EXHIBIT 4.3
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 MAYBE SOLD, DISTRIBUTED,
ASSIGNED, OFFERED, PLEDGED OYmelda R. Del RosarioFinancial Printing GroupTHIS
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 MAYBE 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 TRANSFERRED IS EFFECTED IN ACCORDANCE WITH THE
TERMS SET FORTH IN THIS WARRANT.
LXN CORPORATION October 5, 2000
COMMON 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 LXN Corporation, a
Delaware corporation (the "COMPANY"), in whole or from time to time in part, up
to __________ _______ fully paid and nonassessable shares of Common Stock
Purchase Warrant of the Company ("WARRANT STOCK") at a purchase price per share
of $10.00 (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.
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 forth 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 the conversion of this Warrant.
B = the Exercise Price for one share of Warrant Stock as to which
this Warrant is being converted.
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X = the number of shares of Warrant Stock as to which this Warrant is
being converted.
If the 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 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 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 Company 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
(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 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 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.
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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 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; provided, however, that Holder
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may transfer all or part of this Warrant to its affiliates,
including, without limitation, Imperial Bancorp, at any time
without notice to the Company and without any legal opinion, and
such affiliate shall then be entitled to all the rights of Holder
under this Warrant and any related agreements, and the Company
shall cooperate fully in ensuring that any stock issued upon
exercise of this warrant is issued in the name of the affiliate
that exercises the Warrant. 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 the
Company's Board of Directors at the request of the Managing
Underwriter, with such period not 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.
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(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 assurance that a public market will ever
exist for the Company's securities.
(e) Legends: 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.
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 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 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 Conversions, 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 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
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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. Representation 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 (other than transfers to
Holder's affiliates); (ii) the entire legal and beneficial interest of the
Securities is being purchased for, and will be held for the account of, Holder
or its affiliates only and neither in whole nor in part for any other person;
(iii) Hold 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
(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 the delivery of the Warrant
Stock or Conversion Stock and the performance of the Company's
obligations hereunder has been taken.
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 o appropriate in order to protect the rights of the
holder of the Warrant against impairment.
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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 Fifth
Amended and Restated Registration Rights Agreement dated October 5,
2000.
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 X. Xxxxxxxxxx, President
HOLDER BANK
By: __________________________________
Name: _________________________________
Title: ______________________________
(SIGNATURE PAGE TO WARRANT FOR LXN COMMON STOCK PURCHASE WARRANT)
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NOTICE OF EXERCISE
To: LXN Corporation, a Delaware corporation
1. The undersigned hereby elects to purchase _____________ shares of Common
Stock Purchase Warrant 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 aforementioned 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 intentions 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)
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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 Common Stock
of LXN Corporation, into such number of shares of Common 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)
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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
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whose address is
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Dated:
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Holder's Signature:
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Holder's Address:
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Guaranteed Signature:
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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 action 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:
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Date:
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