Contract
Exhibit 4.6
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), NOR UNDER ANY APPLICABLE STATE SECURITIES LAWS.
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS COVERED BY AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR THE COMPANY RECEIVES AN OPINION
OF LEGAL COUNSEL REASONABLY SATISFACTORY TO THE COMPANY STATING THAT THE SALE, TRANSFER, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS.
This
certifies that
(the “Holder”), for value received, is entitled, subject to
the adjustments and to the other terms set forth below, to purchase from K12 INC., a Delaware
corporation (the “Company”), at any time after the date hereof and until 5:00 P.M. (California
time) on the Expiration Date,
Warrant Shares.
This Warrant is subject to the following terms and conditions:
1. Definitions. As used herein, the following terms shall have the
meaning as defined below:
“Exercise Price” means One Dollar Sixty Cents ($1.60) per share. The Exercise Price shall be
equitably adjusted for any stock dividends, splits, reverse splits, recapitalizations and the like
occurring after the date hereof.
“Expiration Date” means the earlier of (a) March 24, 2010, or (b) two years after the
Company consummates a Qualified Public Offering.
“Qualified Public Offering” has the meaning as defined in the Company Certificate of
Incorporation as of the date hereof.
“Warrant Shares” means shares of the Company’s Common Stock.
2. Exercise;
Issuance of Certificates; Payment for Shares.
2.1 This Warrant is exercisable at the option of Holder at any time and from time to time
after the date hereof and until 5:00 P.M. (California time) on the Expiration Date for all or any
portion of the Warrant Shares that may be acquired hereunder.
2.2 This Warrant shall be exercised upon surrender to the Company of this Warrant together
with a completed and executed Subscription Agreement in the form attached hereto as Exhibit A, and
upon payment of the Exercise Price for the number of Warrant Shares for which this Warrant is being
exercised. Payment for Warrant Shares may be made in any one or a combination of the following
forms at the option of Holder: (i) by cashier’s check or wire transfer in the amount of the
Exercise Price, (ii) by the surrender to the Company of securities of the Company and/or any
subsidiary of the Company having a Fair Value equal to the Exercise Price, (iii) by forgiveness of
any indebtedness owed by the Company and/or any subsidiary of the Company in the amount of the
Exercise Price, and/or (iv) by the surrender to the Company of that portion of this Warrant having
a Fair Value equal to the amount of the Exercise Price. For purposes of clause (iv) above, the Fair
Value of this Warrant (or portion hereof) as of a given date shall mean such amount as determined
by Holder and the Company using Black-Scholes valuation methodology.
2.3 In lieu of exercising this Warrant as provided is Section 2.2 above, Holder may from time
to time at Holder’s option convert this Warrant, in whole or in part, into a number of Warrant
Shares determined by dividing (A) the aggregate Fair Value of such shares otherwise issuable upon
exercise of this Warrant minus the aggregate Exercise Price of such shares by (B) the Fair
Value of one such share.
2.4 For purposes of Sections 2.2(ii) and 2.3 above, the Fair Value of securities of as of a
given date shall mean: (i) the average closing price of such securities on the principal exchange
(or NASDAQ NMS) on which such securities are then trading, if any (or as reported on any composite
index which includes such principal exchange), on the twenty most recent trading days immediately
prior to such date; or (ii) if such securities are not traded on an exchange (or NASDAQ NMS) but
are quoted on NASDAQ Small Cap or a successor quotation system, the average mean between the
closing bid and asked prices for such securities, on the twenty most recent trading days
immediately prior to such date as reported by NASDAQ Small Cap or such successor quotation system;
or (iii) if such securities are not publicly traded on an exchange (or NASDAQ NMS) or quoted on
NASDAQ Small Cap or a successor quotation system, the Fair Value shall mean such amount as mutually
agreed upon by the Company and Holder. In the event that the Company and Holder cannot reach
agreement on Fair Value under clause (iii) above, the Fair Value shall be determined by an
investment banking firm mutually agreed upon by the Company and Holder with the Company paying all
of the fees, costs and expenses of such investment banking firm and otherwise associated with
determining the Fair Value.
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2.5 The Company agrees that any Warrant Shares issued under this Warrant shall be
deemed to be issued to Holder as the record owner of such shares as of the close of business on the
date on which this Warrant shall have been surrendered (subject to payment being made for such
Warrant Shares as provided herein). Certificates for the Warrant Shares so purchased, together with
any other securities or property to which Holder is entitled upon such exercise, shall be delivered
to Holder by the Company or its transfer agent at the Company’s expense within a reasonable time
after the rights represented by this Warrant have been exercised and payment for the Warrants
Shares has been made. Each certificate so delivered shall be in such denominations as may be
requested by Holder and shall be registered in the name of Holder or such other name as shall be
designated by Holder. If, upon exercise of this Warrant, fewer than all of the Warrant Shares
subject to this Warrant are purchased prior to the Expiration Date of this Warrant, one or more new
Warrants substantially in the form of, and on the terms in, this Warrant will be issued for the
remaining number of Warrant Shares not purchased upon such exercise.
3. Shares to be Fully Paid; Reservation of Shares. The Company covenants and agrees
that all Warrant Shares that may be issued upon the exercise of the rights represented by this
Warrant will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issuance thereof. The Company covenants
that it will reserve and keep available a sufficient number of its authorized but unissued shares
for issuance upon exercise or conversion of this Warrant. The Company will take all action as may
be necessary to assure that such Warrant Shares may be issued as provided herein without violation
of any applicable law or regulation.
4. Adjustment of Exercise Price and Number of Warrant Shares. The Exercise Price and
the number of Warrant Shares shall be subject to adjustment from time to time upon the occurrence
of certain events described in this Section 4.
4.1 Subdivision or Combination of Shares and Stock Dividend. In the event that, after
the date of this Warrant, the Company subdivides its outstanding shares into a greater number of
shares or declares a dividend upon its shares payable solely in shares, the Exercise Price in
effect immediately prior to such subdivision or declaration shall automatically be proportionately
reduced and the number of Warrant Shares shall automatically be proportionately increased.
Conversely, in case the outstanding shares of the Company shall be combined into a smaller number
of shares, the Exercise Price in effect immediately prior to such combination shall be
proportionately increased, and the number of Warrant Shares shall be proportionately reduced.
4.2 Notice of Adjustment. Promptly after any adjustment of the Exercise Price or any
increase or decrease in the number of Warrant Shares, the Company shall give written notice
thereof, by first class mail, postage prepaid, addressed to the registered holder of this Warrant
at the address of such holder as shown on the books of the Company. The notice shall be signed by
the Company’s chief financial officer and shall state the effective date of the adjustment and the
Exercise Price resulting from such adjustment and the increase or decrease, if any, in the number
of Warrant Shares, setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based.
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4.3 Other Notices. If at any time:
(a) the Company shall declare any dividend upon its shares;
(b) the Company shall offer for subscription pro rata to the holders of
its shares any additional shares of stock of any class or other rights;
(c) there shall be any capital reorganization or reclassification of the
capital stock of the Company; or consolidation or merger of the Company with, or sale of all
or substantially all of its assets to, another corporation;
(d) there shall be a voluntary or involuntary dissolution, liquidation or
winding-up of the Company; or
(e) there shall be a public offering of Company securities;
then, in any one or more of said cases, the Company shall give to the
registered holder of this Warrant, by the means specified in Section 9 herein, (i) at least twenty
(20) days’ prior written notice of the date on which the books of the Company shall
close or a record shall be taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding-up, and (ii) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation, winding-up
or public offering, at least twenty (20) days’ prior written notice of the date when the same shall
take place. Any notice given in accordance with the foregoing clause (i) shall also specify, in the
case of any such dividend, distribution or subscription rights, the date on or after which the
holders of shares shall be entitled thereto. Any notice given in accordance with the foregoing
clause (ii) shall also specify the date on or after which the holders of shares shall be entitled
to exchange their shares for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, winding-up, conversion or
public offering, as the case may be.
4.4 Changes in Shares. In case at any time following the date of this Warrant,
the Company shall be a party to any transaction (including, without limitation, a merger,
consolidation, or sale of all or substantially all of the Company’s assets or recapitalization of
shares) in which the previously outstanding shares shall be changed into, converted or exchanged
for other securities of the Company or stock or other securities of another corporation or
interests in a non-corporate entity or other property (including cash) or any combination of any of
the foregoing (each such transaction being herein called a “Transaction” and the date of
consummation of a Transaction being herein called a “Consummation Date”), then, as a condition to
the consummation of such Transaction, lawful and adequate provisions shall be made so that Holder,
upon the exercise or conversion hereof at any time on or after the Consummation Date of such
Transaction, shall be entitled to receive, and this Warrant shall thereafter represent the right to
receive, in lieu of the shares issuable upon such exercise or conversion prior to such Consummation
Date, the highest amount of securities or other property
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to which Holder would actually have been entitled as a shareholder if Holder had exercised this
Warrant immediately prior to the consummation of such Transaction. The provisions of this Section
5.4 shall similarly apply to successive Transactions.
5. Issue Tax. The issuance of certificates for Warrant Shares upon the exercise or
conversion of the Warrant shall be made without charge to Holder for any issue tax in respect
thereof.
6. No Voting or Dividend Rights; Limitation of Liability. Nothing contained in this
Warrant shall be construed as conferring upon Holder hereof the right to vote or to consent or
to receive notice as a shareholder in respect of meetings of shareholders for the election of
directors of the Company or any other matters or any rights whatsoever as a shareholder of the Company,
until, and only to the extent that, this Warrant shall have been exercised or converted.
Except for the adjustment to the Exercise Price pursuant to Section 4.1 in the event of a dividend on the
shares payable in shares, no dividends or interest shall be payable or accrued in respect of
this Warrant or the Warrant Shares purchasable hereunder until, and only to the extent that, this
Warrant shall have been exercised or converted. No provisions hereof, in the absence of
affirmative action by Holder to purchase Warrant Shares, and no mere enumeration herein of the
rights or privileges of Holder hereof, shall give rise to any liability of such Holder for the
Exercise Price or as a shareholder of the Company whether such liability is asserted by the
Company or by its creditors.
7. Representations and Warranties by the Company. The Company hereby
represents and warrants to Holder as follows: The Company has all necessary corporate power
and authority, and has taken all corporate action necessary, to execute and delivery this
Warrant and to perform its obligations hereunder. The execution and delivery of this Warrant by the
Company has been duly approved by the Board of Directors of the Company. No other
corporate proceedings on the part of the Company are necessary to authorize this Warrant. This
Warrant has been duly executed and delivered by the Company and is a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms,
subject to the effect of any applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting creditors’ rights generally and subject to the general principles of
equity.
8. Investment Representations; Restrictions on Transferability of Securities.
8.1 Investment Representations. By accepting this Warrant Certificate,
Holder represents that it is acquiring this Warrant (and will be acquiring any Warrant Shares
purchased upon exercise or conversion of this Warrant) for its own account, not as nominee or
agent, for investment and not with a view to, or for resale in connection with, any
distribution or public offering thereof in violation of the Securities Act of 1933, as amended (the “Act”).
8.2 Restrictions on Transferability. This Warrant and the Warrant Shares
have not been registered under the Act and shall not be transferable in the absence of
registration under the Act, or an exemption therefrom under said Act.
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8.3 Restrictive Legend. Each certificate representing the Warrant Shares or any
other securities issued in respect of the Warrant Shares shall be stamped or otherwise imprinted
with legends in substantially the following form (in addition to any legend required under
applicable state securities laws):
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), NOR UNDER ANY APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF UNLESS COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR THE COMPANY RECEIVES AN OPINION
OF LEGAL COUNSEL REASONABLY SATISFACTORY TO THE COMPANY STATING THAT THE SALE,
TRANSFER, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM REGISTRATION
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS.
9. Modification and Waiver. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing signed by the party
against which enforcement of the same is sought.
10. Notices. Any notice, request or other document required or permitted to be given
or delivered to Holder or the Company shall be delivered or shall be sent by certified or
registered mail, postage prepaid, to Holder at its address as shown on the books of the
Company or if to the Company at the address indicated therefor in the first paragraph of this Warrant.
If Holder’s address is outside of the United States, Holder shall first be given notice by
telecopy, in addition to being provided with notice as set forth in the preceding sentence.
11. Binding Effect on Successors. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of all or
substantially all of the Company’s assets. All of the obligations of the Company relating to
the shares issuable upon the exercise or conversion of this Warrant shall survive the exercise or
conversion and termination of this Warrant. All of the covenants and agreements of the
Company shall inure to the benefit of the successors and assigns of the holder hereof.
12. Descriptive Headings and Governing Law. The descriptive headings of the
several sections and paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant. This Warrant shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the laws of the State of California.
13. Lost Warrants or Ordinary Share Certificates. The Company represents and
warrants to Holder that upon receipt of an affidavit reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant or any stock certificate
deliverable upon the exercise or conversion hereof and, in the case of any such loss, theft or destruction,
upon receipt of an indemnity agreement reasonably satisfactory to the Company, or in the case of
any
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such mutilation, upon surrender and cancellation of this Warrant or such stock certificate, the
Company at its expense will make and deliver a new Warrant or stock certificate, of like tenor, in
lieu of the lost, stolen, destroyed or mutilated Warrant or stock certificate.
14. Fractional Shares. The Company shall not be required to issue fractional shares
upon exercise or conversion of this Warrant. The Company may, in lieu of issuing any
fractional share, pay Holder entitled to such fraction a sum in cash equal to the fair market value of
any such fractional interest as it shall appear on the public market, or if there is no public
market for such shares, then as shall be reasonably determined by the Company.
15. Arbitration. Any dispute, controversy or claim arising out of this Warrant
Certificate or the performance, breach or termination thereof shall be settled by binding
arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The place of arbitration shall be in Los Angeles, California. The arbitration
shall be conducted by a neutral arbitrator appointed by the American Arbitration Association. The
arbitrator shall be entitled to award any appropriate remedy including, but not limited to,
monetary damages, specific performance, and all other forms of legal and equitable relief.
Judgment upon the award rendered may be entered in any court having jurisdiction. The
prevailing party shall be entitled to be awarded all costs of arbitration including, but not
limited to, attorneys’ fees. The arbitrator shall be charged with determining the prevailing party. To
the extent practicable, all information resulting from or otherwise pertaining to any dispute
shall be nonpublic and handled by the Company, Holder and their respective agents in such a way as to
prevent the public disclosure of such information. Notwithstanding the foregoing, each of the
Company and Holder shall have the right to seek and obtain court ordered specific performance,
injunctive and other equitable remedies in connection with any actual or threatened breach of
this Warrant Certificate.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly
authorized officer effective as of the above written date.
| K12 INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Xxxxxx X. Xxxxxxx, | ||||
| Chief Executive Officer | ||||
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Exhibit A
K12 INC.
WARRANT
WARRANT
FORM OF SUBSCRIPTION AGREEMENT
(To be signed and delivered
upon exercise or conversion of Warrant)
upon exercise or conversion of Warrant)
The undersigned, the holder of the within Warrant, hereby irrevocably elects to exercise the
purchase right represented by such Warrant for, and to acquire thereunder,
shares of
stock (the “Stock”), of
K12 INC. (the “Company”), and subject to the following paragraph, herewith makes payment of
$ therefor in the form of:
The undersigned requests that the certificates for such shares be issued in the name of
, and delivered to,
,
whose address is:
.
If the exercise or conversion of this Warrant is not covered by a registration statement
effective under the Securities Act of 1933, as amended (the “Act”), the undersigned represents
that:
(i) the undersigned is acquiring such Stock for investment and not with a
view to the distribution thereof in violation of the Act;
(ii) the undersigned has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of the undersigned’s
investment in the Stock;
(iii) the undersigned has received all of the information the undersigned has
requested from the Company and considers necessary or appropriate for deciding whether to purchase
the shares of Stock;
(iv) the undersigned has the ability to bear the economic risks of his, her or its
prospective investment;
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(v) the undersigned is able, without materially impairing its financial
condition, to hold the shares of Stock for an indefinite period of time and to suffer complete loss
on his, her or its investment;
(vi) the undersigned understands and agrees that (A) the undersigned may be
unable to readily liquidate his, her or its investment in the shares of Stock and that the shares
must be held indefinitely unless a subsequent disposition thereof is registered or qualified under
the Act and applicable state securities or Blue Sky laws or is exempt from such registration or
qualification, and that the Company is not required to register the same or to take any action or
make such an exemption available except to the extent provided in the within Warrant or other
applicable agreement to which the Company and the undersigned are parties, and (B) the exemption
from registration under the Act afforded by Rule 144 promulgated by the Securities and Exchange
Commission (“Rule 144”) depends upon the satisfaction of various conditions by the undersigned and
the Company and that, if applicable, Rule 144 affords the basis for sales under certain
circumstances in limited amounts, and that if such exemption is utilized by the undersigned, such
conditions must be fully complied with by the undersigned and the Company, as required by Rule 144;
and
(vii) the address set forth below is the true and correct address of the
undersigned’s residence.
| (Name) | ||||
| (Address) | ||||
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If said number of shares shall not be all the shares exchangeable or purchasable under the
within Warrant, a new Warrant is to be issued in the name of the undersigned for the balance
remaining of the shares purchasable thereunder.
DATED:
| (signature) | ||||
| (print name) | ||||
| (print title) | ||||
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