EXHIBIT 10.9
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE STOCK
Corporation: Lionbridge Technologies, Inc.
Number of Shares: 75,000 Shares
Class of Stock: Common Stock
Initial Exercise Price: $1.81
Issue Date: June 28, 2001
Expiration Date: June 28, 2006
THIS WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for
other good and valuable consideration, SILICON VALLEY BANK ("Holder") is
entitled to purchase the number of fully paid and nonassessable shares of the
class of securities (the "Shares") of the corporation (the "Company") at the
initial exercise price per Share (the "Warrant Price") all as set forth above
and as adjusted pursuant to Article 2 of this Warrant, subject to the provisions
and upon the terms and conditions set forth in this Warrant.
EXERCISE.
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Method of Exercise. Holder may exercise this Warrant by delivering a duly
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executed Notice of Exercise in substantially the form attached as Appendix 1 to
the principal office of the Company. Unless Holder is exercising the conversion
right set forth in Section 1.2, Holder shall also deliver to the Company a check
for the aggregate Warrant Price for the Shares being purchased.
Conversion Right. In lieu of exercising this Warrant as specified in Section
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1.1, Holder may from time to time convert this Warrant, in whole or in part,
into a number of Shares determined by dividing (a) the aggregate fair market
value of the Shares or other securities otherwise issuable upon exercise of this
Warrant minus the aggregate Warrant Price of such Shares by (b) the fair market
value of one Share. The fair market value of the Shares shall be determined
pursuant to Section 1.3.
Fair Market Value. If the Shares are traded in a public market, the fair market
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value of the Shares shall be the closing price of the Shares (or the closing
price of the Company's stock into which the Shares are convertible) reported for
the business day immediately before Holder delivers its Notice of Exercise to
the Company. If the Shares are not traded in a public market, the Board of
Directors of the Company shall determine fair market value in its reasonable
good faith judgment. The foregoing notwithstanding, if Holder advises the Board
of Directors in writing that Holder disagrees with such determination, then the
Company and Holder shall promptly agree upon a reputable investment banking firm
to undertake such valuation. If the valuation of such investment banking firm is
greater than that determined by the Board of Directors, then all fees and
expenses of such investment banking firm shall be paid by the Company. In all
other circumstances, such fees and expenses shall be paid by Holder.
Delivery of Certificate and New Warrant. Promptly after Holder exercises or
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converts this Warrant, the Company shall deliver to Holder certificates for the
Shares acquired and, if this Warrant has not been fully exercised or converted
and has not expired, a new Warrant representing the Shares not so acquired.
Replacement of Warrants. On receipt of evidence reasonably satisfactory to the
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Company of the loss, theft, destruction or mutilation of this Warrant and, in
the case of loss, theft or destruction, on delivery of an indemnity agreement
reasonably satisfactory in form and amount to the Company or, in the case of
mutilation, on surrender and cancellation of this Warrant, the Company at its
expense shall execute and deliver, in lieu of this Warrant, a new warrant of
like tenor.
Assumption on Sale, Merger, or Consolidation of the Company.
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"Acquisition." For the purpose of this Warrant, "Acquisition" means any sale,
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license, or other disposition of all or substantially all of the assets of the
Company, or any reorganization, consolidation, or merger of the Company where
the holders of the Company's securities before the transaction beneficially own
less than 50% of the outstanding voting securities of the surviving entity after
the transaction.
Assumption of Warrant. Upon the closing of any Acquisition, the successor
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entity shall assume the obligations of this Warrant, and this Warrant shall be
exercisable for the same securities, cash, and property as would be payable for
the Shares issuable upon exercise of the unexercised portion of this Warrant as
if such Shares were outstanding on the record date for the Acquisition and
subsequent closing. The Warrant Price shall be adjusted accordingly.
ADJUSTMENTS TO THE SHARES.
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Stock Dividends Splits. Etc. If the Company declares or pays a dividend on its
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common stock payable in common stock or other securities, or subdivides the
outstanding common stock into a greater amount of common stock, then upon
exercise of this Warrant, for each Share acquired, Holder shall receive, without
cost to Holder, the total number and kind of securities to which Holder would
have been entitled had Holder owned the Shares of record as of the date the
dividend or subdivision occurred.
Reclassification, Exchange or Substitution. Upon any reclassification,
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exchange, substitution, or other event that results in a change of the number
and/or class of the securities issuable upon exercise or conversion of this
Warrant, Holder shall be entitled to receive, upon exercise or conversion of
this Warrant, the number and kind of securities and property that Holder would
have received for the Shares if this Warrant had been exercised immediately
before such reclassification, exchange, substitution, or other event. The
Company or its successor shall promptly issue to Holder a new Warrant for such
new securities or other property. The new Warrant shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 2 including, without limitation, adjustments to the
Warrant Price and to the number of securities or property issuable upon exercise
of the new Warrant. The provisions of this Section 2.2 shall similarly apply to
successive reclassifications, exchanges, substitutions, or other events.
Adjustments for Combinations, Etc. If the outstanding shares are combined or
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consolidated, by reclassification or otherwise, into a lesser number of shares,
the Warrant Price shall be proportionately increased.
No Impairment. The Company shall not, by amendment of its Certificate of
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Incorporation or through a reorganization, transfer of assets, consolidation,
merger, dissolution, issue, or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed under this Warrant by the Company, but shall at all times
in good faith assist in carrying out of all the provisions of this Article 2 and
in taking all such action as may be necessary or appropriate to protect Holder's
rights under this Article against impairment. If the Company takes any action
affecting the Shares or its common stock other than as described above that
adversely affects Holder's rights under this Warrant, the Warrant Price shall be
adjusted downward and the number of Shares issuable upon exercise of this
Warrant shall be adjusted upward in such a manner that the aggregate Warrant
Price of this Warrant is unchanged.
Fractional Shares. No fractional Shares shall be issuable upon exercise or
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conversion of the Warrant and the number of Shares to be issued shall be rounded
down to the nearest whole Share. If a fractional share interest arises upon any
exercise or conversion of the Warrant, the Company shall eliminate such
fractional share interest by paying Holder an amount computed by multiplying the
fractional interest by the fair market value of a full Share.
Certificate as to Adjustments. Upon each adjustment of the Warrant Price, the
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Company at its expense shall promptly compute such adjustment, and furnish
Holder with a certificate of its Chief Financial Officer setting forth such
adjustment and the facts upon which such adjustment is based. The Company
shall, upon written request, furnish Holder a certificate setting forth the
Warrant Price in effect upon the date thereof and the series of adjustments
leading to such Warrant Price.
REPRESENTATIONS AND COVENANTS OF THE COMPANY.
Representations and Warranties. The Company hereby represents and warrants to
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the Holder as follows:
The initial Warrant Price referenced on the first page of this Warrant is the
fair market value of the Shares as of the date of this Warrant.
All Shares which may be issued upon the exercise of the purchase right
represented by this Warrant, and all securities, if any, issuable upon
conversion of the Shares, shall, upon issuance, be duly authorized, validly
issued, fully paid and nonassessable, and free of any liens and encumbrances
except for restrictions on transfer provided for herein or under applicable
federal and state securities laws.
Information Rights. So long as the Holder holds this Warrant and/or any of the
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Shares, the Company shall deliver to the Holder (a) promptly but in any event
within five (5) days after mailing, copies of all reports, notices or other
written communications sent to the shareholders of the Company, (b) promptly,
but in any event within five (5) days of filing with The Securities and Exchange
Commission (the "SEC") or other governmental authority, copies of all reports
filed with the SEC or such other governmental authority (including without
limitation reports on Forms 10-K, 10-Q and 8-K)
MISCELLANEOUS.
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Term. This Warrant is exercisable, in whole or in part, at any time and from
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time to time on or before the Expiration Date set forth above.
Legends. This Warrant and the Shares shall be imprinted with a legend in
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substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION
IS NOT REQUIRED.
Compliance with Securities Laws on Transfer. This Warrant and the Shares
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issuable upon exercise of this Warrant may not be transferred or assigned in
whole or in part without compliance with applicable federal and state securities
laws by the transferor and the transferee (including, without limitation, the
delivery of investment representation letters and legal opinions reasonably
satisfactory to the Company, as reasonably requested by the Company). The
Company shall not require Holder to provide an opinion of counsel if the
transfer is to an affiliate of Holder or if there is no material question as to
the availability of current information as referenced in Rule 144(c), Holder
represents that it has complied with Rule 144(d) and (e) in reasonable detail,
the selling broker represents that it has complied with Rule 144(f), and the
Company is provided with a copy of Holder's notice of proposed sale.
Transfer Procedure. Subject to the provisions of Section 4.3, Holder may
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transfer all or part of this Warrant or the Shares issuable upon exercise of
this Warrant (or the securities issuable, directly or indirectly, upon
conversion of the Shares, if any) at any time to Silicon Valley Bancshares or
The Silicon Valley Bank Foundation, or to any affiliate of Holder, or, to any
other transferee by giving the Company notice of the portion of the Warrant
being transferred setting forth the name, address and taxpayer identification
number of the transferee and surrendering this Warrant to the Company for
reissuance to the transferees) (and Holder if applicable). Unless the Company
is filing financial information with the SEC pursuant to the Securities Exchange
Act of 1934, the Company shall have the right to refuse to transfer any portion
of this Warrant to any person who directly competes with the Company.
Notices. All notices and other communications from the Company to the Holder,
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or vice versa, shall be deemed delivered and effective when given personally or
sent via a nationally recognized overnight delivery service such as FedEx on a
prepaid priority delivery basis at such address as may have been furnished to
the Company or the Holder, as the case may be, in writing by the Company or such
holder from time to time. All notices to be provided under this Warrant shall be
sent to the following address:
Silicon Valley Bank
Attn: Treasury Department
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Waiver. This Warrant and any term hereof may be changed, waived, discharged or
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terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought.
Attorneys Fees. In the event of any dispute between the parties concerning the
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terms and provisions of this Warrant, the party prevailing in such dispute shall
be entitled to collect from the other party all costs incurred in such dispute,
including reasonable attorneys' fees.
Governing Law. This Warrant shall be governed by and construed in accordance
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with the laws of the State of Delaware, without giving effect to its principles
regarding conflicts of law.
"COMPANY"
LIONBRIDGE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Chief Financial Officer
