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Exhibit 4.7
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUED UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE AFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE WARRANT EVIDENCED
HEREBY IS NON-TRANSFERABLE.
NO. __ PIXAR __________, 1997
COMMON STOCK PURCHASE WARRANT
This certifies that, in connection with that certain Common Stock and
Warrant Purchase Agreement, dated February 23, 1997 (the "Purchase Agreement")
by and between PIXAR, a California corporation (the "Company"), and Disney
Enterprises, Inc., a Delaware corporation and wholly owned subsidiary of The
▇▇▇▇ Disney Company ("Disney"), and for other value received, Disney, 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 11:59 pm., Pacific Time,
on __________, 2002 (the "Expiration Time"), but not thereafter, to acquire from
the Company, in whole or from time to time in part, up to 750,000 fully paid and
nonassessable shares of Common Stock of the Company ("Common Stock") at a
purchase price per share (the "Exercise Price") as set forth in Section 1 below.
Such number of shares, type of security and Exercise Price are subject to
adjustment as provided herein, and all references to "Common Stock" and
"Exercise Price" herein shall be deemed to include any such adjustment or series
of adjustments.
1. EXERCISE PRICE
Subject to adjustments as provided herein, the Exercise Price per share of
Common Stock subject to this Warrant shall be equal to $[20.00/25.00 per share].
2. EXERCISE OF WARRANT
(a) The purchase rights represented by this Warrant are exercisable
by the registered holder hereof, in whole or in part, at any time from the date
hereof and up to and including 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 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(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 certified check or bank draft payable to
the order of the Company in an amount equal to the purchase price of the shares
thereby purchased or in accordance with the cashless exercise provision set
forth in Section 2(b)); 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 Common 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 Common Stock equal to the difference, if any, between
the number of shares of Common Stock subject hereto and the number of shares of
Common Stock as to which this Warrant is so exercised.
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(b) Notwithstanding any provisions herein to the contrary, if the
fair market value (as defined in Section 3 hereof) of one share of the Company's
Common Stock is greater than the Exercise Price (at the date of calculation as
set forth below), in lieu of exercising this Warrant for cash, the holder may
elect to receive shares equal to the value (as determined below) of this Warrant
(or the portion thereof being canceled) by surrender of this Warrant at the
principal office of the Company together with the properly endorsed Notice of
Exercise in which event the Company shall issue to the holder a number of shares
of Common Stock computed using the following formula:
X=Y (A-B)
--------
A
Where X = the number of shares of Common Stock to be issued to the
holder.
Y = the number of shares of Common Stock purchasable
under the Warrant or, if only a portion of the
Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such
calculation)
A = the fair market value of one share of the
Company's Common Stock (at the date of such
calculation)
B = Exercise Price (as adjusted to the date of such
calculation)
3. ISSUANCE OF SHARES
Certificates for shares purchased hereunder shall be delivered to the
holder hereof within a reasonable time (in no event exceeding ten (10) business
days) after the date on which this Warrant shall have been exercised in
accordance with the terms hereof. 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 of this Warrant. With respect to any fraction of a
share called for upon the exercise of this Warrant, an amount equal to such
fraction multiplied by the fair market value of a share of Common Stock on the
date of exercise shall be paid in cash or check to the holder of this Warrant
(fair market value shall be the average closing price of a share of Common Stock
on the NASDAQ National Market System (or any other stock exchange on which the
Common Stock is listed at the time of exercise) as listed in "The Wall Street
Journal" over the five consecutive business days immediately prior to surrender
of this Warrant pursuant to Section 2 above).
4. REPRESENTATIONS AND COVENANTS OF THE COMPANY
(a) No Liens, etc. The Company hereby represents and warrants that
all shares of Common Stock which may be issued upon the exercise of this Warrant
will, upon such exercise, 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) and not subject to preemptive or any similar rights of
the stockholders of the Company.
(b) Reservation of Stock. As soon as practicable after execution of
this Warrant, the Company will reserve sufficient authorized but unissued
securities to enable it to satisfy its obligations on exercise of this Warrant
and will, if necessary, reserve additional securities during the period in which
this Warrant may be exercised
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to satisfy its obligations hereunder. If at any time the Company's authorized
securities shall not be sufficient to allow the exercise of this Warrant, the
Company shall take such corporate action as may be necessary to increase its
authorized but unissued securities to be sufficient for such purpose.
(c) Furnish Information. The Company agrees to promptly deliver to
the holder of this Warrant copies of all financial statements, reports and proxy
statements which the Company shall have sent to its stockholders generally.
(d) Rule 144 and 144A. In order to permit the holder of the Warrant
to sell the Common Stock issuable upon exercise of the Warrant pursuant to Rule
144 or Rule 144A under the 1933 Act (or any successors to such rules), the
Company will comply with all rules and regulations of the Commission applicable
in connection with use of each of Rule 144 and Rule 144A (or any successors
thereto), including the timely filing of all reports with the Commission in
order to enable such holder, if it so elects, to utilize Rule 144 or Rule 144A.
5. NO RIGHTS AS SHAREHOLDERS
This Warrant does not entitle the holder hereof to any voting rights or
other rights as a shareholder of the Company prior to the exercise hereof.
6. TRANSFERABILITY
(a) Restrictions on Warrant. This Warrant is not transferable,
whether by sale, pledge or other disposition, voluntarily or by operation of law
or otherwise. Any transfer in violation hereof shall be void and the Warrant
shall terminate immediately upon any such purported transfer.
(b) Restrictions on Common Stock Issuable Upon Exercise. In no event
will the holder make a disposition of the Common Stock issuable upon exercise of
this Warrant unless and until (i) it shall have notified the Company of the
proposed disposition, and (ii) if requested by the Company, it shall have
furnished the Company with an opinion of counsel satisfactory to the Company and
its counsel to the effect that (A) appropriate action necessary for compliance
with the 1933 Act provisions relating to sale of an unregistered security has
been taken, or (B) an exemption from the registration requirements of the 1933
Act is available. Notwithstanding the foregoing, the restrictions imposed upon
the transferability of the Common Stock issuable on the exercise of this Warrant
shall terminate as to any particular share of Common Stock when (1) such
security shall have been sold without registration in compliance with Rule 144
under the 1933 Act, or (2) a letter shall have been issued to the holder at its
request by the staff of the Securities and Exchange Commission or a ruling shall
have been issued to the holder at its request by such Commission stating that no
action shall be recommended by such staff or taken by such Commission, as the
case may be, if such security is transferred without registration under the 1933
Act in accordance with the conditions set forth in such letter or ruling and
such letter or ruling specifies that no subsequent restrictions on transfer are
required, or (3) such security shall have been registered under the 1933 Act and
sold by the holder thereof in accordance with such registration.
(c) Restrictive Legend. The Company may place a legend describing,
in whole or in part, the restrictions imposed by sub-sections (a) and (b) to
this Section 6 on this Warrant, any replacement Warrant and on any certificate
representing the Common Stock issuable upon exercise of this Warrant. Whenever
such restrictions shall terminate, Disney or the holder of a share of Common
Stock issued upon exercise of this Warrant as to which such restrictions have
terminated shall be entitled to receive from the Company one or more new
certificates for such shares of Common Stock not bearing the restrictive legend.
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7. 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 of such cancellation and
reissuance.
8. 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.
9. ADJUSTMENT TO NUMBER AND TYPE OF SECURITIES, 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. If at any time after issuance of
the Warrant the outstanding shares of Common Stock are subdivided into a greater
number of shares (whether by stock dividend, stock split or otherwise) or the
Company declares or pays, without consideration, any right to acquire Common
Stock for no consideration, then the Exercise Price will be reduced
proportionately and the number of securities issued upon exercise of this
Warrant will be increased proportionately. Conversely, if the outstanding Common
Stock is consolidated into a smaller number of shares (whether by reverse stock
split or otherwise), then the Exercise Price will be increased proportionately
and the number of securities issued upon exercise of this Warrant will be
reduced proportionately.
(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 merger, consolidation or similar
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
hereof at any time after the consummation or effective date of such
Reorganization, shall receive, in lieu of that which would be issuable on such
exercise prior to the date of such Reorganization, the stock, other securities
and/or 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 (such new consideration to be subject to all further
adjustments called for during the term hereof). The provisions of this Section
9(b) shall apply to successive Reorganizations.
In the case of any such merger, consolidation or other similar
transaction, the successor corporation shall expressly assume the due and
punctual observance and performance of each and every covenant and condition of
this Warrant to be performed and observed by the Company and all of the
obligations and liabilities hereunder, subject to such modification as shall be
necessary to provide for adjustments of the type and number of securities
issuable upon exercise of this Warrant and the Exercise Price which shall be as
nearly equivalent as practicable to the adjustments provided for herein.
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(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 adjustment is based.
10. REPRESENTATIONS AND COVENANTS OF DISNEY.
This Warrant has been granted by the Company in reliance upon the
following representations and covenants of Disney:
(a) Investment Purpose. This Warrant and the Common Stock issuable
upon exercise of Disney's rights contained herein will be acquired for
investment for Disney's own account, and not as a nominee or agent and not with
a view to the distribution of any part thereof. Disney further represents that
it does not have any contract, undertaking agreement or arrangement with any
person to sell, transfer or grant participations to such person, or to any third
person, with respect to this Warrant.
(b) Private Issue. Disney understands (i) that the Warrant and the
Common Stock issuable upon exercise of this Warrant are not registered under the
Securities Act of 1933, as amended, (the "1933 Act"), or qualified under
applicable state securities laws on the ground that the issuance of this Warrant
will be exempt from the registration and qualifications requirements thereof,
and (ii) that the Company's reliance on such exemption is predicated on the
representations set forth in this Section 10.
(c) Sales of Common Stock. Disney acknowledges that in the event the
applicable requirements of Rule 144 are not met, registration under the 1933 Act
or compliance with another exemption from registration will be required for any
disposition of the Common Stock issuable upon exercise of this Warrant.
(d) Financial Risk. Disney 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) Accredited Investor. Disney is an "accredited investor" within
the meaning of Rule 501 of Regulation D promulgated under the 1933 Act.
11. GOVERNING LAW
This Warrant shall be governed by and construed in accordance with the
laws of the State of California applicable to contracts made and to be performed
wholly within such state.
12. COMPLETE AGREEMENT AND MODIFICATIONS
This Warrant and any documents referred to herein or executed
contemporaneously herewith constitute the Company's and Disney's entire
agreement with respect to the subject matter hereof and supersede all
agreements, representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the subject matter
hereof. This Warrant may not be amended, altered or modified except by a writing
signed by the Company and the holder of this Warrant.
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13. NOTICES
Except as otherwise provided herein, all notices under this Warrant shall
be in writing and shall be delivered by personal service, facsimile, courier
service promising overnight delivery or certified mail (if such service is not
available, then by first class mail), postage prepaid. Notices shall be
addressed as follows:
If to the holder of this Warrant: Disney Enterprises, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: Disney Enterprises, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Company: PIXAR
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
14. WAIVERS STRICTLY CONSTRUED
With regard to any power, remedy or right provided herein or otherwise
available to any party hereunder (i) no waiver or extension of time shall be
effective unless expressly contained in a writing signed by the waiving party;
and (ii) no alteration, modification or impairment shall be implied by reason of
any previous waiver, extension of time, delay or omission in exercise, or other
indulgence.
15. SEVERABILITY
The validity, legality or enforceability of the remainder of this Warrant
shall not be affected even if one or more of its provisions shall be held to be
invalid, illegal or unenforceable in any respect.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer.
Dated: __________, 1997 PIXAR
By: _________________________________
Name:
Title:
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NOTICE OF EXERCISE
To: PIXAR
(1) / / The undersigned hereby elects to purchase __________ shares of
Common Stock of PIXAR pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price in full.
/ / The undersigned hereby elects to purchase __________ shares of
Common Stock of PIXAR pursuant to the terms of the attached Warrant, and tenders
herewith as a "cashless exercise" the attached Warrant to purchase _________
shares of Common Stock.
(2) Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name as is specified below:
_____________________________________
(Name)
_____________________________________
(Address)
(3) 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.
__________________________________ ________________________________
(Date) (Signature)
