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Exhibit 4.4
This warrant and any shares
represented by this warrant have not been registered under the
securities act of 1933, as amended, and may not be transferred,
sold or otherwise disposed of except pursuant to an effective
registration under said act or pursuant to an exemption from such
registration. The Warrant represented by this certificated and the
shares issuable hereunder may be sold or otherwise transferred in
compliance with, and are subject to the provisions of, the
Stockholders Agreement dated as of December 16, 1999 among the
issuer hereof and the other parties thereto. Complete and correct
copies of such Agreement are available for inspection at the
principal office of the issuer hereof and will be furnished without
charge to the holder of this Warrant or such shares upon written
request.
KENEXA
CORPORATION
Form of Amended and
Restated Class B Common Stock Purchase Warrant
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No.
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Wayne,
Pennsylvania |
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December
16, 1999 |
KENEXA CORPORATION, a
Pennsylvania corporation (the “Company”), for value
received, hereby certifies that
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(the “Purchaser”), or assigns, is entitled to purchase
from the Company
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duly authorized, validly issued, fully paid and nonassessable
shares of Class A Common Stock, $0.01 par value (the “Class A
Common Stock”), of the Company at the purchase price of
$835.00 (the “Exercise Price”), at any time or from
time to time prior to 5:00 P.M. Boston time, on December 16, 2006
(the “Expiration Date”), all subject to the terms,
conditions and adjustments set forth below in this
Warrant.
This Warrant is one of the
Class A Common Stock Warrants (the “Warrants,” such
term to include any such warrants issued in substitution therefor)
originally issued in connection with the execution and delivery of
the Class B Common Stock and Warrant Purchase Agreement dated as of
December 16, 1999 (as from time to time in effect, the
“Purchase Agreement”) by and among the Company and the
Investors. Certain capitalized terms used in this Warrant are
defined in Section 11 hereof.
1. EXERCISE OR CONVERSION OF
WARRANT.
1.1. Manner of Exercise or
Conversion; Payment.
(a) Exercise. This
Warrant may be exercised by the holder hereof, in whole or in part,
during normal business hours on any Business Day on or prior to the
Expiration Date, by surrender of this Warrant to the Company at its
office maintained pursuant to Section 10.2(a) hereof, accompanied
by a subscription in substantially the form attached to this
Warrant (or a reasonable facsimile thereof) duly executed by such
holder and accompanied by payment, in cash or by check payable to
the order of the Company (or by any combination of such methods),
in the amount obtained by multiplying (a) the number of shares of
Class A Common Stock
(without giving effect to any
adjustment thereof) designated in such subscription by (b) the
Exercise Price, and such holder shall thereupon be entitled to
receive the number of duly authorized, validly issued, fully paid
and nonassessable shares of Class A Common Stock determined as
provided in Section 2 hereof.
(b) Conversion. This
Warrant may be converted by the holder hereof, in whole or in part,
into shares of Class A Common Stock, during normal business hours
on any Business Day on or prior to the Expiration Date, by
surrender of this Warrant to the Company at its office maintained
pursuant to Section 10.2(a) hereof, accompanied by a conversion
notice in substantially the form attached to this Warrant (or a
reasonable facsimile thereof) duly executed by such holder, and
such holder shall thereupon be entitled to receive a number of duly
authorized, validly issued, fully paid and nonassessable shares of
Class A Common Stock equal to the quotient of:
(i) the excess of:
(A) an amount equal to the
sum of (x) the product of (aa) the number of shares of Class A
Common Stock determined as provided in Section 2 hereof which such
holder would be entitled to receive upon exercise of this Warrant
for the number of shares of Class A Common Stock designated in such
conversion notice multiplied by (bb) the Current Market
Price of each such share of Class A Common Stock so designated and
(y) the Current Market Price of any Other Securities and the fair
value of any other property (determined in good faith by the Board
of Directors of the Company) such holder would be entitled to
receive upon exercise of this Warrant for the number of shares of
Class A Common Stock designated in such conversion
notice
over
(B) an amount equal to (x)
the number of shares of Class A Common Stock (without giving effect
to any adjustment thereof) designated in such conversion notice
multiplied by (y) the Exercise Price
divided by
(ii) such Current Market
Price of a share of Class A Common Stock.
For all purposes of this Warrant (other
than this Section 1.1), any reference herein to the exercise of
this Warrant shall be deemed to include a reference to the
conversion of this Warrant into Class A Common Stock in accordance
with the terms of this Section 1.1(b).
1.2. When Exercise
Effective . Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on
the Business Day on which this Warrant shall have been surrendered
to the Company as provided in Section 1.1 hereof, and at such time
the Person or Persons in whose name or names any certificate or
certificates for shares of Class A Common Stock shall be issuable
upon such exercise as provided in Section 1.3 hereof shall be
deemed to have become the holder or holders of record
thereof.
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1.3. Delivery of Stock
Certificates, etc. As soon as practicable after each exercise
of this Warrant, in whole or in part, and in any event within three
Business Days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be
issued in the name of and delivered to the holder hereof or as such
holder may direct:
(a) a certificate or
certificates for the number of duly authorized, validly issued,
fully paid and nonassessable shares of Class A Common Stock to
which such holder shall be entitled upon such exercise plus, in
lieu of any fractional share to which such holder would otherwise
be entitled, cash in an amount equal to the same fraction of the
Current Market Price per share on the Business Day next preceding
the date of such exercise; and
(b) in case such exercise is
in part only, a new Warrant or Warrants of like tenor, dated the
date hereof and calling in the aggregate on the face or faces
thereof for the number of shares of Class A Common Stock equal to
the number of such shares (without giving effect to any adjustment
thereof) called for on the face of this Warrant minus the number of
such shares designated by the holder upon such exercise as provided
in Section 1.1 hereof.
2. ADJUSTMENT OF COMMON STOCK ISSUABLE
UPON EXERCISE.
2.1. General; Number of
Shares; Warrant Price . The number of shares of Class A Common
Stock which the holder of this Warrant shall be entitled to receive
upon each exercise hereof shall be equal to the product
of:
(a) the number of shares of
Class A Common Stock which would otherwise (but for the provisions
of this Section 2) be issuable upon such exercise, as designated by
the holder hereof pursuant to Section 1.1 hereof, and
(b) a fraction of which (i)
the numerator is the Initial Warrant Price, and (ii) the
denominator is the Warrant Price in effect on the date of such
exercise.
The “Initial Warrant Price”
shall be the Exercise Price. The “Warrant Price” shall
initially be the Initial Warrant Price and shall be adjusted and
readjusted from time to time as provided in this Section 3 and, as
so adjusted or readjusted, shall remain in effect until a further
adjustment or readjustment thereof is required by this Section 2.
The “Trigger Price” shall initially be $167 per share
of Class A Common Stock and shall be adjusted and readjusted from
time to time as provided in this Section 2 and, as so adjusted and
readjusted, shall remain in effect until a further adjustment or
readjustment thereof is required by Section 2.
2.2. Adjustments for
Dividends, Distributions, Stock Splits, etc.
(a) Dividends and
Distributions . In case at any time or from time to time, the
holders of Class A Common Stock shall have received, or (on or
after the record date fixed for the determination of shareholders
eligible to receive) shall have become entitled to receive, without
payment therefor:
(i) other or additional stock
or Other Securities or property (other than cash) by way of
dividend, or
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(ii) any cash, or
(iii) other or additional
stock or Other Securities or property (including cash) by way of
spinoff, split-up, reclassification, recapitalization, combination
of shares or similar corporate rearrangement, other
than additional shares of Class A Common Stock issued as a
stock dividend or in a stock split (adjustments in respect of which
are provided for in Section 2.2(b) below), then and in each such
case the holder of this Warrant, on the exercise hereof as provided
in Section 1, shall be entitled without the payment of any
additional consideration or the taking of any further action, to
receive the amount of stock and Other Securities and property
(including cash in the cases referred to in subdivisions (ii) and
(iii) of this Section 2.2(a)) which such holder would hold on the
date of such exercise if on the date hereof such holder had been
the holder of record of the number of shares of Common Stock
provided for herein and had thereafter, during the period from the
date hereof to and including the date of such exercise, retained
such shares and all such other or additional stock and Other
Securities and property (including cash in the cases referred to in
subdivisions (ii) and (iii) of this Section 2.2(a)) receivable by
him as aforesaid during such period, giving effect to all
adjustments called for during such period by this Section
2.
(b) Treatment of Stock
Dividends, Stock Splits, etc. In the event that the Company
shall (i) issue Common Stock Equivalents, or securities exercisable
for or convertible into Common Stock Equivalents, as dividend or
other distribution on outstanding Common Stock Equivalents, (ii)
subdivide its outstanding shares of Common Stock Equivalents, or
(iii) combine its outstanding shares of Common Stock Equivalents
into a smaller number of shares of Common Stock Equivalents, then,
in each such event, the Warrant Price and the Trigger Price shall,
simultaneously with the happening of such event, be adjusted by
multiplying each of the then current Warrant Price and Trigger
Price by a fraction, (a) the numerator of which shall be the number
of shares of Common Stock Equivalents outstanding immediately prior
to such event, and (b) the denominator of which shall be the number
of shares of Common Stock Equivalents outstanding immediately after
such event, and the product so obtained shall thereafter be the
Warrant Price and the Trigger Price, respectively, then in effect.
The Warrant Price and Trigger Price, as so adjusted, shall be
readjusted in the same manner upon the happening of any successive
event or events described herein in this Section 2.2(b). Upon each
adjustment of the Warrant Price or Trigger Price, the holder of
this Warrant shall thereafter be entitled to purchase at the
Warrant Price resulting from such adjustment, the number of shares
obtained by dividing the product of the number of shares
purchasable pursuant hereto immediately prior to such adjustment
and the Warrant Price immediately preceding such adjustment by the
Warrant Price resulting from such adjustment.
2.3. Reorganization,
Consolidation or Merger. In case at any time or from time to
time the Company shall (a) effect a reorganization, (b) consolidate
with or merge into any other Person, (c) voluntarily or
involuntarily dissolve, liquidate or wind-up, or (d) transfer all
or substantially all of its properties or assets to any other
person, then in each such case, as a condition thereto, lawful and
adequate provision shall be made so that the holder of this
Warrant, on the exercise or conversion hereof as provided in
Section 1 at any time after the consummation of such
reorganization, consolidation or merger or the effective date of
such dissolution, as the case may be, shall receive, in lieu of the
Class A Common Stock issuable on such exercise immediately prior to
such consummation or such effective date, the stock and other
securities
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and property (including cash) to which
such holder would have been entitled upon such consummation or in
connection with such reorganization, consolidation, merger or
dissolution, as the case may be, if such holder had so exercised
this Warrant, immediately prior thereto, all subject to further
adjustments thereafter as provided in this Section 2.
2.4. Adjustment for Issuance
of Common Stock Equivalents Below Trigger Price.
(a) General . In any
case to which Sections 2.2 and 2.3 hereof are not applicable, where
the Company shall issue or sell shares of its Common Stock
Equivalents after February 1, 2001 without consideration or for a
consideration per share less than the Trigger Price in effect
pursuant to the terms of this Warrant at the time of issuance or
sale of such additional shares, except where such shares are issued
or sold pursuant to the exercise of any warrant or option or issued
prior to the date of this Warrant or issued in connection with or
pursuant to documentation entered into in connection with a
financing by the Company in which the Company issues shares of
Series A Redeemable Participating Preferred Stock, then the Warrant
Price in effect hereunder shall simultaneously with such issuance
or sale be reduced to a price determined by multiplying the Warrant
Price then in effect hereunder by a fraction, the numerator of
which is the sum of (a) the product of the total number of shares
of Common Stock Equivalents outstanding immediately prior to such
issuance or sale on a fully diluted basis, after giving effect to
the exchange or conversion of all outstanding Convertible
Securities and the exercise of all Options outstanding multiplied
by the Trigger Price in effect hereunder at the time of such
issuance or sale, plus (b) the aggregate consideration received by
the Company upon such issuance or sale, and the denominator of
which is the product of the total number of shares of Common Stock
Equivalents outstanding immediately after issuance or sale of such
additional shares on a fully diluted basis, after giving effect to
the exchange or conversion of all outstanding Convertible
Securities and the exercise of all Options outstanding multiplied
by the Trigger Price in effect hereunder at the time of such
issuance.
(b) Options; Convertible
Securities . In case the Company shall issue or sell any
Options or Convertible Securities after December 16, 1999 there
shall be determined the price per share for which Common Stock
Equivalents are issuable upon the conversion or exercise thereof,
such determination to be made by dividing (a) the sum of the total
amount received or receivable by the Company as consideration for
the issue or sale of such Options or Convertible Securities plus
the minimum aggregate amount of additional consideration payable to
the Company upon the conversion or exercise thereof, by (b) the
maximum number of shares of Common Stock Equivalents of the Company
issuable upon the conversion or exercise of all of such Options or
Convertible Securities. If the price per share so determined shall
be less than the applicable Trigger Price, then, for purposes of
Section 2.4(a) hereof, such issue or sale shall be deemed to be an
issue or sale (as of the date of issue or sale of such Options or
Convertible Securities) of such maximum number of shares of Common
Stock Equivalents at the price per share so determined and such
maximum number of shares shall be deemed to be outstanding after
such issuance, provided that, upon the expiration of such rights of
conversion or exercise of such Options or Convertible Securities,
if any thereof shall not have been exercised, the adjusted Warrant
Price shall forthwith be readjusted and thereafter be the price
which it would have been had an adjustment been made on the basis
that the only shares of Common Stock Equivalents so issued or sold
were issued or sold upon the conversion or exercise of such Options
or Convertible Securities, and that they were issued or sold for
the consideration actually received
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by the Company upon such
conversion or exchange, plus the consideration, if any, actually
received by the Company for the issue or sale of all such Options
or Convertible Securities which shall have been converted or
exchanged.
(c) Record Date . If
the Company takes a record of the holders of Common Stock
Equivalents for the purpose of entitling them (i) to receive a
dividend or other distribution payable in Common Stock Equivalents,
Options or Convertible Securities, or (ii) to subscribe for or
purchase Common Stock Equivalents, Options or Convertible
Securities, then such record date shall be deemed to be the date of
the issue or sale of the shares of Common Stock Equivalents deemed
to have been issued or sold upon the declaration of such dividend
or upon the making of such other distribution or the date of the
granting of such right of subscription or purchase, as the case may
be.
(d) Termination Upon a
Qualified Public Offering . This Section 2.4 shall terminate,
and no adjustments under this Section 2.4 shall be required, upon
the consummation of a Qualified
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