EXHIBIT 4.3
SILICON VALLEY BANK
ANTIDILUTION AGREEMENT
THIS ANTIDILUTION AGREEMENT is entered into as of February 12, 2003, by
and between Silicon Valley Bank ("Purchaser") and the Company whose name appears
on the last page of this Antidilution Agreement.
RECITALS
A. Concurrently with the execution of this Antidilution
Agreement, the Purchaser is purchasing from the Company a Warrant to Purchase
Stock (the "Warrant") pursuant to which Purchaser has the right to acquire from
the Company the Shares (as defined in the Warrant).
B. By this Antidilution Agreement, the Purchaser and the Company
desire to set forth the adjustment in the number of Shares issuable upon
exercise of the Warrant as a result of a Diluting Issuance (as defined in
Exhibit A to the Warrant).
C. Capitalized terms used herein shall have the same meaning as
set forth in the Warrant.
NOW, THEREFORE, in consideration of the mutual promises,
covenants and conditions hereinafter set forth, the parties hereto mutually
agree as follows:
1. Definitions. As used in this Antidilution Agreement,
the following terms have the following respective meanings:
(a) "Option" means any right, option, or warrant
to subscribe for, purchase, or otherwise acquire common stock or Convertible
Securities.
(b) "Convertible Securities" means any evidences
of indebtedness, shares of stock, or other securities directly or indirectly
convertible into or exchangeable for common stock.
(c) "Issue" means to grant, issue, sell, assume,
or fix a record date for determining persons entitled to receive, any security
(including Options), whichever of the foregoing is the first to occur.
(d) "Additional Common Shares" means all common
stock (including reissued shares) issued (or deemed to be issued pursuant to
Section 2) after the date of the Warrant. Additional Common Shares does not
include, however, (i) any common stock issued in a transaction described in
Sections 2.1 and 2.2 of the Warrant; (ii) issuances of Common Stock or
Convertible Securities as consideration in a merger, consolidation or
acquisition of assets, or in connection with any strategic partnership, joint
venture or credit facility or to any person in satisfaction of amounts owing to
such person (in the case of each of the foregoing, the primary
purpose of which is not to raise equity capital), or as consideration for the
acquisition of a business, product or license by the Company, (iii) the issuance
of Common Stock or Convertible Securities upon the exercise or conversion of the
Company's options, warrants or other Convertible Securities outstanding as of
the date hereof, or (iv) the grant of options or warrants, or the issuance of
additional securities, under any duly authorized Company stock option,
restricted stock plan or stock purchase plan for the benefit of the Company's
employees, officers, directors, or consultants.
(e) The shares of common stock ultimately
Issuable upon exercise of an Option (including the shares of common stock
ultimately Issuable upon conversion or exercise of a Convertible Security
Issuable pursuant to an Option) are deemed to be Issued when the Option is
Issued. The shares of common stock ultimately Issuable upon conversion or
exercise of a Convertible Security (other than a Convertible Security Issued
pursuant to an Option) shall be deemed Issued upon Issuance of the Convertible
Security.
2. Deemed Issuance of Additional Common Shares. The shares of
common stock ultimately Issuable upon exercise of an Option (including the
shares of common stock ultimately Issuable upon conversion or exercise of a
Convertible Security Issuable pursuant to an Option) are deemed to be Issued
when the Option is Issued. The shares of common stock ultimately Issuable upon
conversion or exercise of a Convertible Security (other than a Convertible
Security Issued pursuant to an Option) shall be deemed Issued upon Issuance of
the Convertible Security. The maximum amount of common stock Issuable is
determined without regard to any future adjustments permitted under the
instrument creating the Options or Convertible Securities.
3. Adjustment of Warrant Price for Diluting Issuances.
3.1 Weighted Average Adjustment. If the Company issues
Additional Common Shares after the date of the Warrant and the consideration per
Additional Common Share (determined pursuant to Section 9) is less than the
Warrant Price in effect immediately before such Issue, the Warrant Price shall
be reduced, concurrently with such Issue, to a price (calculated to the nearest
hundredth of a cent) determined by multiplying the Warrant Price by a fraction:
(a) the numerator of which is the amount of such
common stock outstanding immediately before such Issue plus the amount of common
stock that the aggregate consideration received by the Company for the
Additional Common Shares would purchase at the Warrant Price in effect
immediately before such Issue, and
(b) the denominator of which is the amount of
common stock outstanding immediately before such Issue plus the number of such
Additional Common Shares issued or deemed issued.
3.2 Adjustment of Number of Shares. Upon each adjustment
of the Warrant Price, the number of Shares issuable upon exercise of the Warrant
shall be increased to equal the quotient obtained by dividing (a) the product
resulting from multiplying (i) the number of Shares
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issuable upon exercise of the Warrant and (ii) the Warrant Price, in each case
as in effect immediately before such adjustment, by (b) the adjusted Warrant
Price.
3.3 Securities Deemed Outstanding. For the purpose of
this Section 3, all securities issuable upon exercise of any outstanding
Convertible Securities or Options, warrants, or other rights to acquire
securities of the Company shall be deemed to be outstanding.
4. No Adjustment for Issuances Following Deemed Issuances. No
adjustment to the Warrant Price shall be made upon the exercise of Options or
conversion of Convertible Securities.
5. Adjustment Following Changes in Terms of Options or
Convertible Securities. If the consideration payable to, or the amount of common
stock Issuable by, the Company increases or decreases, respectively, pursuant to
the terms of any outstanding Options or Convertible Securities, the Warrant
Price shall be recomputed to reflect such increase or decrease. The
recomputation shall be made as of the time of the Issuance of the Options or
Convertible Securities. Any changes in the Warrant Price that occurred after
such Issuance because other Additional Common Shares were Issued or deemed
Issued shall also be recomputed.
6. Recomputation Upon Expiration of Options or Convertible
Securities. The Warrant Price computed upon the original Issue of any Options or
Convertible Securities, and any subsequent adjustments based thereon, shall be
recomputed when any Options or rights of conversion under Convertible Securities
expire without having been exercised. In the case of Convertible Securities or
Options for common stock, the Warrant Price shall be recomputed as if the only
Additional Common Shares Issued were the shares of common stock actually Issued
upon the exercise of such securities, if any, and as if the only consideration
received therefor was the consideration actually received upon the Issue,
exercise or conversion of the Options or Convertible Securities. In the case of
Options for Convertible Securities, the Warrant Price shall be recomputed as if
the only Convertible Securities Issued were the Convertible Securities actually
Issued upon the exercise thereof, if any, and as if the only consideration
received therefor was the consideration actually received by the Company
(determined pursuant to Section 9), if any, upon the Issue of the Options for
the Convertible Securities.
7. Limit on Readjustments. No readjustment of the Warrant Price
pursuant to Sections 5 or 6 shall increase the Warrant Price more than the
amount of any decrease made in respect of the Issue of any Options or
Convertible Securities.
8. 30 Day Options. In the case of any Options that expire by
their terms not more than 30 days after the date of Issue thereof, no adjustment
of the Warrant Price shall be made until the expiration or exercise of all such
Options.
9. Computation of Consideration. The consideration received by
the Company for the Issue of any Additional Common Shares shall be computed as
follows:
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(a) Cash shall be valued at the amount of cash received
by the Corporation, excluding amounts paid or payable for accrued interest or
accrued dividends.
(b) Property. Property other than cash shall be computed
at the fair market value thereof at the time of the Issue as determined in good
faith by the Board of Directors of the Company.
(c) Mixed Consideration. The consideration for Additional
common Shares Issued together with other property of the Company for
consideration that covers both shall be determined in good faith by the Board of
Directors.
(d) Options and Convertible Securities. The consideration
per Additional Common Share for Options and Convertible Securities shall be
determined by dividing:
(i) the total amount, if any, received or
receivable by the Company for the Issue of the Options or Convertible
Securities, plus the minimum amount of additional consideration (as set forth in
the instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such consideration) payable to the
Company upon exercise of the Options or conversion of the Convertible
Securities, by
(ii) the maximum amount of common stock (as set
forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) ultimately
Issuable upon the exercise of such Options or the conversion of such Convertible
Securities.
10. General.
10.1 Governing Law. This Antidilution Agreement shall be
governed in all respects by the laws of the State of California as such laws are
applied to agreements between California residents entered into and to be
performed entirely within California.
10.2 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
10.3 Entire Agreement. Except as set forth below, this
Antidilution Agreement and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof.
10.4 Notices, etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed by first
class mail, postage prepaid, certified or registered mail, return receipt
requested, addressed (a) if to Purchaser at Purchaser's address as set forth
below, or at such other address as Purchaser shall have furnished to the Company
in writing, or (b) if to the Company, at the Company's address set forth below,
or at such other address as the Company shall have furnished to the Purchaser in
writing.
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10.5 Severability. In case any provision of this
Antidilution Agreement shall be invalid, illegal, or unenforceable, the
validity, legality and enforceability of the remaining provisions of this
Antidilution Agreement shall not in any way be affected or impaired thereby.
10.6 Titles and Subtitles. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Antidilution Agreement.
10.7 Counterparts. This Antidilution Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument.
PURCHASER COMPANY
SILICON VALLEY BANK VERSO TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxx
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(print) (print)
Title: Vice President Title: Chairman of the Board, President or
--------------------- Vice President
Address: 0000 Xxxxxx Xxxxx Address: 000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxx, XX 00000 ------------------------------
Xxxxxxx, XX 00000
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