal corporate offices of the Company (or such other office or agency of
the Company as it may designate by notice in writing to the registered Holder
hereof at the address of such Holder appearing on the books of the Company), and
upon payment (by wire transfer or other immediately available funds) of the
exercise price per share set forth in Section 2 (the "Exercise Price") subject
to adjustment as provided in Section 10 below multiplied by the number of shares
specified in the Notice of Exercise; whereupon the Holder of this Warrant shall
be entitled to receive from the Company a stock certificate in proper form
representing the number of shares of Warrant Stock so purchased. The Company
shall, for any exercise prior to the expiration of Option 3, acknowledge the
exercise of this Warrant in part, by countersigning the relevant Notice of
Exercise and returning this Warrant to the Holder presenting this Warrant for
exercise.
2. EXERCISE PERIODS; MAXIMUM NUMBER OF SHARES; EXERCISE PRICE PER SHARE.
EXERCISE PERIODS MAXIMUM NUMBER OF SHARES EXERCISE PRICE PER SHARE
---------------- ------------------------ ------------------------
Option 1 10 Business Days that number of shares necessary to Average Closing Price as of
-------- immediately following increase the Holding Group's aggregate December 31, 2001
December 31, 2001 interest in the Company to one share
less than 15% of the Company's
outstanding Common Stock as measured
on the date of exercise
Option 2 10 Business Days that number of shares necessary to Average Closing Price as of
-------- immediately following increase the Holding Group's aggregate June 30, 2002
June 30, 2002 interest in the Company to one share
less than 20% of the Company's
outstanding Common Stock as measured
on the date of exercise
Option 3 10 Business Days that number of shares necessary to Average Closing Price as of
-------- immediately following increase the Holding Group's aggregate December 31, 2002
December 31, 2002 interest in the Company to one share
less than 20% of the Company's
outstanding Common Stock as measured
on the date of exercise
"Holding Group" means the Holder plus (i) any transferee of all or a
portion of this Warrant (a "Warrant Transferee") and (ii) any transferee of the
any shares of the Company's Common Stock originally acquired by the Holder or a
Warrant Transferee pursuant either to this Warrant or the Common Stock and
Warrant Purchase Agreement made as of June 26, 2001 between the Company and the
Holder (the "Transferred Securities"); provided, however, that any securities of
the Company held by a transferee that are not Transferred Securities, shall not
be included in calculating the percentage ownership of the Holding Group.
The "Average Closing Price" means as of any date the average of the
last reported sales prices of the shares of Common Stock on the Nasdaq National
Market (or other exchange in which the shares are then listed) for the ten (10)
consecutive trading days ending on the date specified, or if such date is not a
trading day, on the previous trading day. "Business Day" means any day other
than a Saturday or Sunday or any on which commercial banks in Seattle,
Washington or Helsinki, Finland are authorized or obligated by law to close.
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3. ISSUANCE OF SHARES; NO FRACTIONAL SHARES OR SCRIP. Certificates for shares
purchased hereunder shall be delivered to the Holder hereof by the Company's
transfer agent at the Company's expense within a reasonable time after the date
on which this Warrant shall have been exercised in accordance with the terms
hereof. Each certificate so delivered shall be in such denominations as may be
requested by the Holder hereof and shall be registered in the name of such
Holder or, subject to applicable laws, other name as shall be requested by such
Holder. The Company hereby represents and warrants that all shares of Warrant
Stock which may be issued upon the exercise of this Warrant will, upon such
exercise, be duly and validly authorized and issued, fully paid and
nonassessable and free from all taxes, liens and charges in respect of the
issuance thereof. The Company agrees that the shares so issued shall be and be
deemed to be issued to such 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
for exercise in accordance with the terms hereof. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant.
4. CHARGES, TAXES AND EXPENSES. Issuance of certificates for shares of Warrant
Stock upon the exercise of this Warrant shall be made without charge to the
Holder hereof for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which taxes and expenses
shall be paid by the Company, and such certificates shall be issued in the name
of the Holder of this Warrant or in such name or names as may be directed by the
Holder of this Warrant.
5. NO RIGHTS AS SHAREHOLDERS. This Warrant does not entitle the Holder hereof to
any voting rights or other rights as a shareholder of the Company prior to the
exercise hereof.
6. EXCHANGE AND REGISTRY OF WARRANT. This Warrant is exchangeable, upon the
surrender hereof by the registered Holder at the above-mentioned office or
agency of the Company, for a new Warrant of like tenor and dated as of such
exchange. The Company shall maintain at the above-mentioned office or agency a
registry showing the name and address of the registered Holder of this Warrant.
This Warrant may be surrendered for exchange, transfer or exercise, in
accordance with its terms, at such office or agency of the Company, and the
Company shall be entitled to rely in all respects, prior to written notice to
the contrary, upon such registry.
7. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new Warrant of like tenor and dated as of such cancellation,
in lieu of this Warrant.
8. SATURDAYS, SUNDAYS AND HOLIDAYS. If the last or appointed day for the taking
of any action or the expiration of any right required or granted herein shall be
a Saturday or a Sunday or shall be a legal holiday, then such action may be
taken or such right may be exercised on the next succeeding day not a legal
holiday.
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9. CHANGE-IN-CONTROL TRANSACTION. If at any time, while this Warrant, or any
portion thereof, is outstanding and unexpired, a Change-in-Control Transaction
(as defined below) shall be initiated, this Warrant shall become fully-vested
and exercisable immediately prior to the Change-in-Control Transaction, and
lawful provision shall be made so that the Holder shall thereafter be entitled
to receive upon exercise of this Warrant upon payment of the Exercise Price in
effect based on the Average Trading Price on the trading day prior to the first
public announcement of the Change-in-Control Transaction, up to either (i) that
number of shares necessary to increase the Holding Group's interest in the
Company to one share less than 20% of the Company's outstanding Common Stock on
the date of exercise (after giving effect to any issuance of shares in
connection with the Change-in-Control Transaction); or (ii) the equivalent
number of shares of stock or other securities or property of the successor
corporation resulting from such Change-in-Control Transaction (after giving
effect to the exchange ratio or other consideration methodology applied in such
Change-in-Control Transaction). A "Change-in-Control Transaction" means (a) any
agreement to which the Company is a party calling for the merger or
consolidation of the Company or the sale of all or a substantial portion of the
assets of the Company; (b) any acquisition by any third party of beneficial
ownership of 50% or more of the outstanding Common Stock of the Company; or (c)
any public announcement of a tender or exchange offer for 50% or more of the
outstanding Common Stock of the Company. The Holder of this Warrant shall have
the same rights to notice and information provided to the shareholders of the
Company in connection with any Change-in-Control Transaction. In the event this
Warrant is not exercised within 10 Business Days after the consummation of the
Change-in-Control Transaction, this Warrant shall terminate.
10. SUBDIVISION, COMBINATION, RECLASSIFICATION, ETC. If the Company at any time
shall, by subdivision, combination, reclassification of securities or otherwise,
change the Warrant Stock into the same or a different number of securities of
any class or classes, this Warrant shall thereafter entitle the holder to
acquire such number and kind of securities as would have been issuable in
respect of the Warrant Stock (or other securities which were subject to the
purchase rights under this Warrant immediately prior to such subdivision,
combination, reclassification or other change) as the result of such change if
this Warrant had been exercised in full for cash immediately prior to such
change. The Exercise Price per share of the Warrant Stock shall be adjusted if
and to the extent necessary to reflect such change. In the event that, on or
after the first trading day included in the calculation of Average Closing Price
in respect of any Exercise Period and on or prior to the date of exercise of the
Warrant during such Exercise Period, there shall have occurred (i) any dividend
or distribution of assets (whether in the form of cash, securities, property or
any other assets, or any rights to acquire any of such) other than a normal
quarterly cash dividend consistent with past practice, or (ii) any issue or sale
to holders of Common Stock generally of any such assets or of shares of capital
stock of the Company without consideration or for a consideration less than the
fair market value thereof (which in the case of Common Stock will be deemed to
be the applicable Average Closing Price), the Exercise Price per share shall be
appropriately reduced to reflect the impact of such dividend, distribution,
issue or sale. Similarly, in the event that, on or after the first trading day
included in the calculation of Average Closing Price in respect of any Exercise
Period and on or prior to the date of exercise of the Warrant during such
Exercise Period, there shall have occurred reverse stock-split or similar
combination of the Common Stock, the Exercise Price per share shall be
appropriately increased to reflect the impact of such reverse stock-split or
combination. The Company shall give the
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holder prompt written notice of any change in the type of securities issuable
hereunder, any adjustment of the Exercise Price per share of Warrant Stock to be
issued under this Warrant and any increase or decrease in the number of shares
issuable hereunder.
11. TRANSFERABILITY; COMPLIANCE WITH SECURITIES ACT
(a) This Warrant and the rights hereunder shall be transferable by the
Holder hereof only to a transferee that is a subsidiary of the Investor or the
ultimate parent of the Investor or any other subsidiary of such parent.
(b) Each certificate representing the Warrant Stock or other securities
issued in respect of the this Warrant upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall be stamped or
otherwise imprinted with a legend substantially in the following form (in
addition to any legend required under applicable state securities laws):
"These securities have not been registered under the Securities Act of
1933, as amended (the "Act"), or any state securities laws. They may
not be sold, offered for sale, pledged, hypothecated or otherwise
transferred in the absence of a registration statement in effect with
respect to the securities under the Act or an opinion of counsel
reasonably satisfactory to the company that such registration is not
required, or unless sold pursuant to an exemption to the Act."
12. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Company hereby represents,
warrants and covenants to the Holder hereof that:
(a) during the period this Warrant is outstanding, the Company will
reserve from its authorized and unissued Common Stock a sufficient number of its
duly authorized but unissued shares of Common Stock to provide for the issuance
of shares of Common Stock issuable upon exercise of this Warrant in full;
(b) the issuance of this Warrant shall constitute full authority to the
Company's officers who are charged with the duty of executing stock certificates
to execute and issue the necessary certificates for the shares of Warrant Stock
issuable upon exercise of this Warrant;
(c) the Company has all requisite legal and corporate power to execute
and deliver this Warrant, to sell and issue the Warrant Stock hereunder and to
carry out and perform its obligations under the terms of this Warrant; and
(d) all corporate action on the part of the Company, its directors and
shareholders necessary for the authorization, execution, delivery and
performance of this Warrant by the Company, the authorization, sale, issuance
and delivery of the Warrant Stock and the performance of the Company's
obligations hereunder has been taken and shall remain in full force and effect;
and
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(e) the Warrant Stock, when issued in compliance with the provisions of
this Warrant, will be duly and validly authorized, issued, fully paid and
nonassessable, and free of all taxes, liens or encumbrances with respect to the
issue thereof, and will be issued in compliance with all applicable federal and
state securities laws.
13. COOPERATION. The Company will not, by amendment of its Articles or through
any reorganization, recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Company, but will at all times in good faith assist
in the carrying out of all the provisions of this Warrant and in the taking of
all such action as may be necessary or appropriate in order to protect the
rights of the Holder of the Warrant against impairment.
14. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost,
stolen, mutilated or destroyed, the Company may, on reasonable terms as to
indemnity or otherwise (which shall, in the case of a mutilated Warrant, include
the surrender thereof), issue a new Warrant of like denomination and tenor as,
and in substitution for, this Warrant.
15. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant shall inure
to the benefit of, and be binding upon, the Company and the Holders hereof and
their respective successors and assigns.
16. AMENDMENTS AND WAIVERS. Any term of this Warrant may be amended and the
observance of any terms of this Warrant may be waived (either generally or in a
particular instance and either retroactively or prospectively), with the written
consent of the Company and the Holder.
17. NOTICES. All notices required under this Warrant shall be deemed to have
been given or made for all purposes (i) upon personal delivery, (ii) upon
confirmation receipt that the communication was successfully sent to the
applicable number if sent by facsimile; (iii) one day after being sent, when
sent by professional overnight courier service, or (iv) five days after posting
when sent by registered or certified mail. Notices to the Company shall be sent
to the principal office of the Company (or at such other place as the Company
shall notify the Holder hereof in writing). Notices to the Holder shall be sent
to the address of the Holder on the books of the Company (or at such other place
as the Holder shall notify the Company in writing).
18. CAPTIONS. The section and subsection headings of this Warrant are inserted
for convenience only and shall not constitute a part of this Warrant in
construing or interpreting any provision hereof.
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19. GOVERNING LAW. This Warrant shall be governed by and construed in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officers.
Dated: June 26, 2001 F5 NETWORKS, INC.,
a Washington corporation,
By /s/ Xxxx XxXxxx
----------------------------
Xxxx XxXxxx, President
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NOTICE OF EXERCISE
OPTION 1
To: F5 NETWORKS, INC.
(1) The undersigned hereby elects to purchase (check one and complete):
[_] _______________ shares of common stock of F5 NETWORKS, INC.
[_] The full number of shares of common stock for which this Warrant
is exercisable under Option 1 on the date hereof,
in either case pursuant to the terms of the attached Warrant, and the
undersigned tenders herewith payment of the purchase price in full, together
with all applicable transfer taxes, if any.
(2) The purchase price per share of common stock, calculated as provided in
Section 2 of the attached Warrant is $_____.
(3) Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name as is specified below:
--------------------------------
(Name)
--------------------------------
(Address)
(4) The undersigned represents that the aforesaid shares 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 other than in a
transaction that is registered under the Securities Act of 1933 or is exempt
from, or is not subject to, such registration.
January __, 2002
------------------------------------- ----------------------------------------
(Date) (Signature)
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NOTICE OF EXERCISE
OPTION 2
To: F5 NETWORKS, INC.
(1) The undersigned hereby elects to purchase (check one and complete):
[_] _______________ shares of common stock of F5 NETWORKS, INC.
[_] The full number of shares of common stock for which this Warrant
is exercisable under Option 2 on the date hereof,
in either case pursuant to the terms of the attached Warrant, and the
undersigned tenders herewith payment of the purchase price in full, together
with all applicable transfer taxes, if any.
(2) The purchase price per share of common stock, calculated as provided in
Section 2 of the attached Warrant is $_____.
(3) Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name as is specified below:
--------------------------------
(Name)
--------------------------------
(Address)
(4) The undersigned represents that the aforesaid shares 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 other than in a
transaction that is registered under the Securities Act of 1933 or is exempt
from, or is not subject to, such registration.
January __, 2002
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(Date) (Signature)
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NOTICE OF EXERCISE
OPTION 3
To: F5 NETWORKS, INC.
(1) The undersigned hereby elects to purchase (check one and complete):
[_] _______________ shares of common stock of F5 NETWORKS, INC.
[_] The full number of shares of common stock for which this Warrant
is exercisable under Option 2 on the date hereof,
in either case pursuant to the terms of the attached Warrant, and the
undersigned tenders herewith payment of the purchase price in full, together
with all applicable transfer taxes, if any.
(2) The purchase price per share of common stock, calculated as provided in
Section 2 of the attached Warrant is $_____.
(3) Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name as is specified below:
--------------------------------
(Name)
--------------------------------
(Address)
(4) The undersigned represents that the aforesaid shares 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 other than in a
transaction that is registered under the Securities Act of 1933 or is exempt
from, or is not subject to, such registration.
January __, 2003
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(Date) (Signature)
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