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EXHIBIT 4.03
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THIS WARRANT MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO SILKNET
SOFTWARE, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
NOTICE TO NEW HAMPSHIRE RESIDENTS
NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A LICENSE
HAS BEEN FILED UNDER RSA 421-B WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT
A SECURITY IS EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW
HAMPSHIRE CONSTITUTES A FINDING BY THE SECRETARY OF STATE THAT ANY DOCUMENT
FILED UNDER RSA 421-B IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH
FACT NOR THE FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE FOR A SECURITY OR
A TRANSACTION MEANS THAT THE SECRETARY OF STATE HAS PASSED IN ANY WAY UPON THE
MERITS OR QUALIFICATIONS OF OR RECOMMENDED OR GIVEN APPROVAL TO ANY PERSON
SECURITY OR TRANSACTION. IT IS UNLAWFUL TO MAKE OR CAUSE TO BE MADE TO ANY
PROSPECTIVE PURCHASER CUSTOMER OR CLIENT ANY REPRESENTATION INCONSISTENT WITH
THE PROVISIONS OF THIS PARAGRAPH.
COMMON STOCK PURCHASE WARRANT
Warrant No. 1 Number of Shares 250,000
SILKNET SOFTWARE, INC.
Void after , 2002
1. ISSUANCE. This Warrant is issued to Zero Stage Capital V,
L.P. by Silknet Software, Inc., a New Hampshire corporation (hereinafter with
its successors called the "Company").
2. PURCHASE PRICE; NUMBER OF SHARES. Subject to the terms and
conditions hereinafter set forth, the registered holder of this Warrant (the
"Holder"), commencing on the date hereof, is entitled upon surrender of this
Warrant with the subscription form annexed hereto duly executed, at the office
of the Company, 0000 Xxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx 00000, or such other
office as the Company shall notify the Holder of in writing, to purchase from
the Company at a price per share (the "Purchase Price") of $0.50, 250,000 fully
paid and nonassessable shares of Common Stock, no par value, of the company (the
"Common Stock").
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Until such time as this Warrant is exercised in full or expires, the Purchase
Price and the securities issuable upon exercise of this Warrant are subject to
adjustment as hereinafter provided.
3. PAYMENT OF PURCHASE PRICE. The Purchase Price may be paid (i) in
cash or by check, (ii) by the surrender by the Holder to the Company of any
promissory notes or other obligations issued by the Company, with all such notes
and obligations so surrendered being credited against the Purchase Price in an
amount equal to the principal amount thereof plus accrued interest to the date
of surrender, (iii) through delivery by the Holder to the Company of other
securities issued by the Company, with such securities being credited against
the Purchase Price in an amount equal to the fair market value thereof, as
determined in good faith by the Board of Directors of the Company (the "Board"),
or (iv) by any combination of the foregoing. The Board shall promptly respond in
writing to an inquiry by the Holder as to the fair market value of any
securities the Holder may wish to deliver to the company pursuant to clause
(iii) above.
4. NET ISSUE ELECTION. The Holder may elect to receive, without the
payment by the Holder of any additional consideration, shares equal to the value
of this Warrant or any portion hereof by the surrender of this Warrant or such
portion to the Company, with the net issue election notice annexed hereto duly
executed, at the office of the Company. Thereupon, the Company shall issue to
the Holder such number of fully paid and nonassessable shares of Common Stock as
is computed using the following formula:
X = Y (A-B)
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A
where X = the number of shares to be issued to the Holder pursuant to
this Section 4.
Y = the number of shares covered by this Warrant in respect of
which the net issue election is made pursuant to this Section
4.
A = the fair market value of one share of Common Stock, as
determined in good faith by the Board, as at the time the net
issue election is made pursuant to this Section 4.
B = the Purchase Price in effect under this Warrant at the time
the net issue election is made pursuant to this Section 4.
The Board shall promptly respond in writing to an inquiry by the Holder as to
the fair market value of one share of Common Stock.
5. PARTIAL EXERCISE. This Warrant may be exercised in part, and the
Holder shall be entitled to receive a new warrant, which shall be dated as of
the date of this Warrant, covering the number of shares in respect of which this
Warrant shall not have been exercised.
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6. ISSUANCE DATE. The person or persons in whose name or names any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby as
at the close of business on the date this Warrant is exercised with respect to
such shares, whether or not the transfer books of the Company shall be closed.
7. EXPIRATION DATE. This Warrant shall expire at the close of business
on , 2002, and shall be void thereafter.
8. RESERVED SHARES, VALID ISSUANCE. The Company covenants that it will
at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Common Stock, free from all preemptive or
similar rights therein, as will be sufficient to permit the exercise of this
Warrant in full. The Company further covenants that such shares as may be issued
pursuant to the exercise of this Warrant will, upon issuance, be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof.
9. DIVIDENDS. If after the date hereof (the "Original Issue Date") the
Company shall subdivide the Common Stock, by split-up or otherwise, or combine
the Common Stock, or issue additional shares of Common Stock in payment of a
stock dividend on the Common Stock, the number of shares issuable on the
exercise of this Warrant shall forthwith be proportionately increased in the
case of a subdivision or stock dividend, or proportionately decreased in the
case of a combination, and the Purchase Price shall forthwith be proportionately
decreased in the case of a subdivision or stock dividend, or proportionately
increased in the case of a combination. Prior to an initial public offering of
equity securities of the Company, the Company shall not pay any dividend or make
any other distribution upon the Common Stock payable in cash, property or
securities of the Company other than Common Stock or in securities of a
corporation other than the Company.
10. RECLASSIFICATIONS. If after the Original Issue Date there shall be
any reclassification, capital reorganization or change of the Common Stock
(other than as a result of a subdivision, combination or stock dividend provided
in Section 9 hereof), or any sale or conveyance to another corporation or other
business organization of all or substantially all of the assets of the Company,
then, as a condition of such reclassification, reorganization, change, sale or
conveyance, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered to the
Holder, so that the Holder shall thereafter have the right to purchase, at a
total price not to exceed that payable upon the exercise of this Warrant in
full, the kind and amount of shares of stock and other securities and property
receivable upon such reclassification, reorganization, change, sale or
conveyance by a holder of the number of shares of Common Stock which might have
been purchased by the Holder immediately prior to such reclassification,
reorganization, change, sale or conveyance, and in any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
to the end that the provision hereof (including without limitation, provisions
for the adjustment of the Purchase Price and the number of shares issuable
hereunder) shall thereafter be applicable in relation to any shares of stock or
other securities and property thereafter deliverable
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upon exercise hereof, provided that the holder must exercise this Warrant or
consent to the expiration of this Warrant immediately prior to any consolidation
of the Company with, or merger of the Company into, another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification or change of the
outstanding Common Stock or a consolidation or merger into a subsidiary of the
Corporation).
11. ADJUSTMENTS FOR ISSUANCES BELOW PURCHASE PRICE. In case the Company
shall at any time or from time to time after the Original Issue Date issue or
sell any Common Stock or any securities convertible into or exchangeable for
Common Stock (other than shares issued in transactions to which Sections 9 or 10
of this Warrant apply) for a consideration per share less than the Purchase
Price in effect for this Warrant immediately prior to the time of such issue or
sale, then forthwith upon such issue or sale, the Purchase Price shall (until
another such issue or sale) be reduced to the price at which the Company issued
or sold such securities. Further, the number of shares purchasable hereunder
shall be increased to a number determined by dividing (i) the number of shares
purchasable hereunder immediately prior to such issue or sale, multiplied by the
Purchase Price hereunder immediately prior to such event, by (ii) the Purchase
Price in effect immediately after the foregoing adjustment. If the price per
share for which Common Stock is deliverable upon such conversion or exchanged
(determined by dividing (i) the total minimum amount received or receivable by
the Company in consideration of the issue or sale of such convertible or
exchangeable shares or obligations, plus the total minimum amount of premiums,
if any, payable to the Company upon conversion or exchange, by (ii) the total
number of shares of Common Stock necessary to effect the conversion or exchange
of all such convertible or exchangeable shares or obligations) shall be less
than the Purchase Price in effect immediately prior to the time of such issue or
sale, then such issue or sale shall be deemed to be an issue or sale (as of the
date of issue or sale of such convertible or exchangeable share or obligations)
of the total maximum number of shares of Common Stock necessary to effect the
conversion or exchange of all such convertible or exchangeable shares or
obligations, and the total minimum amount received or receivable by the Company
in consideration of the issue or sale of such convertible or exchangeable shares
or obligations, plus the total minimum amount of premiums, if any, payable to
the Company upon exchange or conversion, shall be deemed to be the consideration
actually received (as of the date of the issue or sale of such convertible or
exchangeable shares or obligations) for the issue or sale of such Common Stock.
Notwithstanding anything to the contrary contained in this Section 11, no
adjustment to Purchase Price or number of shares purchasable hereunder shall be
made as a result of the grant of options to purchase Common Stock to employees
of the Company or the issuance of shares of Common Stock upon exercise thereof.
12. FRACTIONAL SHARES. In no event shall any fractional share of Common
Stock be issued upon any exercise of this Warrant. If, upon exercise of this
Warrant as an entirety, the Holder would, except as provided in this Section 12,
be entitled to receive a fractional share of Common Stock, then the Company
shall issue the next higher number of full shares of Common Stock, issuing a
full share with respect to such fractional share.
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13. CERTIFICATE OF ADJUSTMENT. Whenever the Purchase Price is adjusted,
as herein provided, the Company shall promptly deliver to the Holder a
certificate of a firm of independent public accountants setting forth the
Purchase Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment.
14. NOTICES OF RECORD DATE, ETC. In the event of
(a) any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares or stock of any class or
any other securities or property, or to receive any other right,
(b) any reclassification of the capital stock of the Company,
capital reorganization of the Company, consolidation or merger involving the
Company, or sale or conveyance of all or substantially all of its assets, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, then and in each such event the Company will mail or
cause to be mailed to the Holder a notice specifying (i) the date on which any
such 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 date on which any such reclassification, reorganization,
consolidation, merger, sale or conveyance, 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 in respect of such event are to be determined. Such notice
shall be mailed at least 20 days prior to the date specified in such notice on
which any such action is to be taken.
15. AMENDMENT. The terms of this Warrant may be amended, modified or
waived only with the written consent of the Company and the Holder.
16. WARRANT REGISTER; TRANSFERS, ETC.
A. The Company will maintain a register containing the name and
address of the registered Holder of the Warrant. The Holder may change
its address as shown on the warrant register by written notice to the
Company requesting such change. Any notice or written communication
required or permitted to be given to the holder may be given by
certified mail or delivered to the Holder at its address as shown on the
warrant register.
B. In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall issue a new warrant of like tenor and
denomination and deliver the same (i) in exchange and substitution for
and upon surrender and cancellation of any mutilated Warrant, or (ii) in
lieu of any Warrant lost, stolen or destroyed, upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft or destruction
of such Warrant (including a reasonably detailed affidavit with respect
to the circumstances of any loss, theft or destruction) and of indemnity
reasonably satisfactory to the Company, provided
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however, that so long as Zero Stage Capital V, L.P. is the registered
holder of this Warrant, no indemnity shall be required other than its
written agreement to indemnify the Company against any loss arising from
the issuance of such new warrant.
17. NO IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or through any reclassification, capital
reorganization, consolidation, merger, sale or conveyance of assets,
dissolution, liquidation, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder.
18. NON-TRANSFERABILITY. This Warrant shall not be transferable except
pursuant to a bankruptcy, reorganization, liquidation, or other event affecting
the status of the holder as a going concern.
19. GOVERNING LAW. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the State of
New Hampshire.
20. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of the holder's
successors, legal representatives and permitted assigns.
21. BUSINESS DAYS. If the last or appointed day for the taking of any
action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday in New Hampshire, then such action may be
taken or right may be exercised on the next succeeding day which is not a
Saturday or Sunday or such a legal holiday.
Dated: 1996 SILKNET SOFTWARE, INC.
(Corporate Seal) By:
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Attest: Title:
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Subscription
To: Date:
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The undersigned hereby subscribes for shares of Common Stock overed
by this Warrant. The manner of payment of the exercise price of this Warrant is
as follows: . The certificate(s) for such shares shall be
issued in the name of the undersigned or as otherwise indicated below:
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Signature
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Name for Registration
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Mailing Address
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Net Issue Election Notice
To: Date:
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The undersigned hereby elects under Section 4 to surrender the right to
purchase shares of Common Stock pursuant to this Warrant. The certificate(s) for
the shares issuable upon such net issue election shall be issued in the name of
the undersigned or as otherwise indicated below.
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Signature
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Name for Registration
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Mailing Address
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