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 PREFERRED STOCK
Issue Date:
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Expiration Date:
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THIS WARRANT CERTIFIES THAT, for good and valuable consideration, receipt
of which is hereby acknowledged, __________________________, or its assigns
("Holder") is entitled to purchase __________________________ fully paid and
nonassessable shares of Series B Preferred Stock (the "Shares") of College
Xxxx.xxx (the "Company") at the initial exercise price per Share of $8.55 (the
"Warrant Price") as adjusted pursuant to Article 2 of this Warrant, subject to
the provisions and upon the terms and conditions set forth of this Warrant.
ARTICLE 1. EXERCISE
1.1 METHOD OF EXERCISE. At any time prior to the expiration or
termination of this Warrant, Holder may exercise this Warrant by delivering a
duly 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.
1.2 CONVERSION RIGHT. In lieu of exercising this Warrant as specified
in Section 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.
1.3 FAIR MARKET VALUE. The fair market value of Series B Preferred
Stock shall be (i) the price per share that the Company received for the sale of
Preferred Stock occurring most recently prior to the Holder's exercise of this
Warrant, or (ii) if the exercise is made in contemplation of an initial public
offering of stock ("IPO"), then the mid-point of the price range specified on
the Company's preliminary prospectus for the IPO.
1.4 DELIVERY OF CERTIFICATE AND NEW WARRANT. Promptly after Holder
exercises or 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
in substantially identical form representing the Shares not so acquired. The
foregoing notwithstanding, after the conversion of the Company's outstanding
Series B Preferred Stock pursuant to ARTICLE XXXXXX, Xxxxxxx X0(x) of the
Company's Certificate of Incorporation, this Warrant shall be exercisable for
shares of the Company's Common Stock only and any Common Stock issued upon
exercise of this Warrant shall be deemed "Shares" for all purposes hereunder.
1.5 REPLACEMENT OF WARRANTS. On receipt of evidence reasonably
satisfactory to the 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, or surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant in substantially identical form.
1.6 TERMINATION ON SALE, MERGER, OR CONSOLIDATION OF THE COMPANY.
1.6.1 "ACQUISITION". For the purpose of this Warrant,
"Acquisition" means any sale 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.
1.6.2 TERMINATION ON ACQUISITION. This Warrant shall terminate,
if not earlier exercised, in the event of an Acquisition. In the event the
Company is proposed to be acquired, in addition to the notice requirements of
Section 3.2 hereof, the Company shall provide the Holder with all information
with respect to the Acquisition that is otherwise provided to shareholders of
the Company at such time and from time to time during the pendency of the
Acquisition, including (but not limited to) the proposed price to be paid in the
proposed Acquisition. The Holder shall have the right to exercise this Warrant
on or prior to the closing date with respect to the proposed Acquisition; if the
Warrant is not exercised on or prior to such closing date, the Warrant shall
expire upon the occurrence of the closing of the Acquisition.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 STOCK DIVIDENDS, SPLITS, ETC.
(A) If the Company declares or pays a dividend on its
common stock (or the Shares if the Shares are securities other than common
stock) payable in common stock, or other securities, subdivides the outstanding
common stock into a greater amount of common stock, or;
(B) if the Shares are securities other than common
stock, subdivides the Shares in a transaction that increases the amount of
common stock into which the Shares are convertible, 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
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entitled had Holder owned the Shares of record as of the date the dividend or
subdivision occurred.
2.2 RECLASSIFICATION, EXCHANGE OR SUBSTITUTION. Upon any
reclassification, 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.
2.3 ADJUSTMENTS FOR COMBINATIONS, ETC. If the outstanding
Shares are combined or consolidated, by reclassification or otherwise, into a
lesser number of shares, the Warrant Price shall be proportionately increased
and the number of Shares issuable upon exercise of this Warrant shall be
proportionately decreased.
2.4 NO IMPAIRMENT. The Company shall not, by amendment of its
Certificate of 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.
2.5 FRACTIONAL SHARES. No fractional Shares shall be issuable
upon exercise or 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 the Holder an amount
computed by multiplying the fractional interest by the fair market value of a
full Share.
2.6 CERTIFICATE AS TO ADJUSTMENTS. Upon each adjustment of the
Warrant Price, the Company at its expense shall promptly compute such
adjustment, and furnish Holder with a certificate of an officer of the Company
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.
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ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants to the Holder that 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
in accordance with the terms of this Warrant, 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.
3.2 NOTICE OF CERTAIN EVENTS. If the Company proposes at any
time (a) to declare any dividend or distribution upon its common stock, whether
in cash, property, stock, or other securities and whether or not a regular cash
dividend; (b) to offer for subscription pro rata to the holders of any class or
series of its stock any additional shares of stock of any class or series or
other rights; (c) to effect any reclassification or recapitalization of common
stock; or (d) to merge or consolidate with or into any other corporation, or
sell, lease, license, or convey all or substantially all of its assets, or to
liquidate, dissolve or wind up, then, in connection with each such event, the
Company shall give Holder (1) at least twenty (20) days prior written notice of
the date on which a record will be taken for such dividend, distribution, or
subscription rights (and specifying the date on which the holders of common
stock will be entitled thereto) or for determining rights to vote, if any, in
respect of the matters referred to in (c) and (d) above; and (2) in the case of
the matters referred to in (c) and (d) above at least twenty (20) days prior
written notice of the date when the same will take place (and specifying the
date on which the holders of common stock will be entitled to exchange their
common stock for securities or other property deliverable upon the occurrence of
such event).
ARTICLE 4. REPRESENTATIONS OF HOLDER.
In connection with the proposed purchase of the Warrant, Holder hereby
represents as follows:
4.1 INVESTMENT. Holder is purchasing the Warrant and/or the
Shares for its own account for investment purposes only and not with a view to,
or for the resale in connection with, any "distribution" thereof for purposes of
the Securities Act of 1933, as amended (the "Securities Act").
4.2 KNOWLEDGE. Holder is aware of the Company's business
affairs and financial condition, and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision to acquire the
Warrant.
4.3 REGISTRATION. Holder understands that the Warrant has not
been registered under the Securities Act in reliance upon a specific exemption
therefor, which exemption depends upon, among other things, the bona fide nature
of Holder's investment intent as expressed herein. In this connection, Holder
understands that, in the view of the Securities and Exchange Commission ("SEC"),
the statutory basis for such exemption may be unavailable if Holder's
representation was predicated solely upon a present intention to hold this
Warrant and/or the Shares for the minimum capital gains period specified under
tax statutes, for a
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deferred sale, for or until an increase or decrease in the market price of the
Warrant and/or the Shares, or for a period of one year or any other fixed period
in the future. Holder further understands that the Warrant and/or the Shares
must be held indefinitely unless subsequently registered under the Securities
Act or unless an exemption from registration is otherwise available. Moreover,
Holder understands that the Company is under no obligation to register the
Warrant. In addition, Holder understands that the certificates evidencing the
Warrant and the Shares will be imprinted with the legend referred to in the
Warrant.
4.4 RULE 144.
4.4.1 RESALE CONDITIONS. Holder is aware of the provisions of
Rule 144, promulgated under the Securities Act, which, in substance, permit
limited public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof (or from an affiliate of such issuer), in a
non-public offering subject to the satisfaction of certain conditions, if
applicable, including, among other things: (i) the availability of certain
public information about the Company; (ii) the resale occurring not less than
one (1) year after the party has purchased and paid for the securities to be
sold; (iii) the sale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Warrant Exchange Act of 1934) and the amount of securities
being sold during any three-month period not exceeding the specified limitations
stated therein.
4.4.2 RESALE RESTRICTIONS. Holder further understands that at
the time it wishes to sell the Warrant and/or the Shares there may be no public
market upon which to make such a sale, and that, even if such a public market
upon which to make such a sale then exists, the Company may not be satisfying
the current public information requirements of Rule 144, and that, in such
event, Holder may be precluded from selling the Warrant and/or the Shares under
Rule 144 even if the one-year minimum holding period had been satisfied.
4.5 NON-RULE 144 EXEMPTION. Holder further understands that in the
event all of the requirements of Rule 144 are not satisfied, registration under
the Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144 is
not exclusive, the staff of the SEC has expressed its opinion that persons
proposing to sell private placement securities other than in a registered
offering and otherwise than pursuant to Rule 144 will have a substantial burden
of proof in establishing that an exemption from registration is available for
such offers or sales, and that such persons and their respective brokers who
participate in such transactions do so at their own risk.
ARTICLE 5. MISCELLANEOUS.
5.1 TERM. This Warrant is exercisable, in whole or in part, at any
time and from time to time on or before the Expiration Date set forth above.
5.2 LEGENDS. This Warrant and the Shares (and the securities
issuable, directly or indirectly, upon conversion of the Shares, if any) shall
be imprinted with a legend in substantially the following form:
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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.
5.3 COMPLIANCE WITH SECURITIES LAWS ON TRANSFER. This Warrant and the
Shares issuable upon exercise of this Warrant (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) 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 without
consideration 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 in compliance with Rule 144(h).
5.4 TRANSFER PROCEDURE. This Warrant and all rights hereunder may not
be transferred by the Holder, except to one or more subsidiaries, affiliates or
successors to all the business of the Holder, or to the underwriters in
connection with a public offering of equity securities by the Company. Subject
to the provisions of Section 5.3, Holder may transfer all or any of the Shares
issued upon exercise of this Warrant (or the securities issuable, directly or
indirectly, upon conversion of the Shares, if any) by giving the Company notice
of the Shares being transferred, setting forth the name, address and taxpayer
identification number of transferees and surrendering the certificate(s) for the
Shares being transferred to the Company for reissuance to the transferee(s) (and
Holder if applicable).
5.5. NO RIGHTS AS STOCKHOLDERS. Except as provided herein, this
Warrant does not entitle the Holder to any voting rights as a stockholder of the
Company prior to the exercise of this Warrant.
5.6 NOTICES. All notices and other communications from the Company to
the Holder, or vice versa, shall be deemed delivered and effective when given
personally or mailed by first-class registered or certified mail, postage
prepaid, 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.
5.7 WAIVER. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
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5.8 ATTORNEYS FEES. In the event of any dispute between the parties
concerning the 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.
5.9 GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
its principles regarding conflicts of law.
COMPANY
College Xxxx.xxx
By:
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APPENDIX 1
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase _____________ shares of
the Series B Preferred Stock of College Xxxx.xxx pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of such
shares in full.
2. The undersigned hereby elects to convert the attached Warrant into
Shares in the manner specified in the Warrant. This conversion is exercised with
respect to ___________ of the Shares covered by the Warrant.
3. Please issue a certificate or certificates representing said
shares in the name of the undersigned or in such other name as is specified
below:
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(Name)
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-------------------------------
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(Address)
4. The undersigned represents it is acquiring the shares solely for
its own account and not as a nominee for any other party and not with a view
toward the resale or distribution thereof except in compliance with applicable
securities laws.
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(Signature)
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(Date)
SCHEDULE
NUMBER OF EXERCISE
WARRANTHOLDER DATE SHARES PRICE
------------- ---- ------ -----
Xxxxxxx, Xxxxx 06/08/99 1,517 $2.85
Xxxx & Xxxxx Xxxxxx 06/08/99 13,743 $2.85
Xxxxx, Xxxxxx 06/08/99 3,800 $2.85
Bry, P.B. 06/08/99 2,116 $2.85
Xxxxxxxxxx, Xxxxxxx 06/08/99 1,096 $2.85
Xxxxx, Xxxxx 06/08/99 3,643 $2.85
Cruttenden Xxxx 06/08/99 268,773 $3.42
Xxxx, Amar & Xxxxxxxx 06/08/99 916 $2.85
XxXxxxxxxx, Al 06/08/99 14,672 $2.85
XxXxxxxx, Xxxxx 06/08/99 734 $2.85
Xxxxxxxxxxx, Xxxxxx 06/08/99 1,810 $2.85
Xxxxx, Xxxxxxx & Xxxxx 06/08/99 728 $2.85
Xxxxxx Xxxx Ltd Family Part. 06/08/99 18,094 $2.85
Xxxxxxxx, Xxxxxx 06/08/99 733 $2.85
Xxxxxxxx, Xxxxx 06/08/99 1,896 $2.85
Xxxxx, Xxxxxx 06/08/99 1,892 $2.85
Xxxxxxxx Partners, L.P. 06/08/99 18,094 $2.85
Xxxxxxxx, Xxxxxxxxx 06/08/99 1,835 $2.85
J. Xxxxxxx Xxxxxxxxx (A&B Family 06/08/99 13,302 $2.85
Trust)
Xxxxxxxx, Xxxxx Xxxx 06/08/99 732 $2.85
Xxxxxxxx, Xxxx & Xxxxxx XxXxxxx 06/08/99 732 $2.85
Xxxxxxxx, Xxx and Xxxx 06/08/99 4,304 $2.85
XxXxxxxxx, Xxx 06/08/99 1,836 $2.85
XxXxx, Xxxx 06/08/99 3,620 $2.85
Xxxxxxxx, Xxxx 06/08/99 3,799 $2.85
Xxxxx, Xxxx & Xxxxx 06/08/99 916 $2.85
Xxxxxxx, Xxxx Xx. 06/08/99 726 $2.85
Silicon Valley Bank 07/20/99 60,000 $3.56
St. Xxx, Xxx 06/08/99 3,665 $2.85
Xxxxx, Xxxx 06/08/99 1,833 $2.85
Xxxxx, Xxxx 06/08/99 2,932 $2.85
Xxxxx, Xxxxx & Xxxxxxxx 06/08/99 1,092 $2.85
Xxxxx, Xxxx 06/08/99 1,831 $2.85
