Exhibit 4.6
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH
A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION
THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT OR QUALIFICATION
RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION OR
QUALIFICATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS.
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Issue Date: March 5, 2007
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OPENTABLE, INC.
COMMON STOCK PURCHASE
WARRANT
THIS CERTIFIES THAT, for value
received, Deborah Meredith , and her registered assigns (the
“ Holder ”), is entitled to purchase from
OpenTable, Inc., a Delaware corporation (the “
Company ”), at any time after the date specified in
Section 1 hereof and ending at 5:00 p.m. California time
on the Expiration Date, as such term is defined in Section 1
hereof, 44,271 shares of the Company’s Common Stock (the
“ Warrant Shares ”) at an exercise price (the
“ Exercise Price ”) of $0.39 per share, upon the
terms and subject to the conditions set forth herein (the “
Warrant ”).
1.
Term . This Warrant shall
be exercisable through the first to occur of (a) March 4,
2017, (b) a Liquidation Event (as defined in the
Company’s Amended and Restated Certificate of Incorporation
as in effect on the date hereof) or (c) the consummation of
the initial public offering of shares of the Company’s Common
Stock (the “ Expiration Date ”).
2.
Method of Exercise; Payment;
Issuance of New Warrant . Subject to
Section 1 hereof, the purchase right represented by this
Warrant may be exercised by the Holder, in whole or in part,
by:
(a)
the surrender of
this Warrant (with the Notice of Exercise form attached hereto as
Attachment A ) at the principal office of the Company;
and
(b)
the payment to
the Company, by check or wire transfer, of an amount equal to the
then applicable Exercise Price per share multiplied by the number
of Warrant Shares then being purchased.
If this Warrant should be exercised
in part only, the Company shall, upon surrender of this Warrant,
execute and deliver a new Warrant evidencing the rights of the
Holder thereof to purchase the balance of the Warrant Shares
purchasable hereunder. Upon receipt by the Company of this
Warrant and such notice of exercise, together with, if applicable,
the aggregate Exercise Price, at such office, or by the stock
transfer agent or warrant agent of the Company at its office, the
Holder shall be deemed to be the holder of record of the applicable
Warrant Shares, notwithstanding that the stock transfer books of
the Company shall then be closed or that
certificates representing such Warrant Shares
shall not then be actually delivered to the Holder. The
Holder shall pay any and all documentary stamp or similar issue or
transfer taxes payable in respect of the issue or delivery of the
Warrant Shares.
3.
Net Exercise
. In
addition to and without limiting the rights of the Holder under the
terms of this Warrant, the Holder may elect to convert this Warrant
or any portion thereof (the “ Conversion Right
”) into Warrant Shares, the aggregate value of which Warrant
Shares shall be equal to the value of this Warrant or the portion
thereof being converted. The Conversion Right may be
exercised by the Holder by surrender of this Warrant at the
principal office of the Company together with notice of the
Holder’s intention to exercise the Conversion Right, in which
event the Company shall issue to the Holder a number of Warrant
Shares computed using the following formula:
X = Y(A-B)
A
Where:
X =
The number of Warrant Shares to be
issued to the holder upon exercise of Conversion Right.
Y =
The number of Warrant Shares
issuable upon exercise of this Warrant (or such lesser number as
are being exercised).
A =
The fair market value of one Warrant
Share, as determined by the Board of Directors of the Company, at
the time the Conversion Right is exercised pursuant to
Section 3.
B =
Exercise Price for one Warrant Share
under this Warrant (as adjusted to the date of such
calculations).
4.
Stock Fully Paid; Reservation of
Warrant Shares . All shares of stock
which may be issued upon the exercise of the rights represented by
this Warrant will, upon issuance, be fully paid and nonassessable,
and free from all taxes, liens and charges with respect to the
issue thereof. During the period within which the rights
represented by this Warrant may be exercised, the Company will at
all times have authorized and reserved for the purpose of issue
upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Common Stock to provide for the
exercise of the rights represented by this Warrant.
5.
Adjustment of Exercise Price and
Number of Warrant Shares . The number and kind
of Warrant Shares purchasable upon the exercise of this Warrant and
the Exercise Price shall be subject to adjustment from time to time
upon the occurrence of certain events, as follows:
5.1
Reclassification;
Merger . In case of any
reclassification or change of outstanding securities of the class
issuable upon exercise of this Warrant (other than a change in par
value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination), or in
case of any consolidation or merger of the Company with
or
2
into another corporation
(other than a merger with another corporation in which the Company
is a continuing corporation and which does not result in any
reclassification or change of outstanding securities issuable upon
exercise of this Warrant), or any other corporate reorganization in
which the Company shall not be the continuing or surviving entity
of such consolidation, merger or reorganization, the Holder shall
have the right to receive, in lieu of each share of stock
theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money and property
receivable upon such reclassification, change or merger by a holder
of one share of stock. The provisions of this
Section 5.1 shall similarly apply to successive
reclassifications, changes and mergers.
5.2
Subdivision or Combination of
Warrant Shares . If the Company at any
time while this Warrant remains outstanding and unexpired shall
subdivide or combine its stock, including without limitation
through a reverse stock split, the Exercise Price shall be
proportionately decreased in the case of a subdivision or increased
in the case of a combination.
5.3
Stock Dividends
. If the
Company at any time while this Warrant is outstanding and unexpired
shall pay a dividend with respect to stock payable in, or make any
other distribution with respect to stock (except any distribution
specifically provided for in the foregoing Sections 5.1 and 5.2)
of, stock, then the Exercise Price shall be adjusted, from and
after the date of determination of stockholders entitled to receive
such dividend or distribution, to that price determined by
multiplying the Exercise Price in effect immediately prior to such
date of determination by a fraction (a) the numerator of which
shall be the total number of shares of stock outstanding
immediately prior to such dividend or distribution, and
(b) the denominator of which shall be the total number of
shares of stock outstanding immediately after such dividend or
distribution.
5.4
Adjustment of Number of Warrant
Shares . Upon each adjustment
in the Exercise Price, the number of shares of stock purchasable
hereunder shall be adjusted, to the nearest whole share, to the
product obtained by multiplying the number of Warrant Shares
purchasable immediately prior to such adjustment in the Exercise
Price by a fraction, the numerator of which shall be the Exercise
Price immediately prior to such adjustment and the denominator of
which shall be the Exercise Price immediately
thereafter.
6.
Fractional Warrant
Shares . No fractional Warrant
Shares will be issued in connection with any exercise hereunder,
but in lieu of such fractional shares the Company shall make a cash
payment therefor upon the basis of the Exercise Price then in
effect.
7.
Holder Representations,
Warranties and Covenants .
The Holder hereby
represents and warrants to and covenants with the Company as
follows:
7.1
Authorization
. The
Holder has full power and authority to enter into this
W
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