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EXHIBIT 4.10
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
PLUMTREE SOFTWARE, INC.
Warrant for the Purchase of Shares of Common Stock
No. WS-3 8,639 Shares
FOR VALUE RECEIVED, Plumtree Software, Inc., a California corporation (the
"Company"), with its principal office at 500 Sansome Street, San Francisco,
California 94111, hereby certifies that WXI/SAN Realty, L.L.C. or its registered
assigns (the "Holder") is entitled, subject to the provisions of this Warrant,
to purchase from the Company, the number of fully paid and nonassessable shares
of Common Stock of the Company set forth above.
This Warrant shall be exercisable, in whole or in part, at any time or from
time to time after the date hereof and on or before 5:00 p.m. Pacific Time on
December 31, 2006.
The Holder may purchase the above number of shares of Common Stock at a
purchase price per share (as appropriately adjusted pursuant to Section 6
hereof) of nine dollars and sixty cents ($9.60) (the "Exercise Price"). The
term "Common Stock" shall mean the aforementioned Common Stock of the Company,
together with any other equity securities that may be issued by the Company in
addition thereto or in substitution therefor as provided herein.
The number of shares of Common Stock to be received upon the exercise of
this Warrant and the price to be paid for a share of Common Stock are subject
to adjustment from time to time as hereinafter set forth. The shares of Common
Stock deliverable upon such exercise, as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares".
This Warrant is subject to all the provisions of that certain Warrant
Agreement between Holder and the Company, dated September 20, 2000 (the
"Agreement"), pursuant to which this Warrant was issued.
Exercise of Warrant
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(a) This Warrant may be exercised at any time at or before 5:00 P.M.,
Pacific time on December 31, 2006 (the "Expiration Date") (or, if such day is
not a business day, at or before 5:00 P.M., Pacific time, on the next following
business day). The Company shall give the Holder written notice of the Holder's
right to exercise this Warrant not more than ninety (90)
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days and not less than thirty (30) days before the Expiration Date (the
"Expiration Notice"). If the Expiration Notice is not so given, the Expiration
Date shall automatically be extended until thirty (30) days after the Company
delivers the Expiration Notice to the Holder. If (i) the Holder fails to provide
written notice to the Company of its intention not to exercise this Warrant;
(ii) as of the Expiration Date, the Fair Market Value (as defined below) of one
share of Common Stock (as determined in accordance with Section 1(b) below) is
greater than the Exercise Price; and (iii) this Warrant is not exercised on or
before the Expiration Date, as the same may be extended pursuant hereto, this
Warrant shall be deemed to have been exercised pursuant to Section 1(b) below as
of the Expiration Date.
Subject to the provisions set forth above, this Warrant may be
exercised in whole or in part by presentation and surrender hereof to the
Company at its principal office at the address set forth in the initial
paragraph hereof (or at such other address as the Company may hereafter notify
the Holder in writing) with the Purchase Form annexed hereto duly executed and
accompanied by proper payment of the Exercise Price (i) in lawful money of the
United States of America in the form of a certified or cashier's check (ii) by
cancellation by the Holder of indebtedness or other obligation of the Company to
the Holder, or (iii) by a combination of (i) and (ii), for the number of Warrant
Shares specified in the Purchase Form. 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 Purchase Form, together with proper payment of
the Exercise Price, at such office, the Holder shall be deemed to be the holder
of record of the 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 Company
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.
(b) Notwithstanding the foregoing, upon such exercise pursuant to
Section 1(a), in lieu of payment of the Exercise Price, the Holder may instead
elect to receive that number of shares of Common Stock of the Company equal to
the quotient obtained by dividing [(A-B)(C)] by A, where:
(A) = the Fair Market Value (as defined below) of one share of
Common Stock on the date of exercise of this Warrant;
(B) = the Exercise Price for one share of Common Stock under this
Warrant (as adjusted to the date of such calculation); and
(C) = the number of shares of Common Stock issuable upon exercise of
this Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being canceled (at the
date of such calculation).
If the above calculation results in a negative number, then no shares of Common
Stock shall be issued or issuable upon exercise of this Warrant pursuant to this
Section 1(b).
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For purposes hereof, "Fair Market Value" of a share of Common Stock shall
mean:
(A) where there exists a public market for the Company's Common
Stock at the time of such exercise, the fair market value per share of Common
Stock shall be the average of the closing bid and asked prices of the Common
Stock quoted in the Over-The-Counter Market Summary or the last reported sale
price of the Common Stock or the closing sale price quoted on the NASDAQ
National Market System or on any exchange on which the Common Stock is listed,
whichever is applicable. Notwithstanding the forgoing, in the event the Warrant
is exercised in connection with the Company's initial public offering of Common
Stock ("IPO"), the fair market value per share shall be the per share initial
offering price to the public of the Company's IPO, or
(B) in all other cases, the fair market value as determined in
good faith by the Company's Board of Directors and communicated in writing to
Holder upon Holder's written request, unless prior to such date the Company has
become subject to a reorganization, merger, acquisition or other consolidation
pursuant to which the Company is not the surviving party, in which case the Fair
Market Value shall be deemed to be the value received by the holders for each
Warrant Share pursuant to the Company's merger, acquisition or consolidation.
Upon exercise of this Warrant pursuant to this Section 1(b), the
registered holder hereof shall be entitled to receive a certificate for the
number of shares of Common Stock determined as aforesaid within a reasonable
time not to exceed 20 days after exercise of the stock purchase rights
represented by this Warrant.
Section 2. Reservation of Shares. The Company hereby agrees that at all
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times there shall be reserved for issuance and delivery upon exercise of this
Warrant all shares of its Common Stock or other shares of capital stock of the
Company from time to time issuable upon exercise of this Warrant. All such
shares shall be duly authorized and, when issued upon such exercise in
accordance with the terms of this Warrant, shall be validly issued, fully paid
and nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on sale (other than as provided in the
Company's articles of incorporation and any restrictions on sale set forth
herein or pursuant to applicable federal and state securities laws) and free and
clear of all preemptive rights.
Section 3. Fractional Interest. The Company will not issue a fractional
-------------------
share of Common Stock upon exercise of a Warrant. Instead, the Company will
deliver its check for the Fair Market Value of such fraction of a share, rounded
to the nearest cent.
Section 4. Assignment or Loss of Warrant.
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(a) Except as otherwise provided herein, the Holder of this Warrant
shall not be entitled, without obtaining the consent of the Company, to assign
its interest in this Warrant in whole or in part to any person or persons;
provided, however, that this warrant may be assigned without the Company's
consent (i) to any direct or indirect partner, member, parent, subsidiary or
affiliate of Warrant Holder, and (ii) to any successors or assigns in connection
with any merger, sale of assets, reorganization, or similar event or to an
affiliate of such assignee or successor in compliance with the provisions of
Section 8. Subject to the provisions of Section 8, and the
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obtaining of such consent of the Company, where required, upon surrender of this
Warrant to the Company or at the office of its stock transfer agent or warrant
agent, with the Assignment Form annexed hereto duly executed and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant or Warrants in the name of the assignee or assignees
named in such instrument of assignment and, if the Holders entire interest is
not being assigned, in the name of the Holder, and this Warrant shall promptly
be canceled.
(b) Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant, and (in the case of loss,
theft or destruction) of indemnification reasonably satisfactory to the Company
(but without the requirement of a bond), and upon surrender and cancellation of
this Warrant, if mutilated, the Company shall execute and deliver a new Warrant
of like tenor and date.
Section 5. Rights of the Holder. The Holder shall not, by virtue hereof,
--------------------
be entitled to any rights of a shareholder in the Company, either at law or
equity, and the rights of the Holder are limited to those expressed in this
Warrant. Nothing contained in this Warrant shall be construed as conferring upon
the Holder hereof the right to vote or to consent or to receive notice as a
shareholder of the Company on any matters or any rights whatsoever as a
shareholder of the Company. No dividends or interest shall be payable or accrued
in respect of this Warrant or the interest represented hereby or the Warrant
Shares purchasable hereunder until, and only to the extent that, this Warrant
shall have been exercised in accordance with its terms.
Section 6. Adjustment of Exercise Price and Number of Shares. The number
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and kind of securities purchasable upon the exercise of each Warrant and the
Exercise Price shall be subject to adjustment from time to time upon the
happening of certain events, as follows:
(a) Adjustment for Change in Capital Stock. If the Company:
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(A) pays a dividend or makes a distribution on its Common Stock
in shares of its Common Stock;
(B) subdivides its outstanding shares of Common Stock into
greater number of shares;
(C) combines its outstanding shares of Common Stock into a
smaller number of shares;
(D) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; or
(E) issues by reclassification of its Common Stock any shares of
its capital stock;
then the exercise right and the Exercise Price in effect immediately prior to
such action shall be adjusted so that the Holder may receive upon exercise of
the Warrants the number of shares of capital stock of the Company which the
Holder would have owned immediately following such action if the Holder had
exercised the Warrants immediately prior to such action. When any adjustment is
required to be made in the Exercise Price, the number of Warrant Shares
receivable
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upon the exercise of this Warrant shall be changed to the number determined by
dividing (a) an amount equal to the number of Warrant Shares issuable upon the
exercise of this Warrant immediately prior to such adjustment, multiplied by the
Exercise Price in effect immediately prior to such adjustment, by (b) the
Exercise Price in effect immediately after such adjustment.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
(b) Notice of Adjustments. Whenever the Exercise Price or number of
---------------------
Warrant Shares issuable upon exercise hereof shall be adjusted pursuant to this
section, the Company shall issue a certificate signed by the secretary of the
Company setting forth, in reasonable detail, the event requiring the adjustment,
the amount of the adjustment, the method by which such adjustment was calculated
and the Exercise Price and number of Warrant Shares purchasable hereunder after
giving effect to such adjustment, and shall cause a copy of such certificate to
be mailed to the holder of this Warrant.
(c) Deferral of Issuance or Payment. In any case in which an event
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covered by this Section 6 shall require that an adjustment in the Exercise Price
be made effective as of a record date, the Company may elect to defer until the
occurrence of such event (i) issuing to the Holder, if this Warrant is exercised
after such record date, the shares of Common Stock and other capital stock of
the Company, if any, issuable upon such exercise over and above the shares of
Common Stock or other capital stock of the Company, if any, issuable upon such
exercise on the basis of the Exercise Price in effect prior to such adjustment,
and (ii) paying to the Holder by check any amount in lieu of the issuance of
fractional shares pursuant to Section 3.
(d) When No Adjustment Required. No adjustment need be made for a
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change in the par value or no par value of the Common Stock.
(e) Notice of Certain Actions. In the event that
-------------------------
(A) the Company shall authorize the issuance to all holders of
its Common Stock of rights, warrants, options or convertible securities to
subscribe for or purchase shares of its Common Stock or of any other
subscription rights, warrants, options or convertible securities; or
(B) the Company shall authorize the distribution to all holders
of its Common Stock of evidences of its indebtedness or assets (other than
dividends paid in or distributions of the Company's capital stock for which the
Exercise Price shall have been adjusted pursuant to subsection (a) of this
Section 6 or regular cash dividends or distributions payable out of earnings or
earned surplus and made in the ordinary course of business); or
(C) the Company shall authorize any capital reorganization or
reclassification of the Common Stock (other than a subdivision or combination of
the outstanding Common Stock and other than a change in par value of the Common
Stock ) or of any consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required (other than a
consolidation or merger in which the Company is the continuing corporation and
that does not result in any reclassification or change
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of the capital stock outstanding), or of the conveyance or transfer of the
properties and assets of the Company as an entirety or substantially as an
entirety; or
(D) the Company is the subject of a voluntary or involuntary
dissolution, liquidation or winding-up procedure;
(E) the Company proposes to take any action (other than actions
of the character described in subsection (a) or (b) of this Section 6) that
would require an adjustment of the Exercise Price pursuant to this Section 6; or
(F) the Company has filed a registration statement relating to
an initial public offering of its Common Stock;
then the Company shall cause to be mailed by first-class mail to the Holder, at
least twenty (20) days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date as of which the holders of
Common Stock of record to be entitled to receive any such rights, warrants or
distributions are to be determined, or (y) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding-up is expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their shares of for securities or other property, if any, deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding-up.
(f) Common Stock Defined. Whenever reference is made in this Section
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6 to the issue of shares of Common Stock, the term "Common Stock" shall include
any equity securities of any class of the Company hereinafter authorized which
shall not be limited to a fixed sum or percentage in respect of the right of the
holders thereof to participate in dividends or distributions of assets upon the
voluntary or involuntary liquidation, dissolution or winding-up of the Company.
However, subject to the provisions of Section 7 hereof, shares issuable upon
exercise hereof shall include only shares of the class designated as Common
Stock of the Company as of the date hereof or shares of any class or classes
resulting from any reclassification or reclassifications thereof or as a result
of any corporate reorganization as provided for in Section 7 hereof.
(g) No Adjustment Upon Exercise of Warrants. No adjustments shall be
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made under any Section herein in connection with the issuance of Warrant Shares
upon exercise of the Warrants.
Section 7. Reclassification, Reorganization, Consolidation or Merger.
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In the event of any reclassification, capital reorganization or other
change of outstanding shares of Common Stock of the Company (other than a
subdivision or combination of the outstanding Common Stock and other than a
change in the par value of the Common Stock) or in the event of any
consolidation or merger of the Company with or into another corporation (other
than a merger in which merger the Company is the continuing corporation and that
does not result in any reclassification, capital reorganization or other change
of outstanding shares of capital stock of the class issuable upon exercise of
this Warrant) or in the event of any sale, lease, transfer or conveyance to
another corporation of the property and assets of the
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Company as an entirety or substantially as an entirety, the Company shall, as a
condition precedent to such transaction, cause effective provisions to be made
so that the Holder shall have the right thereafter, by exercising this Warrant,
to purchase the kind and amount of shares of stock and other securities and
property (including cash) receivable upon such reclassification, capital
reorganization and other change, consolidation, merger, sale or conveyance by a
holder of the number of shares of Common Stock that might have been received
upon exercise of this Warrant immediately prior to such reclassification,
capital reorganization, change, consolidation, merger, sale or conveyance, and
the successor or purchasing corporation or other entity in such
reclassification, change, reorganization, consolidation, merger or conveyance
(if not the Company) shall duly execute and deliver to Warrant Holder a
supplement hereto acknowledging such corporation's or entity's obligations under
the Warrants; and in each such case, the terms of the Warrants (including the
exercisability, transfer and adjustment provisions of the Warrants) shall be
applicable to the shares of stock or other securities or property receivable
upon the exercise of the Warrants after the consummation of such
reclassification, change, reorganization, consolidation, merger or conveyance.
Any such provision shall include provisions for adjustments in respect of such
shares of stock and other securities and property that shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Warrant. The foregoing provisions of this Section 7 shall similarly apply to
successive reclassifications, capital reorganizations and changes of shares of
Common Stock and to successive consolidations, mergers, sales or conveyances.
Section 8. Transfer to Comply with the Securities Act of 1933. This
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Warrant may not be exercised and neither this Warrant nor any of the Warrant
Shares, nor any interest in either, may be sold, assigned, pledged,
hypothecated, encumbered or in any other manner transferred or disposed of, in
whole or in part, except in compliance with applicable United States federal and
state securities or blue sky laws and the terms and conditions hereof. Each
Warrant shall bear a legend in substantially the same form as the legend set
forth on the first page of this Warrant. Each certificate for Warrant Shares
issued upon exercise of this Warrant, unless at the time of exercise such
Warrant Shares are acquired pursuant to a registration statement that has been
declared effective under the Act, shall bear a legend substantially in the
following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE
WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
Any certificate for any Warrant Shares issued at any time in exchange or
substitution for any certificate for any Warrant Shares bearing such legend
(except a new certificate for any Warrant Shares issued after the acquisition of
such Warrant Shares pursuant to a registration statement
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that has been declared effective under the Act) shall also bear such legend
unless, in the opinion of counsel for the Company, the Warrant Shares
represented thereby need no longer be subject to the restriction contained
herein. The provision of this Section 8 shall be binding upon all subsequent
holders of certificates for Warrant Shares bearing the above legend and all
subsequent holders of this Warrant, if any.
Section 9. Registration Rights.
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(a) Upon exercise of this Warrant, the Holder shall have and be entitled to
exercise, together with all other holders of registrable securities possessing
registration rights under that certain Amended and Restated Investor Rights
Agreement, currently in effect, between the Company and the parties who have
executed the counterpart signature pages thereto or are otherwise bound thereby
(the "Investor Rights Agreement"), the rights of registration granted under the
Investor Rights Agreement to registrable securities (with respect to the shares
of common stock issuable upon exercise of this Warrant). By its receipt of this
Warrant, Holder agrees to be bound by the Investor Rights Agreement.
Section 10. Modification and Waiver. This Warrant and any term hereof may
-----------------------
be changed, waived, discharged or terminated by an instrument in writing signed
by the Company and by the Holders of a majority of the Warrants (on the basis of
the number of Warrant Shares into which such Warrants are exercisable) issued
pursuant to the Agreement. Any amendment effected in accordance with this
Section 10 shall be binding upon each Holders of any of the Warrants, each
future Holders of all such Warrants, and the Company; provided, however, that no
special consideration or inducement may be given to any such Holders in
connection with such consent that is not given ratably to all such Holders, and
that such amendment must apply to all such Holders equally and ratably in
accordance with the number of shares of Common Stock issuable upon exercise of
their Warrants.
Section 11. Notices. All notices and other communications required or
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permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery, on the first business day following mailing by overnight
courier, or on the fifth day following mailing by registered or certified mail,
return receipt requested, postage prepaid, addressed to the Company and the
Holder at its address as shown on the books of the Company or to the Company at
the address indicated therefor in the first paragraph of this Warrant.
Section 12. Descriptive Headings and Governing Law. The description
--------------------------------------
headings of the several sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. This Warrant
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the laws of the State of California.
Section 13. Successors and Assigns. The terms and provisions of this
----------------------
Warrant shall inure to the benefit of, and be binding upon, the Company and the
Holders hereof and their respective successors and assigns.
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be executed
by its duly authorized officer and to be dated as of September 20, 2000.
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PLUMTREE SOFTWARE, INC.
By: /s/ JOHN KUNZE
-----------------------------------
Name: John Kunze
-----------------------------------
Title: Chief Executive Officer
-----------------------------------
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PURCHASE FORM
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TO: PLUMTREE SOFTWARE, INC.
1. The undersigned Holder of the attached original, executed Warrant for
the Purchase of Common Stock of Plumtree Software, Inc. (the "Company") hereby
elects to exercise its purchase right under such Warrant with respect to ______
Warrant Shares, as defined in the attached Warrant.
2. The undersigned Holder
(a) elects to pay the aggregate exercise price for such Warrant Shares
(the "Exercise Shares") in the following manner:
(i) by lawful money of the United States or the enclosed
certified check or postal or express money order payable in
United States dollars to the order of the Company in the
amount of $____________;
(ii) by wire transfer of United States funds to the account of
the Company in the amount of $_____________, which transfer
has been made before or simultaneously with the delivery of
this Purchase Form pursuant to the instructions of the
Company;
(iii) by the cancellation of indebtedness of the Company to the
undersigned Holder in the amount of $____________;
(iv) by the combination of the foregoing indicated above or on
the attached sheet;
or
(b) elects to receive Warrant Shares equal to the value of the
Warrants calculated in accordance with Section 1(b) of the Warrants of the
Company.
3. Please issue a stock certificate or certificates representing the
appropriate number of Warrant Shares in the name of the undersigned or in such
other names as is specified below:
<TABLE>
<S> <C>
Name:____________________________________________ Date:__________________________________________
Address:_________________________________________
_________________________________________________ Note: The signature of the Holder must conform in
Tax Identification No.:__________________________ all respects to the name of the Holder as specified
on the face of the Warrant, without alteration,
HOLDER:__________________________________________ enlargement or any change whatsoever.
By:______________________________________________
Its:_____________________________________________
</TABLE>
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ASSIGNMENT FORM
---------------
Dated _______________, ____
FOR VALUE RECEIVED, ______________________________________ hereby sells,
assigns, and transfers unto ________________________________________ (the
(Please type or print in block letters)
"Assignee"),
________________________________________________________________________________
(insert address)
its right to purchase up to ___ shares of Common Stock represented by this
Warrant and does hereby irrevocably constitute and appoint
________________________________ as its attorney-in-fact, to transfer the same
on the books of the Company, with full power of substitution in the premises.
____________________________________
(Signature)
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