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Exhibit 4.7(b)
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND THE SECURITIES ACT OF WASHINGTON
CHAPTER 21.20 RCW. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED
OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, IN A TRANSACTION THAT, IN THE VIEW OF COUNSEL
TO THE COMPANY, IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT
PURSUANT TO RULE 144 THEREUNDER OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS WARRANT HAS NOT BEEN
QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND
THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS AN
EXEMPTION FROM SUCH QUALIFICATION IS AVAILABLE. THE RIGHTS OF ALL PARTIES TO
THESE SECURITIES ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING
OBTAINED OR SUCH EXEMPTION BEING AVAILABLE.
THIS WARRANT IS NOT TRANSFERABLE WITHOUT THE CONSENT OF THE ISSUER.
January 7, 1997
WARRANT TO PURCHASE COMMON STOCK
This Warrant is issued, for good and valuable consideration of $1.00,
receipt of which is hereby acknowledged, to Xxx X. Xxxxxxx (the
"Warrantholder"), by ProBusiness, Inc., a California corporation (the
"Company"), with its principal address of 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxx 00000. Unless otherwise stated, all capitalized terms herein have the
meaning provided in the Stock Acquisition Agreement between the Warrantholder
and the Company effective as of January 1, 1997 (the "Stock Acquisition
Agreement").
1. Purchase of Shares. Subject to the terms and conditions hereinafter
set forth, the Warrantholder is entitled, upon surrender of this Warrant at the
principal office of the Company (or at such other place as the Company shall
notify the holder hereof in writing), to purchase from the Company, if and to
the extent permitted by law, 25,000 fully paid and nonassessable shares of
Common Stock of the Company (the "Shares") at an exercise price of $9.00 per
share, subject to adjustment as provided in Section 5 hereof (the "Warrant
Price"), payable in cash or by check.
2. Exercise Period. The purchase rights represented by this Warrant, to
the extent not previously exercised, shall expire upon five (5) years from the
date hereof (the "Expiration Date").
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3. Method of Exercise. While this Warrant remains outstanding and
exercisable in accordance with Section 2 above, the holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(i) the surrender of this Warrant, together with the Form of
Subscription attached hereto as Exhibit 1, duly completed and executed by the
Warrantholder, to the Secretary of the Company at its principal offices; and
(ii) the payment to the Company of an amount equal to the
aggregate purchase price for the Shares being purchased.
4. Certificates for Shares; Partial Exercise. Upon the exercise of the
purchase rights evidenced by this Warrant, one or more certificates for the
Shares so purchased shall be issued as soon as practicable thereafter. In the
case of a partial exercise, unless the purchase rights evidenced hereby have
expired, the Company shall issue to the Warrantholder a new Warrant for the
number of Shares, if any, which remain exercisable hereunder.
5. Legends. Upon exercise of the Warrant, the certificates representing
shares of Common Stock of the Company shall be stamped or imprinted with a
legend in substantially the following form:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND THE SECURITIES ACT OF WASHINGTON
CHAPTER 21.20 RCW. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED, EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, IN A
TRANSACTION THAT, IN THE OPINION OF COUNSEL TO THE COMPANY, IS EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT PURSUANT TO RULE 144
THEREUNDER OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT."
6. Adjustment of Number of Shares and Warrant Price. The number and
kind of securities purchasable upon the exercise of the purchase rights
evidenced by this Warrant and the Warrant Price shall be subject to adjustment
from time to time upon the occurrence of certain events, as follows:
(i) Subdivision or Combination of Shares. If the Company at
any time while this Warrant remains outstanding and unexpired shall subdivide or
combine its Common Stock, whether by way of stock split, stock dividend,
recapitalization or otherwise, the Warrant Price shall, in the case of a
subdivision, be proportionately decreased or, in the case of a combination, be
proportionately increased.
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(ii) Adjustment of Number of Shares. Upon each adjustment in
the Warrant Price, the number of Shares of Common Stock purchasable hereunder
shall, in the case of an increase in the Warrant Price, be proportionately
decreased or, in the case of a decrease in the Warrant Price, be proportionately
increased, in either case to the nearest whole share.
(iii) Reclassification, Consolidation or Merger. In case of
any reclassification or change of outstanding securities of the class
purchasable upon exercise of this Warrant (other than as set forth in Section
5(i)) the Company shall execute a new Warrant providing that the Warrantholder
shall have the right to exercise such new Warrant for, in lieu of each share of
Common Stock theretofore purchasable hereunder at such time, the kind and amount
of shares of stock, other securities, money and property receivable upon such
reclassification or change, by a holder of one share of Common Stock. Such new
Warrant shall provide for adjustments which shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Section 5. The provisions
of this Section 5(iii) shall apply similarly to successive reclassifications and
changes.
7. Notice of Adjustments. Whenever the Warrant Price shall be adjusted
pursuant to Section 6 hereof, the Company shall deliver to the Warrantholder a
certificate signed by its chief financial officer describing, in reasonable
detail, the event requiring the adjustment and the Warrant Price and, as
applicable, the kind and amount of shares of stock, other securities, money or
property purchasable hereunder after giving effect to such adjustment.
8. Fractional Shares. No fractional shares shall be issued in
connection with any exercise hereunder, but in lieu of any such fractional
shares the Company shall make a cash payment therefor upon the basis of the
Warrant Price then in effect.
9. Reservation of Shares. The Company covenants that it will at all
times keep available such number of authorized shares of its Common Stock, free
from all preemptive rights with respect thereto, as will be sufficient to permit
the exercise of this Warrant for the full number of Shares specified herein. The
Company further covenants that such Shares, when issued pursuant to the exercise
of this Warrant, will be duly and validly issued, fully paid and nonassessable
and free from all taxes, liens and charges with respect to the issuance thereof.
10. Rights Prior to Exercise. Prior to exercise of this Warrant, the
Warrant shall not entitle the Warrantholder to any rights of a shareholder with
respect to the Shares, including (without limitation) the right to vote such
Shares, receive preemptive rights or be notified of shareholder meetings, nor
shall the Warrant entitle such Warrantholder to any notice or other
communication concerning the business or affairs of the Company.
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11. Representations of Warrantholder. Warrantholder hereby represents
and warrants to the Company, with respect to its purchase of the Warrant and the
Shares as follows:
(i) Investment Representations and Covenants of the
Warrantholder.
(a) The Warrantholder represents that the Shares to
be received will be acquired for investment for its own account, not as a
nominee or agent, and not with a view to the sale or distribution of any part
thereof, and that it has no present intention of selling, granting any
participation in or otherwise distributing the same. The Warrantholder 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 any of the Shares.
(b) The Warrantholder understands and acknowledges
that the offering of the Warrant pursuant to the Agreement will not, and any
issuance of the Shares may not, be registered under the Securities Act of 1933,
as amended (the "Securities Act"), on the ground that the sale provided for in
the Agreement and the issuance of securities hereunder is exempt pursuant to
Section 4(2) of the Securities Act, and that the Company's reliance on such
exemption is predicated on the Warrantholder's representations set forth herein.
(c) The Warrantholder covenants that it will not make
any sale, transfer or other disposition of the Shares in violation of the
Securities Act, the Securities Exchange Act of 1934 (the "Securities Exchange
Act"), or the rules of the Securities and Exchange Commission (the "Commission")
promulgated thereunder.
(d) The Warrantholder represents that it is
experienced in evaluating companies similar to the Company, is able to fend for
itself in transactions such as the one contemplated hereby, has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of its prospective investment in the Company,
has the ability to bear the economic risks of the investment and is an
"accredited investor" as defined by Regulation D promulgated under the
Securities Act.
(e) The Warrantholder acknowledges and understands
that the Shares acquired upon the exercise of this Warrant must be held
indefinitely unless it is subsequently registered under the Securities Act or an
exemption from such registration is available, and that the Company is under no
obligation to register the Common Stock.
(f) The Warrantholder acknowledges that it has
reviewed a copy of Rule 144 promulgated under the Securities Act, which permits
limited public resales of securities acquired in a nonpublic offering, subject
to the satisfaction of certain conditions. The Warrantholder understands that
before the Shares may be sold under Rule 144, the following conditions must be
fulfilled: (i) certain public information about the Company must be available,
(ii) the sale must occur at least two (2) years after the Warrantholder
purchased and paid for the Shares, (iii) the sale must be made in a broker's
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transaction and (iv) the number of Shares sold must not exceed certain volume
limitations. The Warrantholder understands that the current information referred
to above is not now available and the Company has no present plans to make such
information available.
(g) The Warrantholder acknowledges that in the event
the applicable requirements of Rule 144 are not met, registration under the
Securities Act, compliance with the Commission's Regulation D or another
exemption from registration will be required for any disposition of its stock.
The Warrantholder understands that although Rule 144 is not exclusive, the
Commission has expressed its opinion that persons proposing to sell restricted
securities received in a private offering other than in a registered offering or
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 the brokers who participate in the transactions do so at
their own risk.
12. Nonassignability and Nontransferability of Warrant. This Warrant is
not assignable or otherwise transferable by the Warrantholder without the
written consent of the Company. The terms and provisions of this Warrant shall
inure to the benefit of, and be binding upon, the Company and its successors and
assigns.
13. Governing Law. This Warrant shall be governed by the laws of the
State of California, excluding the conflicts of laws provisions thereof.
14. Rights and Obligations Survive Exercise of Warrant. The rights and
obligations of the Company, of the Warrantholder and of the holder of shares of
Common Stock issued upon exercise of this Warrant, referred to in Section 12
shall survive the exercise of this Warrant.
15. 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 Company and the Warrantholder.
16. Notices. Any notice, request or other document required or
permitted to be given or delivered to the holder hereof or the Company shall be
delivered or shall be sent by certified mail, postage prepaid, to each such
holder at its address as shown on the books of the Company or to the Company at
the address indicated therefor in the first paragraph of this Warrant or such
other address as either may from time to time provide to the other.
17. 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 Common Stock issuable upon the exercise of this
Warrant shall survive the exercise 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.
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18. Lost Warrants. The Company represents and warrants to the
Warrantholder hereof that upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction, or mutilation of this Warrant and,
in the case of any such loss, theft or destruction, upon receipt of an indemnity
reasonably satisfactory to the Company, or in the case of any such mutilation
upon surrender and cancellation of such Warrant, the Company, at its expense,
will make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers, thereunto duly authorized this 7th day of January, 1997.
WARRANTHOLDER PROBUSINESS, INC.
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Xxx X. Xxxxxxx By: Xxxxxx X. Xxxxxx, President
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FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: _______________________
The undersigned, Warrantholder, hereby irrevocably elects to exercise
the purchase right represented by such Warrant for, and to purchase thereunder,
,_________________ (_______)(1) shares of Common Stock of ProBusiness, Inc. (the
"Company") and herewith makes payment of ___________________ Dollars
($___________ ) therefor, and requests that the certificates for such shares be
issued in the name of, and delivered to, _____________, whose address is
____________.
The undersigned represents that it is acquiring such Common Stock for
its own account for investment and not with a view to or for sale in connection
with any distribution thereof and in order to induce the issuance of such Common
Stock makes to the Company the representation and warranties set forth in
Section 10 of the Warrant.
Dated: ___________________
___________________________________________
(Signature must conform in all respects to
name of Warrantholder as specified on the
face of the Warrant)
___________________________________________
___________________________________________
______________________
(1) Insert here the number of shares called for on the face of the Warrant
(or, in the case of a partial exercise, the portion thereof as to which
the Warrant is being exercised), in either case without making any
adjustment for additional Common Stock or any other stock or other
securities or property or cash which, pursuant to the adjustment
provisions of the Warrant, may be deliverable upon exercise.
