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.
EXHIBIT 10.10
WARRANT TO PURCHASE PREFERRED STOCK
Issue Date: September 16, 1999
Expiration Date: September 16, 2006
THIS WARRANT CERTIFIES THAT, for good and valuable consideration,
receipt of which is hereby acknowledged, SILICON VALLEY BANK, or its assigns
("Holder") is entitled to purchase 20,000 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 $10.69 (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 surrendering
this Warrant and 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. If the Shares are traded in a public market, the
fair market value of the shares shall be the closing price of the Shares (or the
closing price of the Company's stock into which the Shares are convertible)
reported on the business day immediately before Holder delivers its Notice of
Exercise to the Company. If the Shares are not traded in a public market, the
Board of Directors of the Company shall determine fair market value in its
reasonable good faith judgement. The foregoing notwithstanding, if Holder
advises the Board of Directors in writing that Holder disagrees with such
determination, then the Company and Holder shall promptly agree on a reputable
investment banking firm to undertake such valuation.
If the valuation of such investment banking firm is greater than that determined
by the Board of Directors, then all fees and expenses of such investment banking
firm shall be paid by the Company. In all other circumstances, such fees shall
be paid by Holder.
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 III, Section D of the Company's Articles 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 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 ASSUMPTION OR NONASSUMPTION OF WARRANT. If, on the
record date for any Acquisition, the fair market value of the Shares (or other
Securities issuable upon exercise of this Warrant) is greater than or equal to
three (3) times the Warrant Price, then the successor entity may, at its option.
either assume the obligations of the Company under this Warrant or not assume
the obligations of the Company under this Warrant. If, on the record date for
any Acquisition, the fair market value of the Shares (or other securities
issuable upon exercise of this Warrant) is less than three (3) times the Warrant
Price, then the successor entity shall assume the obligations of the Company
under this Warrant. If the successor entity assumes the obligations of the
Company under this Warrant (whether voluntarily or involuntarily), then this
Warrant shall be exercisable for the same class and amount of securities, cash,
and/or other property as would be payable for the Shares issuable upon exercise
of this Warrant as if such Shares were outstanding on the record date for the
Acquisition. If the successor entity does not assume the obligations of the
Company under this Warrant, then this Warrant shall be deemed to have been
automatically converted pursuant to Section 1.2 and thereafter Holder shall
participate in the Acquisition as a holder of the Shares (or other securities
issuable upon exercise of this Warrant) on the same terms as other holders of
the same class of securities of the Company.
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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 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 ADJUSTMENTS FOR DILUTING ISSUANCES. The Warrant Price and the
number of Shares issuable upon exercise of this Warrant or, if the Shares are
Preferred Stock, the number of shares of common stock issuable upon
conversion of the Shares, shall be subject to adjustment, from time to time
in the mariner set forth on Exhibit A attached hereto in the event of
Diluting Issuances (as defined on EXHIBIT A).
2.5 NO IMPAIRMENT. The Company shall not, by amendment of' its
Articles 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
3
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.
2.6 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.
2.7 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.
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 upon
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 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
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).
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3.3 INFORMATION RIGHTS. So long, as the Holder holds this Warrant
and/or any of the Shares, the Company shall deliver to the Holder (a)
promptly after mailing, copies of all notices or other written communications
to the shareholders of the Company, (b) within ninety (90) days after the end
of each fiscal year of the Company, the annual audited financial statements
of the Company certified by independent public accountants of recognized
standing and (c) such other financial statements required under and in
accordance with any loan documents between Holder and the Company (or if
there are no such requirements
[or if the subject loan(s) no longer are outstanding]), then within
forty-five (45) days after the end of each of the first three quarters of
each fiscal year, the Company's quarterly, unaudited financial statements.
3.4 REGISTRATION RIGHTS. The Company agrees that the shares or, if
the shares are convertible into Common Stock of the Company, such Common
Stock shall be subject to the registration rights set forth on EXHIBIT B.
3.5 "MARKET STANDOFF" AGREEMENT. Holder agrees that, during the
period of duration (not to exceed one hundred eighty (180) days) specified by
the Company and an underwriter of Common Stock or other securities of the
Company, following the effective date of a registration statement of the
Company filed for a Registration, it shall not, to the extent requested by
the 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 donees
who agree to be similarly bound) this Warrant or any of the Shares acquirable
or acquired upon the exercise hereof except Shares included in such
Registration; PROVIDED, HOWEVER, that all officers, directors and holders of
one percent (1%) or more of the Company's securities and all other persons
with registration rights enter into similar agreements. In order to enforce
the foregoing covenant, the Company may impose stop-transfer instructions
with respect to this Warrant and the Shares acquirable or acquired upon the
exercise hereof (and the shares or securities of every other person subject
to the foregoing restriction) until the end of such period. This covenant
shall survive the termination of this Warrant.
ARTICLE 4. MISCELLANEOUS.
4.1 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.
4.2 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:
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
4.3 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 reasonable 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 three is on material question
as to the availability of current information as referenced in Rule 144(c),
Holder represents that is has it has complied with Rule 144(d) and (e) in
reasonable detail, the selling broker represents that it has compiled 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).
4.4 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 4.3, 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).
4.5 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.
4.6 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.
4.7 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.
4.8 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.
4.9 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.
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COMPANY
College Xxxx.xxx
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
CFO
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APPENDIX I
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:
____________________________________
(Name)
____________________________________
____________________________________
____________________________________
(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.
____________________________________
(Signature)
_________________________
(Date)
EXHIBIT A
Anti-Dilution Provisions
In the event of the issuance (a "Diluting Issuance") by the Company,
after the issue Date of the Warrant, of securities at a price per share less
than the Warrant Price, then the number of shares of common stock issuable upon
conversion of the Shares shall be adjusted in accordance with those provisions
("the Provisions") of the Company's Articles of Incorporation which apply to
Diluting Issuances.
The Company agrees the Provisions, as in effect on the Issue Date,
shall be deemed to remain in full force and effect during the term of the
Warrant notwithstanding any subsequent amendment, waiver or termination thereof
by the Company's shareholders.
Under no circumstances shall the aggregate Warrant Price payable by the
Holder upon exercise of the Warrant increase as a result of any adjustment
arising from a Diluting Issuance.
2
EXHIBIT B
The shares (if common stock), or the common stock issuable upon
conversion of the Shares, shall be deemed "registrable securities" or otherwise
entitled to "piggy back" registration rights and S-3 registration rights in
accordance with the terms of the following agreement (the "Agreement") between
the Company and its investor(s):
College Xxxx.xxx Investor Rights Agreement, dated as of June 7, 1999.
The Company agrees that no amendments will be made to the Agreement
which would have an adverse impact on Holder's registration rights thereunder
without the consent of Holder. By acceptance of the Warrant to which this
Exhibit B is attached, Holder shall be deemed to be a party to the Agreement,
unless Holder otherwise elects not to become or to cease being a party thereto.
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XXXXXXXXXXX.XXX, INC.
AMENDMENT NO. 1 TO WARRANT TO PURCHASE PREFERRED STOCK
This Amendment No. 1 (this "Amendment") to Warrant to Purchase
Preferred Stock dated September 16, 1999 (the "Warrant") is made as of March 30,
2000, and is effective as of September 16, 1999 by and among XxxxxxxXxxx.xxx,
Inc., a Delaware corporation (the "Company") and Silicon Valley Bank (the
"Holder"). The Company and the Holder are each a "Party" and together are the
"Parties" to this Amendment.
RECITALS
WHEREAS, the Parties desire to amend the Warrant as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration the receipt of which is
hereby acknowledged, the Parties agree as follows:
1. AMENDMENT TO THE WARRANT. Section 2.4 of the Warrant is hereby
amended and restated in its entirety as follows:
"2.4.1 ADJUSTMENTS FOR DILUTING ISSUANCES. The
Warrant Price and the number of Shares issuable upon exercise
of this Warrant, or if the Shares are Preferred Stock, the
number of shares of common stock issuable upon conversion of
the Shares, shall be subject to adjustment, from time to time
in the manner set forth on EXHIBIT A attached hereto in the
event of Diluting Issuances (as defined on EXHIBIT A).
2.4.2. TERMINATION OF ADJUSTMENTS FOR DILUTING
ISSUANCES. Upon the closing of a Qualified IPO, as such term
is defined in the Company's Certificate of Incorporation, as
amended, the Warrant Price and the number of Shares issuable
upon exercise of this Warrant, or if the Shares are Preferred
Stock, the number of shares of common stock issuable upon
conversion of the Shares, shall no longer be subject to
adjustment for Diluting Issuances and the provisions of this
Section 2.4 and EXHIBIT A hereto shall terminate."
(b) EXHIBIT A of the Warrant is hereby amended and restated in
its entirety as follows:
"EXHIBIT A
Anti-Dilution Provisions
In the event of the issuance (a "Diluting Issuance")
by the Company, after the Issue Date of the Warrant, of
securities at a price per share less than $3.46 (subject to
appropriate adjustments for stock splits, dividends,
combinations or other recapitalizations), then the number of
shares of common stock issuable upon conversion of the Shares
shall be adjusted in accordance with those provisions ("the
Provisions") of the Company's Certificate of Incorporation
which apply to Diluting Issuances.
The Company agrees the Provisions, as in effect on
the Issue Date, shall be deemed to remain in full force and
effect during the term of the Warrant notwithstanding any
subsequent amendment, waiver or termination thereof by the
Company's shareholders.
Under no circumstances shall the aggregate Warrant
Price payable by the Holder upon exercise of the Warrant
increase as a result of any adjustment arising from a Diluting
Issuance."
2. EFFECT OF AMENDMENT. Except as expressly modified by this Amendment,
the Warrant shall remain unmodified and in full force and effect.
3. ENTIRE AGREEMENT. This Amendment together with the Warrant and all
documents referred to herein and therein constitute the full and entire
understanding and agreement between the Parties with regard to the subjects
hereof and thereof.
4. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Amendment shall inure to the benefit of and be
binding upon the respective successors and assigns of the Parties. Nothing in
this Amendment, express or implied, is intended to confer upon any party other
than the Parties hereto or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Amendment,
except as expressly provided in this Amendment.
5. ATTORNEYS' FEES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Amendment, the prevailing Party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such Party may be entitled.
6. FURTHER ASSURANCES. The Parties agree to execute such further
instruments, agreements and documents and to take such further action as may
reasonably be necessary to carry out the intent of this Amendment.
7. SEVERABILITY. If one or more provisions of this Amendment are held
to be unenforceable under applicable law, such provision shall be excluded from
this Amendment and the balance of the Amendment shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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8. GOVERNING LAW. This Amendment will be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
9. SEPARATE COUNSEL. The Holder acknowledges and agrees that Xxxxxxx,
Xxxxxxx & Xxxxxxxx LLP represents solely the Company and has not represented the
Holder's interests and that the Holder has been provided the opportunity and
encouraged to consult with counsel of the Holder's own choosing with respect to
this Amendment. The Holder certifies and acknowledges that it has carefully read
all of the provisions of this Amendment and that the such fully understands and
shall fully and faithfully comply with such provisions.
10. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, and all of which counterparts, taken together,
shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
THE COMPANY: XXXXXXXXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx, Chief Financial Officer
Address: 0000 Xxxxxx Xxx. Xxxxx 000
Xxx Xxxxx, XX
Fax No.: (000) 000-0000
THE HOLDER: SILICON VALLEY BANK
By: /s/ Illegilbe
--------------------------------------
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO WARRANT TO PURCHASE
PREFERRED STOCK]
