Exhibit 4.5
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR
PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE CORPORATION AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE STOCK
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Corporation:
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OpenTable, Inc., a Delaware
corporation
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Number of Shares:
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1,108,638
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Class of Stock:
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Series A Preferred Stock
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Initial Exercise Price:
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$0.08118067 per share.
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Issue Date:
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June 6, 2003
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Expiration Date:
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June 6, 2010 (Subject to
Section 4.1)
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THIS WARRANT CERTIFIES THAT, for
good and valuable consideration, the receipt of which is hereby
acknowledged, COMERICA BANK - CALIFORNIA or its assignee
(“Holder”) is entitled to purchase the number of fully
paid and nonassessable shares of the Class of Stock (the
“Shares”) of the corporation (the
“Company”) at the Initial Exercise Price per Share (the
“Warrant Price”) all as set forth above and as adjusted
pursuant to Article 2 of this Warrant, subject to the
provisions and upon the terms and conditions set forth in this
Warrant.
ARTICLE 1
EXERCISE
1.1
Method of Exercise
. Holder may exercise this
Warrant, in whole or in part, by delivering this Warrant and a duly
executed Notice of Exercise in substantially the form attached as
Appendix 1 to the principal office of the Company. Unless
Holder is exercising the conversion right set forth in
Section 1.2, Holder shall also deliver to the Company a check
for the aggregate Warrant Price for the Shares being
purchased.
1.2
Conversion Right
. In lieu of exercising this
Warrant as specified in Section 1.1, Holder may from time to
time convert this Warrant, in whole or in part, into a number of
Shares determined by dividing (a) the aggregate fair market
value of the Shares or other securities otherwise issuable upon
exercise of this Warrant minus the aggregate Warrant Price of such
Shares by (b) the fair market value of one Share. The
fair market value of the Shares shall be determined pursuant to
Section 1.3. No fractional shares shall be issuable upon
exercise of the Conversion Right provided herein and, if the number
of shares to be issued determined in accordance with the foregoing
formula is other than a whole number, the Company shall pay the
Holder an amount in cash equal to the fair market value of the
resulting fractional share.
1.3
Fair Market Value
. If the Shares are traded
regularly in a public market, the fair market value of the Shares
shall be the closing price of the Shares (or the closing price of
the Company’s stock into which the Shares are convertible)
reported for the business day immediately before Holder delivers
its Notice of Exercise to the Company. If the Shares are
not
regularly traded in a public market, the Board
of Directors of the Company shall determine fair market value in
its reasonable good faith judgment.
1.4
Delivery of Certificate and New
Warrant . Promptly
after Holder exercises or converts this Warrant, the Company shall
deliver to Holder certificates for the Shares acquired and, if this
Warrant has not been fully exercised or converted and has not
expired, a new Warrant representing the Shares not so acquired;
provided however , at such time as the Company is subject to
the reporting requirements of the Securities Exchange Act of 1934,
as amended (the “ Exchange Act ”), if
requested by the Holder of this Warrant, the Company shall cause
its transfer agent to deliver the certificate representing the
Shares issued upon exercise of this Warrant to a broker or other
person (as directed by the Holder) after exercising of this
Warrant. The person or persons in whose name(s) any
certificate(s) representing the Shares issuable upon exercise
of this Warrant shall be deemed to have become the holder(s) of
record of, and shall be treated for all purposes as the record
holder(s) of the Shares represented thereby (and such Share
shall be deemed to have been issued) immediately prior to the close
of business on the date or dates upon which this Warrant is
exercised.
1.5
Replacement of
Warrants . On
receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant and, in the
case of loss, theft or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and amount to the Company
or, in the case of mutilation, on surrender and cancellation of
this Warrant, the Company at its expense shall execute and deliver,
in lieu of this Warrant, a new Warrant of like tenor.
1.6
Stock Fully Paid; Reservation of
Shares . All Shares
that may be issued upon the exercise of the rights represented by
this Warrant will, upon issuance pursuant to the terms and
conditions herein, be fully paid and nonassessable, and free from
all preemptive rights and 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 the
issue upon exercise of the purchase rights evidenced by this
Warrant, a sufficient number of shares of its Series A
Preferred Stock (the “ Series Preferred
”) to provide for the exercise of the rights represented by
this Warrant and a sufficient number of shares of its common stock
(the “ Common Stock ”) to provide for the
conversion of the Series Preferred into Common
Stock.
1.7
Repurchase on Sale, Merger, or
Consolidation of the Company .
1.7.1
“Acquisition.”
For the purpose of this
Warrant, “Acquisition” means any sale, license, or
other disposition of all or substantially all of the assets
(including intellectual property) of the Company, or any
reorganization, consolidation, or merger of the Company where the
holders of the Company’s securities before the transaction
beneficially own less than 50% of the outstanding voting securities
of the surviving entity after the transaction.
1.7.2
Assumption of Warrant
. If upon the closing of any
Acquisition the successor entity assumes the obligations of this
Warrant, then this Warrant shall be exercisable for the same
securities, cash, and property as would be payable for the Shares
issuable upon exercise of the unexercised portion of this Warrant
as if such Shares were outstanding on the
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record date for the Acquisition and subsequent
closing. The Warrant Price shall be adjusted
accordingly. The Company shall use reasonable efforts to
cause the surviving corporation to assume the obligations of this
Warrant.
1.7.3
Nonassumption
. If upon the closing of any
Acquisition the successor entity does not assume the obligations of
this warrant and Holder has not otherwise exercised this Warrant in
full, then Holder shall have the option to deem this Warrant to
have been automatically converted pursuant to Section 1.2 and
thereafter Holder shall participate in the Acquisition on the same
terms as other holders of the same class of securities of the
Company.
ARTICLE 2
ADJUSTMENTS TO THE SHARES
2.1
Stock Dividends, Splits,
Etc . If the
Company declares or pays a dividend on its common stock payable in
common stock, or other securities, subdivides the outstanding
common stock into a greater amount of common stock, then upon
exercise of this Warrant, for each Share acquired, Holder shall
receive, without cost to Holder, the total number and kind of
securities to which Holder would have been entitled had Holder
owned the Shares of record as of the date the dividend or
subdivision occurred.
2.2
Reclassification, Exchange or
Substitution . Upon
any reclassification, combination, consolidation, exchange,
substitution, or other event that results in a change of the number
and/or class of the securities issuable upon exercise or conversion
of this Warrant, Holder shall be entitled to receive, upon exercise
or conversion of this Warrant, the number and kind of securities
and property that Holder would have received for the Shares if this
Warrant had been exercised immediately before such
reclassification, combination, consolidation, exchange,
substitution, or other event. Such an event shall include any
conversion of all outstanding or issuable securities of the Company
of the same class or series as the Shares to common stock pursuant
to the terms of the Company’s Certificate of
Incorporation. The Company or its successor shall promptly
issue to Holder a new Warrant for such new securities or other
property. The new Warrant shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 2 including, without
limitation, adjustments to the Warrant Price and to the number of
securities or property issuable upon exercise of the new
Warrant. The provisions of this Section 2.2 shall
similarly apply to successive reclassifications, exchanges,
substitutions, or other events.
2.3
Adjustments for Combinations,
Etc . If the
outstanding Shares are combined or consolidated, by
reclassification or otherwise, into a lesser number of shares, the
Warrant Price shall be proportionately increased. If the
outstanding Shares are subdivided or increased by dividend or other
distribution, by reclassification or otherwise, into a greater
number of shares, the Warrant Price shall be proportionately
decreased.
2.4
Adjustments for Diluting
Issuances . The
conversion price of the Shares issuable upon exercise of this
Warrant shall be subject to adjustment, from time to time, in the
manner set forth in and in accordance with the Company’s
Certificate of Incorporation (as amended from time to time in
accordance herewith (the “ Charter ”))
provided , however , that
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notwithstanding anything to the contrary in the
foregoing, under no circumstances shall the aggregate Warrant Price
payabl
