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Exhibit 4.5
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT
BE SOLD OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR SOME OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS IS
AVAILABLE WITH RESPECT THERETO.
PREFERRED STOCK PURCHASE WARRANT
Warrant No. _________
Series A Preferred Stock
MARIMBA, INC.
Void after January 31, 2004
1. PRICE, QUANTITY AND TERM
X. XXXXX. This Warrant certifies that for value received
(including the execution and delivery of a Master Equipment Lease Agreement
between Company and Holder (collectively with any and all term loan promissory
notes and other financial accommodations, the "Lease")) LIGHTHOUSE CAPITAL
PARTNERS II, L.P., a Delaware limited partnership ("Lighthouse"), and its
registered assigns (collectively, "Holder"), are entitled at any time, and from
time to time, before Expiration, to purchase from Company up to 16,865 shares
(the "Exercise Quantity") of Company's Series A Preferred Stock ("Preferred
Stock"), at a price of $1.4824 per share (the "Exercise Price"), plus the Second
Tranche Shares, as hereinafter defined. If the total amounts initially advanced
under the Lease exceed $500,000, then on that date (the "Drawdown Date") this
Warrant shall additionally and automatically be exercisable for that number of
Warrant Shares (the "Second Tranche Shares") equal to $25,000 divided by the
Second Tranche Exercise Price, at a price per share equal to the Second Tranche
Exercise Price. "Second Tranche Exercise Price" means $1.4824; provided,
however, that if Company sells preferred stock for cash in a round of venture
capital financing resulting in net aggregate proceeds to Company exceeding
$5,000,000 (the "Next Round") before the exercise or conversion hereof, the
Second Tranche Exercise Price will be determined as follows: Subtract $1.4824
(the "Current Round Price") from the average price per share sold in the Next
Round (the "Next Round Price"), divide the result by the number of days between
August 8, 1996 (the "Current Round Close"), and the closing date of the Next
Round (the "Next Round Close"), multiply that result by the number of days
between the Current Round Close and the Drawdown Date and add the Current Round
Price to yield the Second Tranche Exercise Price; provided that the Second
Tranche Exercise Price shall not be higher than the Next Round Price, and if the
Next Round Price is less than or equal to the Current Round Price, the Second
Tranche Exercise Price is the Next Round Price. The term "Warrant Shares" means
Preferred Stock and the shares of any class of securities resulting from any
reclassifications of Preferred Stock, including a conversion to Common Stock, or
from any event described in SECTION 10 or SECTION 11. References to "Common
Stock" include any present or future class of Company's capital stock whose
holders are not limited to a fixed percentage or sum with respect to dividends
or liquidation proceeds, unless the context otherwise requires. References to
Exercise Quantity and Exercise Price include the Second Tranche Shares and the
Second Tranche Exercise Price, and the provisions hereof shall be applied
logically, consistently and fairly with respect to any differences between the
Exercise Price and the Second Tranche Exercise Price, unless the context
requires otherwise.
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2. PAYMENT. Warrant Shares may be purchased (i) in cash or by check,
(ii) by the surrender by Holder to Company of any promissory notes or other
obligations issued by Company, with Holder credited an amount equal to the
principal plus accrued interest, or (iii) by any combination of the foregoing.
3. NET ISSUE ELECTION. Holder may elect to convert all or a portion
hereof into Warrant Shares, without the payment of any additional consideration,
by the surrender of this Warrant or such portion to Company, with the net issue
election notice annexed hereto duly executed, at the principal office of
Company. Thereupon, Company shall issue to Holder such number of fully paid and
nonassessable Warrant Shares as is computed using the following formula:
X = Y (A-B)
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A
where: X = the number of Warrant Shares to be issued to Holder
pursuant to this Section 3.
Y = Exercise Quantity
A = the Fair Market Value of one Warrant Share.
B = the Exercise Price.
4. FAIR MARKET VALUE. Fair Market Value of a share of Preferred Stock is
the Fair Market Value of a share of Common Stock multiplied by the number of
shares of Common Stock into which Preferred Stock may then be converted. "Fair
Market Value" of a share of Common Stock as of a particular date means: (a) if
traded on an exchange or quoted on the NASDAQ National Market System, then the
average of the closing prices for the five (5) days prior to the date of the
Holder's notice of exercise, (b) if conversion or exercise is on a date from the
filing of, through to the effective date of, the registration statement for an
underwritten public offering registered under the Securities Act, the initial
public offering price (before deducting commissions, discounts or expenses) per
share sold in such offering, (c) if listed by the National Daily Quotation
Service "Pink Sheets," then the average of the most-recently reported bid and
ask prices for the ten (10) day period ending two (2) days prior to the day the
fair market value is being determined, and (d) otherwise, the price, not less
than book value, determined in good faith and in such reasonable manner as
prescribed by a majority of Company's Directors; provided, however, that (i)
Company will notify Holder of such price within ten business days after Holder
provides the Company written notice of its election; (ii) Holder will have ten
business days after receipt of such notice to dispute such price by written
notice to Company; and (iii) Holder will thereafter appoint an appraiser
reasonably acceptable to Company to determine Fair Market Value, the costs of
which Company will bear if the appraisal is 110% or more of that determined by
the Outside Directors.
5. PARTIAL EXERCISE. This Warrant may be exercised or converted in part,
and Holder shall be entitled to receive a new warrant, which shall be dated as
of the date of this Warrant, covering the number of Warrant Shares in respect of
which this Warrant shall not have been exercised.
6. FRACTIONAL SHARES. If a fractional Warrant Share would be issuable
upon exercise or conversion, Company will instead pay in cash a sum equal to the
product of such fraction and a full Warrant Share's Fair Market Value.
7. EXPIRATION DATE; ACCELERATION OF TERM UPON SALE OF THE COMPANY;
AUTOMATIC EXERCISE.
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(a) EXPIRATION DATE. This Warrant shall expire at the close of
business on January 31, 2004, and shall be void thereafter. Notwithstanding the
foregoing, this Warrant shall automatically be converted pursuant to SECTION 3
hereof, without any action by Holder, immediately before Expiration.
(b) ACCELERATION OF TERM UPON SALE OF THE COMPANY.
Notwithstanding the term of this Preferred Stock Purchase Warrant fixed pursuant
to SECTION 7(a) hereof and provided Holder has received reasonable advanced
notice and has not earlier converted, this Warrant shall automatically be
converted pursuant to SECTION 3 hereof, without any action by Holder upon the
closing of a sale of all or substantially all of the Company's assets, or the
merger or consolidation of the Company with or into another corporation (other
than a merger or consolidation for the principal purpose of changing the
domicile of Company), whereby the Company's stockholders immediately prior to
such merger or consolidation will hold less than 50% of the outstanding
securities of the surviving corporation immediately following such merger or
consolidation (a "Sale of the Company").
8. RESERVED SHARES; VALID ISSUANCE. Company covenants that it will at
all times from and after the date hereof reserve and keep available such number
of its authorized capital stock, free from all preemptive or similar rights
therein, as will be sufficient to permit the exercise of this Warrant in full
and the conversion into shares of Common Stock of all Warrant Shares receivable
upon such exercise. Company further covenants that such shares as may be issued
pursuant to such exercise or conversion 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; provided, however, that the Warrant shares
shall be subject to the Company's right of first refusal as provided in the
Company's Bylaws.
9. REGISTRATION RIGHTS. The Company hereby grants Holder and holders of
the Warrant Shares the "piggyback" registration rights set forth in Section 1.3
of the Investor Rights Agreement made as of August 8, 1996, as amended to date,
by and among Company and certain holders of Company's securities (the
"Registration Rights Agreement"). Company will not consent to any amendment of
the Registration Rights Agreement with respect to such "piggyback" registration
rights that would impair, subordinate or diminish such rights of Holder or
holders of Warrant Shares in relation to such rights of other Series A Preferred
Stock holders who are parties to the Registration Rights Agreement.
Notwithstanding anything to the contrary in the Registration Rights Agreement,
such "piggyback" registration rights of Holder shall be fully and completely
transferable with this Warrant and the Warrant Shares subject to the terms of
SECTION 16E hereof.
10. CAPITALIZATION.
A. SUBDIVISION OR COMBINATION. If Company subdivides or combines,
by reclassification, stock split or dividend, or otherwise, the number of
Warrant Shares outstanding into a greater or lesser number, simultaneously in
each such case the Exercise Price and the Exercise Quantity shall both be
proportionately adjusted.
B. CAPITALIZATION. If Company recapitalizes, or reorganizes or
reclassifies its capital stock, this Warrant shall thereafter be exercisable or
convertible for those shares of stock, other securities or property which a
holder of the Exercise Quantity of Warrant Shares could have received thereupon,
as further adjusted according to the terms hereof.
C. DISTRIBUTIONS. If Company declares, pays or distributes any
dividends payable in shares of its capital stock, then (i) the Exercise price
shall be adjusted, from and after the date of determination of stockholders
entitled to receive such dividend, to that price determined by multiplying the
Exercise Price in effect immediately prior to such dividend by a fraction, (x)
the numerator of which shall be the total number of shares of capital stock
outstanding immediately prior to such dividend and (y) the denominator of which
shall be the total
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number of shares of capital stock outstanding immediately after such dividend
and (ii) the number of Warrant Shares subject to this Warrant shall be
proportionately adjusted.
11. ANTIDILUTION RIGHTS. As of the date of this Warrant there are no
price-based antidilution rights applicable to the Series A Preferred Stock and
the Common Stock of Company. If, after the date hereof, price-based antidilution
rights are granted to the Series A Preferred Stock such rights shall also be
granted to the Holder of this Warrant. Company shall promptly provide Holder
hereof with any restatement, amendment or modification to the Articles promptly
after the same has been made.
12. CERTIFICATE OF ADJUSTMENT. Whenever the Exercise Price is adjusted,
as herein provided, Company shall promptly deliver to Holder a certificate of
Company's chief financial officer setting forth the Exercise Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment.
13. NOTICES OF RECORD DATE, ETC. In the event of:
A. any taking by 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, sell or otherwise acquire or dispose of any shares of
stock of any class or any other securities or property, or to receive any other
right;
B. any reclassification of the capital stock of Company, capital
reorganization of Company, consolidation or merger involving 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 Company;
then in each such event Company will provide or cause to be provided to Holder a
written notice thereof. Such notice shall be provided at least twenty (20) days
prior to the date specified in such notice on which any such action is to be
taken.
14. REPRESENTATIONS, WARRANTIES AND COVENANTS. This Warrant is issued
and delivered by Company and accepted by each Holder on the basis of the
following representations, warranties and covenants made by Company:
A. Company has all necessary authority to issue, execute and
deliver this Warrant and to perform its obligations hereunder. This Warrant has
been duly authorized issued, executed and delivered by Company and is the valid
and binding obligation of Company, enforceable in accordance with its terms.
B. The Warrant Shares issuable upon the exercise of this Warrant
have been duly authorized and reserved for issuance by Company and, when issued
in accordance with the terms hereof, will be validly issued, fully paid and
nonassessable.
C. The issuance, execution and delivery of this Warrant do not,
and the issuance of the Warrant Shares upon the exercise of this Warrant in
accordance with the terms hereof will not, (i) violate or contravene Company's
Articles or by-laws, or any law, statute, regulation, rule, judgment or order
applicable to Company, (ii) violate, contravene or result in a material breach
or default under any contract, agreement or instrument to which Company is a
party or by which Company or any of its assets are bound or (iii) require the
consent or approval of or the filing of any notice or registration with any
person or entity, except for the filing pursuant to Section 25102(f) of the
California Corporate Securities Law of 1968, as amended, and the rules
thereunder.
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D. As long as this Warrant is, or all of the Warrant Shares
issued upon exercise of this Warrant or any shares of Common Stock issued upon
conversion of such Warrant Shares are, issued and outstanding and held by
Lighthouse, Company will provide to Lighthouse the financial and other
information described in that certain Lease Line Schedule No. 01 to Master
Equipment Lease Agreement No. 152 between Company and Lighthouse Capital
Partners II, L.P. dated as of January 15, 1997; provided, however, that no such
information shall be provided to Lighthouse pursuant to this subparagraph 14(D)
(i) after the sale of securities pursuant to a registration statement filed by
Company under the Securities Act of 1933, as amended, in connection with the
firm commitment underwritten offering of its securities to the general public is
consummated or (ii) when Company first becomes subject to the periodic reporting
requirements of Sections 12(g) or 15(d) of the Exchange Act of 1934, or (iii)
Lighthouse is no longer Holder, whichever event shall first occur.
E. As of the date hereof, the authorized capital stock of Company
consists of (i) 20,000,000 shares of Common Stock, of which 10,000,000 shares
are issued and outstanding and 33,730 shares are reserved for issuance upon the
exercise of this Warrant and the conversion of the Preferred Stock, and (ii)
3,750,000 shares of Series A Preferred Stock, of which 2,765,870 are issued and
outstanding shares and 33,730 shares are reserved for issuance upon the exercise
of this Warrant.
15. AMENDMENT. The terms of this Warrant may be amended, modified or
waived only with the written consent of Holder and the Company.
16. REPRESENTATIONS AND COVENANTS OF HOLDER. This Preferred Stock
Purchase Warrant has been entered into by Company in reliance upon the following
representations and covenants of Holder, which by its execution hereof Holder
hereby confirms:
A. INVESTMENT PURPOSE. The right to acquire Preferred Stock or
the Preferred Stock issuable upon exercise of Holder's rights contained herein
will be acquired for investment and not with a view to the sale or distribution
of any part thereof, and Holder has no present intention of selling or engaging
in any public distribution of the same except pursuant to a registration or
exemption.
B. ACCREDITED INVESTOR. Holder is an "accredited investor" within
the meaning of the Securities and Exchange Rule 501 of Regulation D, as
presently in effect.
C. PRIVATE ISSUE. Holder understands (i) that the Warrant and the
Warrant Shares have not been registered under the 1933 Act or qualified under
applicable state securities laws on the ground that the issuance contemplated by
this Warrant will be exempt from the registration and qualifications
requirements thereof, pursuant to Section 4(2) of the 1933 Act, and (ii) that
Company's reliance on such exemption is predicated on the representations set
forth in this SECTION 16.
D. FINANCIAL RISK. Holder has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of its investment and has the ability to bear the economic risks of its
investment.
E. DISPOSITION OF SHARES. Holder hereby agrees that Holder shall
make no disposition of this Warrant, and the shares issued upon exercise of this
Warrant (the "Warrant Shares"), unless (a) the Holder has first provided such
notice to the Company of its intended disposition as required under Article IX
of the Company's Bylaws and the Company or its assignee(s) elect not to acquire
this Warrant or the Warrant Shares pursuant to the right of first refusal
granted to the Company thereunder and (b) the Holder shall have provided Company
with written assurances, in form and substance satisfactory to Company, that (i)
the proposed disposition does not require registration of the Warrant or Warrant
Shares under the 1933 Act, or (ii) all appropriate action
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necessary for compliance with the registration requirements of the 1933 Act or
of any exemption from registration available under the 1933 Act (including Rule
144) has been taken.
F. RESTRICTIVE LEGENDS. In order to reflect the restrictions on
disposition of the Warrant Shares, the stock certificates for the Warrant Shares
will be endorsed with the following restrictive legends:
(i) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND ARE
"RESTRICTED SECURITIES" AS DEFINED IN RULE 144 PROMULGATED UNDER THE ACT. THE
SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED EXCEPT (i) IN
CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE ACT OR (ii) IN COMPLIANCE WITH RULE 144 OR (iii) PURSUANT TO AN OPINION OF
COUNSEL, SATISFACTORY TO COMPANY, THAT REGISTRATION OR COMPLIANCE IS NOT
REQUIRED AS TO SUCH SALE, OFFER, PLEDGE OR HYPOTHECATION."
(ii) "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A MARKET STAND-OFF AGREEMENT THAT RESTRICTS THE TRANSFER OF THESE
SHARES. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST OF THE
SECRETARY OF COMPANY.
(iii) "These securities are subject to a right of first
refusal in favor of the Company, the provisions of which are set forth in the
Company's Bylaws".
(iv) Any legend required by the laws of the State of
California, including any legend required by the California Department of
Corporations and Sections 417 and 418 of the California Corporations Code.
(v) Any other legend deemed necessary to reflect the
restrictions on the transfer of the Warrant Shares.
17. CALIFORNIA COMMISSIONER OF CORPORATIONS. THE SALE OF THE SECURITIES
THAT ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH
SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF
SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE
CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS
SO EXEMPT.
18. PRIVILEGE OF STOCK OWNERSHIP. Prior to the exercise of this Warrant,
except as otherwise provided herein, Holder shall not be entitled to, by virtue
of holding this Warrant, any rights of a stockholder of Company, including
(without limitation) the right to vote, receive dividends or other
distributions, or exercise preemptive rights.
19. MARKET STAND-OFF. Holder hereby agrees that, during the period of
duration specified by Company and an underwriter of common stock or other
securities of Company, following the date of the first sale to the public
pursuant to a registration statement of Company filed under the 1933 Act (a
"Registered Offering"), it shall not, to the extent requested by Company and
such underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donee who agree to be similarly
bound) any securities of Company held by it at any time during such period
except common stock included in such registration; provided, however, that:
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(a) all officers and directors of Company enter into similar
agreements and that the Company will not consent to any amendment of the
Investor Rights Agreement dated August 8, 1996, with respect to Section 1.14
that would impair, subordinate or diminish the rights of Holder or holders of
Warrant Shares in relation to the rights of other Series A Preferred Stock
holders who are parties to the Investor Rights Agreement; and
(b) such market stand-off time period shall not extend past the
date which is one hundred eighty (180) days after a Registered Offering; and
(c) such market stand-off agreement shall only apply to the first
two Registered Offerings.
20. NOTICES, TRANSFERS, ETC.
A. Any notice or written communication required or permitted to
be given to Holder may be given by certified mail or delivered to Holder at the
address most recently provided by Holder to Company.
B. Subject to SECTION 16 (E) hereof and in compliance with
applicable federal and state securities laws, and to Holder's obtaining
Company's prior written consent, which consent shall not be unreasonably
withheld, this Warrant may be transferred by Holder with respect to any or all
of the shares purchasable hereunder, provided, such transfer will not be to a
direct competitor of the Company. Upon surrender of this Warrant to Company,
together with the assignment notice annexed hereto duly executed, for transfer
of this Warrant as an entirety by Holder, Company shall issue a new warrant of
the same denomination to the assignee. Upon surrender of this Warrant to
Company, together with the assignment hereof properly endorsed, by Holder for
transfer with respect to a portion of the Warrant Shares purchasable hereunder,
Company shall issue a new warrant to the assignee, in such denomination as shall
be requested by Holder hereof, and shall issue to such Holder a new warrant
covering the number of shares in respect of which this Warrant shall not have
been transferred.
C. In case this Warrant shall be mutilated, lost, stolen or
destroyed, 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 an affidavit of Holder or other evidence
reasonably satisfactory to Company of the loss, theft or destruction of such
Warrant
21. NO IMPAIRMENT. Company will not, by amendment of its Articles 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
of 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
Holders.
22. 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
California.
23. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon Company's
successors and assigns and shall inure to the benefit of Holder's successors,
legal representatives and permitted assigns.
24. BUSINESS DAYS. If the last or appointed day for the taking of any
action required of the expiration of any rights granted herein shall be a
Saturday or Sunday or a legal holiday in California, 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.
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25. VALUE. Company and Holder agree that the value of this Warrant on
the date of grant is $100.00.
Dated: February 11, 1997.
MARIMBA, INC.
By: /s/ XXX XXXXXX
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Name: Xxx Xxxxxx
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Title: President and CEO
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SUBSCRIPTION
To: Date:
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The undersigned hereby subscribes for Warrant Shares covered by this
Warrant. 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
NET ISSUE ELECTION NOTICE
To: Date:
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The undersigned hereby elects under SECTION 4 to surrender the right to
purchase __________ Warrant Shares pursuant to this Warrant. The certificate(s)
for such 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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ASSIGNMENT
For value received _____________________________ hereby sells, assigns
and transfers unto _____________________________________________________________
________________________________________________________________________________
[Please print or typewrite name and address of Assignee]
________________________________________________________________________________
the within Warrant, and does hereby irrevocably constitute and appoint
____________________ _____________________________ its attorney to transfer the
within Warrant on the books of the within named Company with full power of
substitution on the premises.
Dated:_____________________________
_____________________________
In the Presence of:
_____________________________
