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Exhibit 4.5
EXHIBIT D
This warrant and any
shares represented by this warrant have not been registered under
the Securities Act of 1933, as amended, or under applicable state
securities laws and may not be transferred, sold or otherwise
disposed of except pursuant to an effective registration under said
act and applicable state securities laws or pursuant to an
exemption from such registration.
The voting of the shares
of stock issuable pursuant to this warrant, and the sale,
encumbrance or other disposition of such stock and this warrant are
subject to the provisions of a Stockholders Agreement dated as of
December 16, 1999 (the “Stockholders Agreement”) to
which the issuer and certain of its stockholders are party.
Furthermore, such stock and this warrant may be sold or otherwise
transferred only in compliance with the Stockholders Agreement. A
complete and correct copy of the Stockholders Agreement may be
inspected at the principal office of the issuer or obtained from
the issuer without charge.
KENEXA
CORPORATION
Form of Amended and
Restated Class D Common Stock Purchase Warrant
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No.
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Wayne, Pennsylvania |
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December 16, 1999 |
THIS CERTIFIES THAT, for
value received, and subject to the conditions on exercise and other
provisions hereinafter set forth,
[ ]
or transferees permitted under the Stockholders Agreement
(“Holder”) is entitled to purchase from Kenexa
Corporation, a Pennsylvania corporation (the
“Company”), under the conditions specified in this
Warrant (the “Warrant”), [ ]
shares (subject to adjustment as hereinafter provided) of the duly
authorized, validly issued, fully paid and non-assessable Class A
Common Stock, $0.01 par value per share (“Class A Common
Stock”), of the Company at an initial exercise price of
$167.00 per share (such exercise price, as from time to time
adjusted in accordance with the terms hereof, the “Warrant
Price”). Certain capitalized terms used in this Warrant are
defined in Section 12 below.
This Warrant is one of a
series of warrants (collectively, the “Warrants”)
issued pursuant to clause (b) of Section 2.3 of the Purchase
Agreement. A copy of the Purchase Agreement may be inspected at the
principal office of the Company or obtained from the Company
without charge.
1. EXERCISABILITY. This Warrant shall
become exercisable on December 16, 1999 but may not be exercised
later than December 16, 2006.
2. EXERCISE OR CONVERSION OF
WARRANT.
2.1 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 after the
date hereof, by surrender of this Warrant to the Company at its
office maintained pursuant to Section 11.2(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 Warrant 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 this
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 after the date hereof, by surrender of
this Warrant to the Company at its office maintained pursuant to
Section 11.2(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:
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(a) |
an amount equal to the sum of (x) the product of (aa) the
number of shares of Class A Common Stock 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
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(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 Warrant
Price |
divided by
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(c) |
such Current Market Price of a share of Class A Common
Stock. |
For all purposes of this
Warrant (other than this Section 2.1), 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 2.1
2.2 When Exercise
Effective . Each exercise or conversion 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 2.1 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 2.3
hereof shall be deemed to have become the Holder or Holders of
record thereof.
2.3 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:
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(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 |
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(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 2.1
hereof. |
2.4 Each certificate for
Warrant Common Stock initially issued upon exercise of this
Warrant, unless at the time of exercise such Warrant Common Stock
are registered under the Securities Act, shall bear the following
legend (and any additional legend required by any securities
exchange upon which such Warrant Class A Common Stock may, at the
time of such exercise, be listed) on the face thereof:
“These securities have
not been registered under the Securities Act of 1933, as amended,
or under any state securities laws and may be offered, sold or
transferred only if registered pursuant to the provisions of such
laws, or if in the opinion of counsel satisfactory to the Company,
an exemption from such registration is available.”
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3. ADJUSTMENT OF WARRANT PRICE AND CLASS
A COMMON STOCK ISSUABLE UPON EXERCISE.
3.1 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:
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(a) |
the number of shares of Class A Common Stock which would
otherwise (but for the provisions of this Section 3) be issuable
upon such exercise, as designated by the Holder hereof pursuant to
Section 2.1 hereof, and |
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(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 $167.00. 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 3.
3.2 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:
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(1) |
other or additional stock or Other Securities or property
(other than cash) by way of dividend, or |
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(3) |
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 3.2(b)
below),
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then and in each such case
the Holder of this Warrant, on the exercise hereof as provided in
Section 2, 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 3.2(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 3.2(a)) receivable by such Holder as
aforesaid during such period, giving effect to all adjustments
called for during such period by this Section 3.
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(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 the Common Stock Equivalents,
then, in each such event, the Warrant Price shall, simultaneously
with the happening of such event, be adjusted by multiplying the
then current Warrant 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 then in
effect. The Warrant 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 3.2. Upon each adjustment
of the Warrant 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.
3.3 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 2 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 and property (including cash) to which such Holder would
have been entitled upon such consummation or in connection with
such reorganization, consolidation, merger or
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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 3.
3.4 Adjustment for
Issuance of Common Stock Equivalents Below Warrant Price
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(a) General . In any
case to which Sections 3.2 and 3.3 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 (or evidencing a value of Common Stock Equivalents)
per share less than the Warrant 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 Warrant 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 Warrant 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 (i) 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 (ii) 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 Warrant Price in effect immediately
prior to such issuance, then, for purposes of Section 3.4(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
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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 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 (1) to receive a
dividend or other distribution payable in Common Stock Equivalents,
Options or Convertible Securities, or (2) 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 3.4 shall terminate,
and no adjustments under this Section 3.4 shall be required, upon
the consummation of a Qualified Public Offering.
3.5 Minimum Adjustment of
Warrant Price . If the amount of any adjustment of the Warrant
Price required pursuant to this Section 3 would be less than
one-tenth (1/10) of one percent (1%) of the Warrant Price in effect
at the time such adjustment is otherwise so required to be made,
such amount shall be carried forward and adjustment with respect
thereto made at the time of and together with any subsequent
adjustment which, together with such amount and any other amount or
amounts so carried forward, shall aggregate at least one tenth
(1/10) of one percent (1%) of such Warrant Price.
3.6 Shares Deemed
Outstanding . For all purposes of the computations to be made
pursuant to this Section 3, treasury shares shall not be deemed to
be outstanding.
3.7 Calculation of
Consideration Received. If any Common Stock Equivalents,
Options or Convertible Securities are issued or sold or deemed to
have been issued or sold for cash, the consideration received
therefor shall be deemed to be the amount received by the Company
therefor (net of discounts, commissions and related expenses). If
any Common Stock Equivalents, Options or Convertible Securities are
issued or sold for a consideration other than cash, the amount of
the consideration other than cash received by the Company shall be
the fair value of such consideration, except where such
consideration consists of securities, in which case the amount of
consideration received by the Company shall be the Current Market
Price thereof as of the date of receipt. For purposes of this
Warrant, the fair value of any consideration other
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than cash and securities shall be
determined by the board of directors of the Company using its good
faith discretion.
3.8 Integrated
Transactions. In case any Options are issued in connection with
the issue or sale of Other Securities of the Company, together
comprising one integrated transaction in which no specific
consideration is allocated to such
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