EXHIBIT 4.5
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OR CONVERSION HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED,
ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (I) THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS COVERING ANY SUCH TRANSACTION OR SUCH TRANSACTION IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND LAWS AND (II) SUCH TRANSFER IS
EFFECTED IN ACCORDANCE WITH THE TERMS SET FORTH IN THIS WARRANT.
WF-00 LXN CORPORATION OCTOBER 11, 2000
SERIES F PREFERRED STOCK PURCHASE WARRANT
This certifies that, for good and valuable consideration, _____ (the
"HOLDER"), or registered assigns, is entitled, upon the terms and subject to the
conditions hereinafter set forth, at any time on or after the date hereof and at
or prior to the close of business on the fifth anniversary of the date hereof
(the "EXPIRATION TIME"), but not thereafter, to acquire from the Company, in
whole or from time to time in part, up to _______ (___) fully paid and
nonassessable shares of Series F Preferred Stock ("WARRANT STOCK") of LXN
Corporation, a Delaware Corporation (the "COMPANY"), at a purchase price per
share of $14.00 (the "EXERCISE PRICE"). Such number of shares, type of security
and Exercise Price are subject to adjustment as provided herein, and all
references to "WARRANT STOCK" and "EXERCISE PRICE" herein shall be deemed to
include any such adjustment or series of adjustments. Warrant Stock converted
into Common Stock of the Company shall hereinafter be defined as "CONVERSION
STOCK."
1. EXERCISE OF WARRANT
The purchase rights represented by this Warrant are exercisable, in whole or
in part, at any time and from time to time at or prior to the Expiration Time,
by the surrender of this Warrant and the Notice of Exercise form attached hereto
duly executed to the office of the Company at 0000 Xxxx Xxxxxxxxx, Xxx Xxxxx, XX
00000, Attn: Corporate Secretary (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
of the Exercise Price for the shares thereby Purchased (by cash or by check or
bank draft payable to the order of the Company or by cancellation of
indebtedness of the Company to the holder hereof, if any, at the time of
exercise in an amount equal to the purchase price of the shares thereby
purchased); 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, and a new Warrant in substantially
identical form and dated as of such exercise for the purchase of that number of
shares of Warrant Stock equal to the difference, if any, between the number of
shares of Warrant Stock subject hereto and the number of shares of Warrant Stock
as to which this Warrant is so exercised.
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2. CONVERSION OF WARRANT
The registered holder hereof shall have the right to convert this
Warrant, in whole or in part, at any time and from time to time at or prior to
the Expiration Time, by the surrender of this Warrant and the Notice of
Conversion form attached hereto duly executed to the office of the Company at
the address set in Section 1 hereof (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), into
shares of Warrant Stock as provided in this Section 2. Upon exercise of this
conversion right, the holder hereof shall be entitled to receive that number of
shares of Warrant Stock of the Company equal to the quotient obtained by
dividing [(A - B)(X)] by (A), where:
A = the Fair Market Value (as defined below) of one share of Warrant
Stock on the date of conversion of this Warrant.
B = the Exercise Price for one share of Warrant Stock under this
Warrant.
X = the number of shares of Warrant Stock as to which this Warrant is
being converted.
If the at above calculation results in a negative number, then no shares of
Warrant Stock shall be issued or issuable upon conversion of this Warrant.
"FAIR MARKET VALUE" of a share of Warrant Stock shall mean:
(a) if the conversion right is being exercised in connection with a
transaction specified in Section 10(b) hereof, the value of the consideration
(determined, in the case of noncash consideration, in good faith by the Board of
Directors of the Company) to be received pursuant to such transaction by the
holder of one share of Warrant Stock;
(b) if the conversion right is being exercised in connection with the
initial public offering of the Company's Common Stock, the initial public
offering price (before deducting commissions, discounts or expenses) at which
the Common Stock is sold in such offering;
(c) if the conversion right is being exercised after the occurrence
of the initial public offering of the Company's Common Stock:
(i) if the Company's Common Stock is traded on an exchange or is
quoted on the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") National Market System, the average of the closing or last
sale price reported for the five (5) business days immediately preceding the
date that the Notice of Conversion is delivered to the Company;
(ii) if the Company's Common Stock is not traded on an exchange
or on the NASDAQ National Market System, but is traded in the over-the-counter
market, the mean of the closing bid and asked prices reported for the five (5)
business days immediately preceding the date that the Notice of Conversion is
delivered to the Company; and
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(d) in all other cases, the fair market value as determined in good
faith by the Company's Board of Directors.
Upon conversion of this Warrant in accordance with this Section 2, the
registered holder hereof shall be entitled to receive a certificate for the
number of shares of Warrant Stock determined in accordance with the foregoing,
and a new Warrant in substantially identical form and dated as of such
conversion for the purchase of that number of shares of Warrant Stock equal to
the difference, if any, between the number of shares of Warrant Stock subject
hereto and the number of shares of Warrant Stock as to which this Warrant is so
converted.
3. ISSUANCE OF SHARES; NO FRACTIONAL SHARES OR SCRIP
Certificates for shares purchased hereunder or issuable upon conversion
hereof shall be delivered to the holder hereof within a reasonable time after
the date on which this Warrant shall have been exercised or converted in
accordance with the terms hereof. The Company hereby represents and warrants
that all shares of Warrant Stock which may be issued upon the exercise or
conversion of this Warrant will, upon such exercise or conversion, 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 (other than liens or
charges created by or imposed upon the holder of the Warrant Stock). The
Company agrees that the shares so issued shall be and shall for all purposes be
deemed to have been 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
exercised or converted in accordance with the terms hereof. No fractional
shares or scrip representing fractional shares shall be issued upon the exercise
or conversion of this Warrant. With respect to any fraction of a share called
for upon the exercise or conversion of this Warrant, an amount equal to such
fraction multiplied by the Fair Market Value of a share of Warrant Stock on the
date of exercise or conversion shall be paid in cash or check to the holder of
this Warrant.
4. CHARGES, TAXES AND EXPENSES
Issuance of certificates for shares of Warrant Stock upon the exercise or
conversion 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.
5. NO RIGHTS AS A STOCKHOLDER
This Warrant does not entitle the holder hereof to any voting rights or
other rights as a stockholder of the Company prior to the exercise or conversion
hereof.
6. RESTRICTIONS ON TRANSFER; LOCK-UP
(a) TRANSFER OF WARRANT. Prior to the Expiration Time and subject to
compliance with applicable laws, this Warrant and all rights hereunder are
transferable by the holder hereof, in whole or in part, at the office or agency
of the Company referred to in Section 1 hereof Any such transfer shall be made
upon surrender of this Warrant together with the Assignment Form attached hereto
properly executed, endorsed and guaranteed. Notwithstanding
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the foregoing, the Company may prohibit the transfer of this Warrant and the
rights hereunder to more than a single transferee or to a transferee which the
Company reasonably believes to be an actual or potential competitor of the
Company. The Company shall not be required to effect any transfer of this
Warrant or the rights hereunder unless the transferor and transferee provide the
Company with an opinion of counsel that such transfer is in compliance with
applicable Federal and state securities laws, or provide the Company with
information and representations sufficient for the Company to make such
determination. The Company shall not be required to effect any transfer of this
Warrant or the rights hereunder unless the transferee shall have agreed in
writing to be bound by the restrictions set forth in this Warrant.
(b) TRANSFER OF WARRANT STOCK. The Company may, until the Expiration
Time, prohibit the transfer of the Warrant Stock or Conversion Stock to more
than a single transferee or to a transferee which the Company reasonably
believes to be an actual or potential competitor of the Company. The Company
shall not be required to effect any transfer of the Warrant Stock or Conversion
Stock unless the transferor and transferee provide the Company with an opinion
of counsel that such transfer is in compliance with applicable Federal and state
securities laws, or provide the Company with information sufficient for the
Company to make such determination. The Company shall not be required to effect
any transfer of the Warrant Stock or Conversion Stock unless the transferee
shall have agreed in writing to be bound by the restrictions set forth in this
Warrant.
(c) LOCK-UP. In connection with the initial public offering of any
securities of the Company, if so requested by the Company or any representative
of the underwriters (the "MANAGING UNDERWRITER"), the Warrant, the Warrant Stock
or Conversion Stock and any securities of the Company issued with respect
thereto may not be sold or otherwise transferred during the period specified by
that Company's Board of Directors at the request of the Managing Underwriter,
with such period no to exceed 180 days following the date of a final prospectus
relating to the Company's initial public offering (the "MARKET STANDOFF
PERIOD"). The Company may impose stop-transfer instructions with respect to
securities subject to the foregoing restrictions until the end of such Market
Standoff Period. The restrictions set forth in this Section 6(c) shall be of no
further force or effect following the transfer of the securities subject hereto
pursuant to a registration statement filed under the Securities Act or pursuant
to a brokers' transaction or transaction with a market maker pursuant to Rule
144 promulgated under the Securities Act.
(d) NO PUBLIC MARKET. At the date of issuance of this Warrant, no
public market exists for any of the securities of the Company and the Company
makes no assurances that a public market will ever exist for the Company's
securities.
(e) LEGEND. The certificates representing the Warrant Stock or
Conversion Stock and any securities of the Company issued with respect thereto
shall be imprinted with legends restricting transfer except in compliance with
the terms hereof and with applicable Federal and state securities laws.
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7. 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
in substantially identical form 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, exercise or conversion, in accordance with
its terms, at such office or agency of the Company, and the Company shall be
entitled to rely in all respects upon such registry.
8. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
On receipt by the Company of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and in
case of any such loss, theft or destruction of this Warrant, on a delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, on surrender and cancellation of such
Warrant, the Company will execute and deliver to the holder, in lieu thereof, a
new Warrant in substantially identical form, dated as of such cancellation and
reissuance.
9. 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 business day.
10. ADJUSTMENT TO NUMBER AND TYPE OF SECURITIES AND EXERCISE PRICE
The type and number of securities of the Company issuable upon exercise of
this Warrant and the Exercise Price are subject to adjustment as set forth
below:
(a) ADJUSTMENT FOR STOCK SPLITS, STOCK DIVIDENDS, RECAPITALIZATIONS,
AUTOMATIC CONVERSION, ETC. The Exercise Price and the number and type of
securities and/or other property issuable upon exercise of this Warrant shall be
appropriately and proportionately adjusted to reflect any stock dividend, stock
split, combination of shares, reclassification, recapitalization, automatic
conversion, redemption or other similar event affecting the number or character
of outstanding shares of Warrant Stock or Conversion Stock, so that the number
and type of securities and/or other property issuable upon exercise of this
Warrant shall be equal to that which would have been issuable with respect to
the number of shares of Warrant Stock or Conversion Stock subject hereto at the
time of such event, had such shares of Warrant Stock or Conversion Stock then
been outstanding.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC. In case
of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in which
the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization, or any transaction in which in excess
of 50% of the Company's voting power is transferred, or any sale of all or
substantially all of the assets of the Company (any such transaction being
hereinafter referred to as a "REORGANIZATION"), then, in each case, the holder
of this Warrant, on exercise or conversion
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hereof at any time after the consummation or effective date of such
Reorganization, shall receive, in lieu of the Warrant Stock or Conversion Stock
issuable on such exercise prior to the date of such Reorganization, the stock
and other securities and property (including cash) to which such holder would
have been entitled upon the date of such Reorganization if such holder had
exercised this Warrant immediately prior thereto.
(c) CERTIFICATE AS TO ADJUSTMENTS. In case of any adjustment in the
Exercise Price or number and type of securities issuable on the exercise of this
Warrant, the Company will promptly give written notice thereof to the holder of
this Warrant in the form of a certificate, certified and confirmed by an officer
of the Company, setting forth such adjustment and showing in reasonable detail
the facts upon which such adjustment is based.
11. REPRESENTATIONS AND WARRANTIES OF HOLDER
In connection with the issuance of this Warrant (this Warrant, the Warrant
Stock and the Conversion Stock, collectively, the "SECURITIES"), Holder hereby
agrees, represents and warrants as follows: (i) Holder is acquiring the
Securities solely for its own account for investment and not with a view to or
for sale or distribution of the Securities or any portion thereof and not with
any present intention of selling, offering to sell or otherwise disposing of or
distributing the Securities or any portion thereof, (ii) the entire legal and
beneficial interest of the Securities is being purchased for, and will be held
for the account of, Holder only and neither in whole nor in part for any other
person; (iii) Holder either (a) has a prior business and/or personal
relationship with the Company and/or its officers and directors, or (b) by
reason of its business or financial experience or the business or financial
experience of its professional advisors who are unaffiliated with the Company,
and who are not compensated by the Company, has the capacity to protect its own
interests in connection with the purchase of the Securities; and (iv) the
transaction under which Holder is purchasing the Securities has not been
registered under the Securities Act, and the Securities must be held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available.
12. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the holder hereof that:
(a) during the period this Warrant is outstanding, the Company will
reserve from its authorized and unissued Warrant Stock a sufficient number of
shares to provide for the issuance of Warrant Stock upon the exercise or
conversion of this Warrant;
(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 or Conversion Stock issuable upon exercise or conversion 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 or
Conversion Stock hereunder and to carry out and perform its obligations under
the terms of this Warrant; and
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(d) all corporate action on the part of the Company, its directors and
stockholders necessary for the authorization, execution, delivery and
performance of this Warrant by the Company, the authorization, sale, issuance
and delivery of the Warrant Stock or Conversion Stock and the performance of the
Company's obligations hereunder has been taken.
(e) No consent, approval or authorization of or designation,
declaration or filing with any United States of America Federal or state
governmental authority on the part of the Company is required in connection with
the valid execution and delivery of this Warrant (and the shares of Series F
Preferred Stock issuable upon exercise of this Warrant and the Common Stock
issuable upon conversion thereof) or the consummation of any other transaction
contemplated hereby, except (a) qualification (or taking such action as may be
necessary to secure an exemption from qualification, if available) of the offer
and sale of this Warrant (and the shares of Series F Preferred Stock issuable
upon exercise of this Warrant and the Common Stock issuable upon conversion
thereof) under the securities laws, which filings and qualifications, if
required, will be accomplished in a timely manner, and (b) filing of a notice
pursuant to Regulation D of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), which filing will be accomplished in a timely manner.
13. COOPERATION
The Company will not, by amendment of its Certificate of Incorporation 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. GOVERNING LAW
This Warrant shall be governed by and construed in accordance with the laws
of the State of Delaware.
15. REGISTRATION RIGHTS
Upon exercise of this Warrant in accordance with its terms, the Holder
shall be entitled to registration rights with regard to the Warrant Stock issued
upon exercise hereof pursuant to the terms of the Sixth Amended and Restated
Registration Rights Agreement dated October 11, 2000.
16. CO-SALE RIGHTS
Upon exercise of this Warrant in accordance with its terms, the Holder
shall be entitled to co-sale rights with regard to the Warrant Stock issued upon
exercise hereof pursuant to the terms of the Sixth Amended and Restated Co-Sale
Agreement dated October 11, 2000.
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IN WITNESS WHEREOF, the Company and the Holder have caused this Warrant to
be executed as of the date first written above.
LXN CORPORATION,
a Delaware corporation
By:
-----------------------------
Xxxxxxx Xxxxxxxxxx, President
HOLDER
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
[SIGNATURE PAGE TO WARRANT FOR LXN SERIES F PREFERRED STOCK]
NOTICE OF EXERCISE
To: LXN Corporation, a Delaware corporation
(1) The undersigned hereby elects to purchase ______________ shares of
Series F Preferred Stock of LXN Corporation, a Delaware corporation, pursuant to
the terms of the attached Warrant, and tenders herewith payment of the purchase
price in full.
(2) 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,
except in compliance with applicable Federal and state securities laws.
(3) The undersigned accepts such shares subject to the restrictions on
transfer set forth in the attached Warrant.
----------------------------- -----------------------------
(Date) (Signature)
NOTICE OF CONVERSION
To: LXN Corporation, a Delaware corporation
(1) The undersigned hereby elects to convert that portion of the attached
Warrant representing the right to purchase ______________ shares of Series F
Preferred Stock of LXN Corporation into such number of shares of Series F
Preferred Stock of LXN Corporation as is determined pursuant to Section 2 of
such Warrant, which conversion shall be effected pursuant to the terms of the
attached Warrant.
(2) 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, except in
compliance with applicable federal and state securities laws.
(3) The undersigned accepts such shares subject to the restrictions on
transfer set forth in the attached Warrant.
----------------------------- -----------------------------
(Date) (Signature)
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply the required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
____________________________________________________
(Please Print)
whose address is____________________________________
(Please Print)
Dated:_________________________________________
Holder's Signature:____________________________
Holder's Address:______________________________
_______________________________________________
Guaranteed Signature:_______________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by an eligible guarantor institution
such as a bank, stockbroker, savings and loan association or credit union with
membership in an approved medallion signature guarantee program. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
The undersigned transferee agrees to hold the Warrant and any Warrant Stock
issuable upon exercise or conversion of the Warrant subject to the restrictions
on transfer set forth in the Warrant.
By:________________________________
Date:______________________________
RECEIPT
and
ACKNOWLEDGMENT FORM
of
WARRANT TO PURCHASE SERIES F PREFERRED STOCK
The undersigned hereby acknowledges receipt of Warrant No. WF-00
representing the right to purchase _______________ (_____) Shares of Series F
Stock of LXN Corporation (the "SHARES").
The undersigned further acknowledges that said certificate contains a
restrictive legend as to referring to the Securities Act of 1933, as amended.
Dated__________________________
HOLDER
_________________________________
By
__________________________________
Title
