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
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THIS CERTIFIES THAT, for value
received, and subject to the conditions on exercise and other
provisions hereinafter set forth,
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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)
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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
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over
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(b)
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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
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divided by
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(c)
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such Current
Market Price of a share of Class A Common Stock.
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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)
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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)
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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.
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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)
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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)
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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.
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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)
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other or
additional stock or Other Securities or property (other than cash)
by way of dividend, or
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(3)
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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 .
(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 consi
