Exhibit 4.4
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AS AMENDED, OR ANY STATE SECURITIES
LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL (WHICH
MAY BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAWS.
WARRANT AGREEMENT
To Purchase Shares of the
Series X Preferred Stock of
OPENTABLE.COM,
INC.
Dated as of April 25, 2000
(the “Effective Date”)
WHEREAS , OpenTable.com, a California corporation (the
“Company”) has entered into a Master Lease Agreement
dated as of August 3, 1999, Equipment Schedule No. VL-3
and VL-4 dated as of April 25, 2000 (collectively, the
“Schedules”), and related Summary Equipment Schedules
(collectively, the “Leases”) with Comdisco, Inc.,
a Delaware corporation (the “Warrantholder”);
and
WHEREAS , the Company desires to grant to Warrantholder,
in consideration for such Leases, the right to purchase shares of
its equity securities sold in the Company’s next private
equity financing (the “Series X Preferred
Stock”);
NOW, THEREFORE , in consideration of the
Warrantholder executing and delivering such Leases and in
consideration of mutual covenants and agreements contained herein,
the Company and Warrantholder agree as follows:
1.
GRANT OF THE
RIGHT TO PURCHASE PREFERRED STOCK .
For the Phase I portion of Equipment
Schedules VL-3 and VL-4 the Company hereby grants to the
Warrantholder, and the Warrantholder is entitled, upon the terms
and subject to the conditions hereinafter set forth, to subscribe
to and purchase, from the Company, such number of fully paid and
non-assessable shares of the Company’s Series X
Preferred Stock (“Preferred Stock”) equal to $125,000
divided by the exercise price equal to $0.85 (“Exercise Price
I”).
For the Phase II portion of
Equipment Schedule VL-4 and if, and only if, the Warrantholder
makes the Phase II portion available thereunder, the Warrantholder
shall be entitled, upon the terms and subject to the conditions
hereinafter set forth, to subscribe to and purchase, from the
Company, such number of fully paid and non-assessable shares of the
Company’s preferred stock equal to $400,000 divided by the
exercise price equal to the price per share of stock sold to
investors in the Next Round “Exercise Price II”).
Hereinafter the term Exercise Price shall mean both Exercise Price
I and Exercise Price II.
Next Round shall be defined as
(i) preferred stock financing of at least $15,000,000,
(ii) the sale, conveyance disposal, or encumbrance of all or
substantially all of the Company’s property or business or
Company’s merger into or consolidation with any other
corporation (other than a wholly-owned subsidiary corporation) or
any other transaction or series of related transactions in which
more than fifty percent (50%) of the voting power of Company is
disposed of (“Merger Event”), provided that a Merger
Event shall not apply to a merger effected exclusively for the
purpose of changing the domicile of the company or (iii) an
initial public offering of the Company’s Common Stock which
such public offering has been declared effective by the SEC.
In the event that the Next Round is an initial public offering or
Merger Event then the Exercise Price shall be the lesser of
(i) the initial public offering price or Merger Event or
(ii) the price per share equivalent to a $150 million
pre-money valuation for all amounts taken down after the date of
the close of the initial public offering or Merger
Event.
The number and purchase price of
such shares are subject to adjustment as provided in Section 8
hereof.
1
2.
TERM OF THE
WARRANT AGREEMENT .
Except as otherwise provided for
herein, the term of this Warrant Agreement and the right to
purchase Preferred Stock as granted herein shall commence on the
Effective Date and shall be exercisable for a period of
(i) ten (10) years or (ii) five (5) years from
the effective date of the Company’s initial public offering,
whichever is shorter.
Notwithstanding the term of this
Warrant Agreement fixed pursuant to the above paragraph, the right
to purchase Preferred Stock as granted herein shall expire, if not
previously exercised immediately upon the closing of a merger or
consolidation of the Company with or into another corporation when
the Company is not the surviving corporation, or the sale of all or
substantially all of the Company’s properties and assets to
any other person (the “Merger”) provided in which
Warrantholder realizes a value for its shares equal to or greater
than a per share price of at least 3 times the Exercise
Price.
The Company shall notify the
Warrantholder if the Merger is proposed in accordance with the
terms of 8(f) hereof, and if the Company fails to deliver such
written notice, then notwithstanding anything to the contrary in
this Warrant Agreement, the rights to purchase the Company’s
Preferred Stock shall not expire until the Company complies with
such notice provisions. Such notice shall also contain such
details of the proposed Merger as are reasonable in the
circumstances. If such closing does not take place, the
Company shall promptly notify the Warrantholder that such proposed
transaction has been terminated, and the Warrantholder may rescind
any exercise of its purchase rights promptly after such notice of
termination of the proposed transaction if the exercise of Warrants
has occurred after the Company notified the Warrantholder that the
Merger was proposed. In the event of such rescission, the
Warrants will continue to be exercisable on the same terms and
conditions contained herein.
3.
EXERCISE OF
THE PURCHASE RIGHTS .
The purchase rights set forth in
this Warrant Agreement are exercisable by the Warrantholder, in
whole or in part, at any time, or from time to time, prior to the
expiration of the term set forth in Section 2 above, by
tendering to the Company at its principal office a notice of
exercise in the form attached hereto as Exhibit I (the
“Notice of Exercise”), duly completed and
executed. Promptly upon receipt of the Notice of Exercise and
the payment of the purchase price in accordance with the terms set
forth below, and in no event later than twenty-one (21) days
thereafter, the Company shall issue to the Warrantholder a
certificate for the number of shares of Preferred Stock purchased
and shall execute the acknowledgment of exercise in the form
attached hereto as Exhibit II (the “Acknowledgment of
Exercise”) indicating the number of shares which remain
subject to future purchases, if any.
The Exercise Price may be paid at
the Warrantholder’s election either (i) by cash or
check, or (ii) by surrender of Warrants (“Net
Issuance”) as determined below. If the Warrantholder
elects the Net Issuance method, the Company will issue Preferred
Stock in accordance with the following formula:
