EXHIBIT 4.4
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OR CONVERSION HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE LAWS, AND NO INTEREST THEREIN MAYBE SOLD, DISTRIBUTED,
ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (I) THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS COVERING ANY SUCH TRANSACTION OR SUCH TRANSACTION IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND LAWS AND (II) SUCH TRANSFER IS
EFFECTED IN ACCORDANCE WITH THE TERMS SET FORTH IN THIS WARRANT.
LXN CORPORATION October 10, 2000
COMMON STOCK PURCHASE WARRANT
This certifies that, for good and valuable consideration, ______ (the
"HOLDER"), or registered assigns, is entitled, upon the terms and subject to the
conditions hereinafter set forth, at any time on or after the date hereof and at
or prior to the close of business on the fifth anniversary of the date hereof
(the "EXPIRATION TIME"), but not thereafter, (provided, however, that this
Warrant shall become exercisable, if at all, only upon the closing date of the
initial public offering of the capital stock of LXN Corporation, a Delaware
corporation (the "COMPANY"), pursuant to a registration statement on Form S-1 or
any successor form under the Securities Act of 1933, as amended (the "IPO")), to
acquire from the Company, in whole or from time to time in part, at a purchase
price per share (the "EXERCISE PRICE") equal to seventy percent (70%) of the
price per share of shares sold to the public in the IPO, the number of fully
paid and non-assessable shares of Common Stock of the Company (the "WARRANT
STOCK"), calculated pursuant to the following formula: X = $80,000/(A-B),where:
X = the number of shares of Warrant Stock
A = the price per share of shares sold to the public in the IPO
B = the Exercise Price.
The number of shares of Warrant Stock, the type of security constituting the
Warrant Stock and the Exercise Price are subject to adjustment as provided
herein, and all references to "Warrant Stock" and "Exercise Price" herein shall
be deemed to include any such adjustment or series of adjustments.
1. Exercise of Warrant
The purchase rights represented by this Warrant are exercisable, in whole
or in part, at any time and from time to time at or prior to the Expiration
Time, by the surrender of this Warrant and the Notice of Exercise form attached
hereto duly executed to the office of the Company at 0000 Xxxx Xxxxxxxxx, Xxx
Xxxxx, XX 00000, Attn: Corporate Secretary (or such other office or agency of
the Company as it may designate by notice in writing to the registered holder
hereof at the address of such holder appearing on the books of the Company), and
upon payment of the Exercise Price for the shares thereby purchased (by cash or
by check or bank draft payable to the order of the Company or by cancellation of
indebtedness of the Company to the holder hereof, if any, at the time of
exercise in an amount equal to the purchase price of the shares thereby
purchased); whereupon the holder of this Warrant shall be entitled to receive
from the Company a stock certificate in proper form representing the number of
shares of Warrant Stock so purchased, and a new Warrant in substantially
identical form and dated as of such exercise for the purchase of that number of
shares of Warrant stock equal to the difference, if any, between the number of
shares of Warrant Stock subject hereto and the number of shares of Warrant Stock
as to which this Warrant is so exercised.
2. Conversion of Warrant
The registered holder hereof shall have the right to convert this Warrant,
in whole or in part, at any time and from time to time at or prior to the
Expiration Time, by the surrender of this Warrant and the Notice of Conversion
form attached hereto duly executed to the office of the Company at the address
set forth in Section 1 hereof (or such other office or agency of the Company as
it may designate by notice in writing to the registered
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holder hereof at the address of such holder appearing on the books of the
Company), into shares of Warrant Stock as provided in this section 2. Upon
exercise of this conversion right, the holder hereof shall be entitled to
receive that number of shares of Warrant Stock of the Company equal to the
quotient obtained by dividing (A-B) (X) by (A), where:
A = the Fair Market Value (as defined below) of one share of Warrant
Stock on the date of the conversion of this Warrant.
B = the Exercise Price for one share of Warrant Stock as to which this
Warrant.
X = the number of shares of Warrant Stock issuable upon conversion of
this Warrant or, if this Warrant is being converted pursuant hereto
for a fewer number of shares of Warrant Stock, then that number of
shares as to which this Warrant is being converted.
If the above calculation results in a negative number, then no shares of
Warrant Stock shall be issued or issuable upon conversion of this Warrant.
"Fair Market Value" of a share of Warrant Stock shall mean:
(a) if the conversion right is being exercised in connection with a
transaction specified in Section 10(b) hereof, the value of the
consideration (determined, in case of noncash consideration, in
good faith by the Board of Directors of the Company) to be
received pursuant to such transaction by the holder of one share
of Warrant Stock;
(b) if the conversion right is being exercised in connection with the
initial public offering of the Company's Common Stock, the
initial public offering price (before deducting commissions,
discounts or expenses) at which the Common Stock is sold in such
offering;
(c) if the conversion right is being exercised after the occurrence
of the initial public offering the Company's Common Stock;
(i) if the Company's Common Stock is traded on an exchange
or is quoted on the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") National
Market System, the average of the closing or last sale
price reported for the five (5) business days
immediately preceding the date that the Notice of
Conversion is delivered to the Company;
(ii) if the Company's Company Stock is not traded on an
exchange or on the NASDAQ National Market System, but
is traded in the over-the -counter market, the mean of
the closing bid and asked prices reported for the five
(5) business days immediately preceding the date that
the Notice of Conversion is delivered to the company;
and
(d) in all other cases, the fair market value as determined in good
faith by the Company's Board of Directors.
Upon conversion of this Warrant in accordance with this section 2, the
registered holder hereof shall be entitled to receive a certificate for the
number of shares of Warrant Stock determined in accordance with the
foregoing, and new Warrant in substantially identical form and dated as of
such conversion for the purchase of that number of shares of Warrant Stock
equal to the difference, if any, between the number of shares of Warrant
Stock subject hereto and the number of shares of Warrant Stock as to which
this Warrant is so converted.
3. Issuance of shares; No Fractional Shares or Scrip
Certificates for shares purchased hereunder or issuable upon conversion
hereof shall be delivered to the holder hereof within a reasonable time after
the date on which this Warrant shall have been exercised or converted in
accordance with the terms hereof. The Company hereby represents and warrants
that all shares of Warrant Stock which may be issued upon the exercise or
conversion of this Warrant will, upon such exercise or conversion, be duly and
validly authorized and issued, fully paid and nonassessable and free from all
taxes, liens and charges in respect
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of the issuance thereof (other than liens or charges created by or imposed upon
the holder of the Warrant Stock). The Company agrees that the shares so issued
shall be and shall for all purposes be deemed to have been issued to such holder
as the record owner of such shares as of the close of business on which this
Warrant shall have been exercised or converted in accordance with the terms
hereof. No fractional shares or scrip representing fractional shares shall be
issued upon the exercise or conversion of this Warrant. With respect to any
fraction of a share called for upon the exercise or conversion of this Warrant,
an amount equal to such fraction multiplied by the Fair Market Value of a share
of Warrant Stock on the date of exercise or conversion shall be paid in cash or
check to the holder of this Warrant.
4. Charges, Taxes and Expenses
Issuance of certificates for shares of Warrant Stock upon the exercise or
conversion of this Warrant shall be made without charge to the holder hereof for
any issue or transfer tax or other incidental expense in respect of the issuance
of such certificate, all of which taxes and expenses shall be paid by the
Company, and such certificates shall be issued in the name of the holder of this
Warrant.
5. No Rights as a Stockholder
This Warrant does not entitle the holder hereof to any voting rights or
other rights as a stockholder of the Company prior to the exercise or conversion
hereof.
6. Restrictions on Transfer; Lock-Up
(a) Transfer of Warrant: Prior to the Expiration Time and subject to
compliance with applicable laws, this Warrant and all rights
hereunder are transferable by the holder hereof, in whole or in
part, at the office or agency of the Company referred to in
Section 1 hereof. Any such transfer shall be made upon surrender
of this Warrant together with the Assignment Form attached hereto
properly executed, endorsed and guaranteed. Notwithstanding the
foregoing, the Company may prohibit the transfer of this Warrant
and the rights hereunder to more than a single transferee or to a
transferee which the Company reasonably believes to be an actual
or potential competitor of the Company. The Company shall not be
required to effect any transfer of this Warrant or the rights
hereunder unless the transferor and transferee provide the Company
with an opinion of counsel that such transfer is in compliance
with applicable Federal and state securities laws, or provide the
Company with information and representations sufficient for the
Company to make such determination; provided, however, that Holder
may transfer all or part of this Warrant to its affiliates,
including, without limitation, Imperial Bancorp, at any time
without notice to the Company and without any legal opinion, and
such affiliate shall then be entitled to all the rights of Holder
under this Warrant and any related agreements, and the Company
shall cooperate fully in ensuring that any stock issued upon
exercise of this warrant is issued in the name of the affiliate
that exercises the Warrant. The Company shall not be required to
effect any transfer of this Warrant or the rights hereunder unless
the transferee shall have agreed in writing to be bound by the
restrictions set forth in this Warrant.
(b) Transfer of Warrant Stock: The Company may, until the Expiration
Time, prohibit the transfer of the Warrant Stock or Conversion
Stock to more than a single transferee or to a transferee which
the Company reasonably believes to be an actual or potential
competitor of the Company. The Company shall not be required to
effect any transfer of the Warrant Stock or Conversion Stock
unless the transferor and transferee provide the Company with an
opinion of counsel that such transfer is in compliance with
applicable Federal and state securities laws, or provide the
Company with information sufficient for the Company to make such
determination. The Company shall not be required to effect any
transfer of the Warrant Stock or Conversion Stock unless the
transferee shall have agreed in writing to be bound by the
restrictions set forth in this Warrant.
(c) Lock-Up: In connection with the initial public offering of any
securities of the Company; if so requested by the Company or any
representative of the underwriters (the "MANAGING
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UNDERWRITER"), the Warrant, the Warrant Stock or Conversion Stock
and any securities of the Company issued with respect thereto may
not be sold or otherwise transferred during the period specified
by the Company's Board of Directors at the request of the Managing
Underwriter, with such period not to exceed 180 days following the
date of a final prospectus relating to the Company's initial
public offering (the "MARKET STANDOFF PERIOD"). The Company may
impose stop-transfer instructions with respect to securities
subject to the foregoing restrictions until the end of such Market
Standoff Period. The restrictions set forth in this Section 6(c)
shall be of no further force or effect following the transfer of
the securities subject hereto pursuant to a registration statement
filed under the Securities Act or pursuant to a brokers'
transaction or transaction with a market maker pursuant to Rule
144 promulgated under the Securities Act.
(d) No Public Act: At the date of issuance of this Warrant, no public
market exists for any of the securities of the Company and the
Company makes no assurance that a public market will ever exist
for the Company's securities.
(e) Legends: The certificates representing the Warrant Stock or
Conversion Stock and any securities of the Company issued with
respect thereto shall be imprinted with legends restricting
transfer except in compliance with the terms hereof and with
applicable Federal and state securities laws.
7. Exchange and Registry of Warrant
This Warrant is exchangeable, upon the surrender hereof by the registered
holder at the above-mentioned office or agency of the Company, for a new Warrant
in substantially identical form and dated as of such exchange. The Company
shall maintain at the above-mentioned office or agency a registry showing the
name and address of the registered holder of this Warrant. This Warrant may be
surrendered for exchange, transfer, exercise or conversion, in accordance with
its terms, at such office or agency of the Company, and the Company shall be
entitled to rely in all respects upon such registry.
8. Loss, Theft, Destruction or Mutilation of Warrant
On receipt by the Company of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and in
case of any such loss, theft or destruction of this Warrant, on delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, on surrender and cancellation of such
Warrant, the Company will execute and deliver to the holder, in lieu thereof, a
new Warrant in substantially identical form, dated as such cancellation and
reissuance.
9. Saturdays, Sundays and Holidays
If the last or appointed day for the taking of any action or the expiration
of any right required or granted herein shall be a Saturday or a Sunday or shall
be a legal holiday, then such action may be taken or such right may be exercised
on the next succeeding business day.
10. Adjustment to Number and Type of Securities and Exercise Price
The type and number of securities of the Company issuable upon exercise of this
Warrant and the Exercise Price are subject to adjustment as set forth below:
(a) Adjustment for Stock Splits, Stock Dividends, Recapitalizations,
Automatic Conversions, etc.: The Exercise Price and the number and
type of securities and/or other property issuable upon exercise of
this Warrant shall be appropriately and proportionately adjusted
to reflect any stock dividend, stock split, combination of shares,
reclassification, recapitalization, automatic conversion,
redemption or other similar event affecting the number or
character of outstanding shares of Warrant Stock or Conversion
Stock, so that the number and type of securities and/or other
property issuable upon exercise of this Warrant shall be equal to
that which would have been issuable with respect to the number of
shares of Warrant Stock or Conversion Stock subject hereto at the
time of such event, had such shares of Warrant Stock or Conversion
Stock then been outstanding.
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(b) Adjustment for Reorganization, Consolidation, Merger, etc.: In
case of any consolidation or merger of the Company with or into
any other corporation, entity or person, or any other corporate
reorganization, in which the Company shall not be the continuing
or surviving entity of such consolidation, merger or
reorganization, or any transaction in which in excess of 50% of
the Company's voting power is transferred, or any sale of all or
substantially all of the assets of the Company (any such
transaction being hereinafter referred to as a "REORGANIZATION"),
then, in each case, the holder of this Warrant, on exercise or
conversion hereof at any time after the consummation or effective
date of such Reorganization, shall receive, in lieu of the Warrant
Stock or Conversion Stock issuable on such exercise prior to the
date of such Reorganization, the stock and other securities and
property (including cash) to which such holder would have been
entitled upon the date of such Reorganization if such holder had
exercised this Warrant immediately prior thereto.
(c) Certificate as to Adjustments: In case of any adjustment in the
Exercise Price or number and type of securities issuable on the
exercise of this Warrant, the Company will promptly give written
notice thereof to the holder of this Warrant in the form of a
certificate, certified and confirmed by an officer of the Company,
setting forth such adjustment and showing in reasonable detail the
facts upon which such adjustment is based.
11. Representation and Warranties of Holder
In connection with the issuance of this Warrant (this Warrant, the Warrant
Stock and the Conversion Stock, collectively, the "SECURITIES"), Holder hereby
agrees, represents and warrants as follows: (i) Holder is acquiring the
Securities solely for its own account for investment and not with a view to or
for sale or distribution of the Securities or any portion thereof and not with
any present intention of selling, offering to sell or otherwise disposing of or
distributing the Securities or any portion thereof; (ii) the entire legal and
beneficial interest of the Securities is being purchased for, and will be held
for the account of, Holder only and neither in whole nor in part for any other
person; (iii) Hold either (a) has a prior business and/or personal relationship
with the Company and/or its officers and directors, or (b) by reason of its
business or financial experience or the business or financial experience of its
professional advisors who are unaffiliated with the Company, and who are not
compensated by the Company, has the capacity to protect its own interests in
connection with the purchase of the Securities; and (iv) the transaction under
which Holder is purchasing the Securities has not been registered under the
Securities Act, and the Securities must be held indefinitely unless subsequently
registered under the Securities Act or an exemption from such registration is
available.
12. Representations and Warranties of the Company
The Company hereby represents and warrants to the holder hereof that:
(a) during the period this Warrant is outstanding, the Company will
reserve from its authorized and unissued shares of capital stock a
sufficient number of shares to provide for the issuance of Warrant
Stock upon the exercise or conversion of this Warrant;
(b) the issuance of this Warrant shall constitute full authority to
the Company's officers who are charged with the duty of executing
stock certificates to execute and issue the necessary certificates
for the shares of Warrant Stock or Conversion Stock issuable upon
exercise or conversion of this Warrant;.
(c) The Company has all requisite legal and corporate power to execute
and deliver this Warrant, to sell and issue the Warrant Stock or
Conversion Stock hereunder and to carry out and perform its
obligations under the terms of this Warrant; and
(d) All corporate action on the part of the Company, its directors and
stockholders necessary for the authorization, execution, delivery
and performance of this Warrant by the Company, the authorization,
sale, issuance and the delivery of the Warrant Stock or Conversion
Stock and the performance of the Company's obligations hereunder
has been taken.
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13. Cooperation
The Company will not, by amendment of its Certificate of Incorporation or
through any reorganization, recapitalization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the holder of the Warrant against impairment.
14. Governing Law
This Warrant shall be governed by and construed in accordance with the
laws of the State of Delaware.
IN WITNESS WHEREOF, the Company and the Holder have caused this Warrant to
be executed as of the date first written above.
LXN CORPORATION
A Delaware Corporation
By:
--------------------------------
Xxxxxxx X. Xxxxxxxxxx, President
HOLDER
By:
--------------------------------
(SIGNATURE PAGE TO WARRANT FOR LXN COMMON STOCK)
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NOTICE OF EXERCISE
To: LXN Corporation, a Delaware corporation
1. The undersigned hereby elects to purchase _____________ shares of Common
Stock of LXN Corporation, a Delaware corporation, pursuant to the terms of
the attached Warrant, and tenders herewith payment of the purchase price in
full.
2. The undersigned represents that the aforementioned shares are being acquired
for the account of the undersigned for investment and not with a view to, or
for resale in connection with, the distribution thereof and that the
undersigned has no present intentions of distributing or reselling such
shares, except in compliance with applicable Federal and state securities
laws.
3. The undersigned accepts such shares subject to the restrictions on transfer
set forth in the attached Warrant.
-------------------------- -----------------------------------------
(Date) (Signature)
-------------------------- -----------------------------------------
(Date) (Signature)
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NOTICE OF CONVERSION
To: LXN Corporation, a Delaware corporation
1. The undersigned hereby elects to convert that portion of the attached
Warrant representing the right to purchase __________ shares of Common Stock
of LXN Corporation, into such number of shares of Common Stock of LXN
Corporation as is determined pursuant to Section 2 of such Warrant, which
conversion shall be effected pursuant to the terms of the attached Warrant.
2. The undersigned represents that the aforesaid shares are being acquired for
the account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned
has no present intention of distributing or reselling such shares, except in
compliance with applicable federal and state securities laws.
3. The undersigned accepts such shares subject to the restrictions on transfer
set forth in the attached Warrant.
_______________________________ _____________________________________
(Date) (Signature)
_______________________________ _____________________________________
(Date) (Signature)
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ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply the required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are
hereby assigned to
________________________________________________________________________________
(Please Print)
whose address is
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(Please Print)
Dated:
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Holder's Signature:
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Holder's Address:
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Guaranteed Signature:
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NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by an eligible guarantor institution
such as a bank, stockbroker, savings and loan association or credit union with
membership in an approved medallion signature guarantee program. Officers of
corporations and those action in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
The undersigned transferee agrees to hold the Warrant and any Warrant Stock
issuable upon exercise or conversion of the Warrant subject to the restrictions
on transfer set forth in the Warrant.
By:
---------------------------------
Date:
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