Exhibit 4.7
THIS WARRANT AND THE SECURITIES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT AND STATE SECURITIES LAW OR
PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
AMENDED AND RESTATED
WARRANT TO PURCHASE PREFERRED SHARES
Corporation: Kanbay International, Inc., a Delaware corporation
Number of Shares: 25,000
Class of Stock: Series A-1 Convertible Preferred
Initial Exercise Price: $6.25 per Preferred Stock
Issue Date: April 19, 2000 1/
Expiration Date: April 18, 2007
RECITALS
A. On April 19, 2000, a Warrant to Purchase Preferred Units was
issued by Kanbay, LLC, a Delaware limited liability company, in favor of
Silicon Valley Bancshares (the "Holder"), for the purchase of 25,000 Series A
Convertible Preferred Units of Kanbay, LLC at the Initial Exercise Price of
$6.25 per Preferred Unit (the "Original Warrant"). Pursuant to paragraph 2.2
of the Original Warrant, Kanbay, LLC was entitled to convert from a limited
liability company to a Delaware corporation (the "Conversion");
B. On August 24, 2000, pursuant to the Conversion and in accordance
with terms of the Original Warrant, Kanbay International, Inc., a Delaware
corporation and successor to Kanbay, LLC, issued in favor of the Holder, as a
replacement for and in lieu of the Original Warrant, a warrant for the
purchase of 25,000 shares of Series A Convertible Preferred Stock of Kanbay
International, Inc. at the Initial Exercise Price of $6.25 per share (the
"Conversion Warrant") as a replacement for and in lieu of the Original
Warrant;
C. In connection with transactions contemplated by that certain
Subscription Agreement by and between Kanbay International, Inc. and MSIT
Holdings, Inc., Kanbay International, Inc. amended its Certificate of
Incorporation (the "Amended and Restated Certificate of Incorporation")
effective on August 31, 2000, to provide for, among other things, the
reclassification of shares of its Series A Convertible Preferred Stock (the
"Original Series A Preferred Stock") to shares of Series A-1 Convertible
Preferred Stock (the "New Series A-1 Preferred Stock") (the
"Reclassification"); and
D. In accordance with the terms of the Conversion Warrant, Kanbay
International, Inc. is issuing as a replacement for and in lieu of the
replacement Warrant this Amended and Restated Warrant in favor of the Holder
for the purchase of 25,000 shares of its New Series A-1 Preferred Stock (the
"Replacement Warrant"), such Replacement Warrant relating back to the
Original issue date of April 19, 2000.
NOW, THEREFORE, in consideration of Silicon Valley Bank continuing
its loan to Kanbay International, Inc., the parties hereby agree as follows:
1/ In accordance with Section 4.4 hereof and pursuant to that certain
Assignment, dated so as to be effective April 19, 2000 and received by the
Company on April 27, 2004, this Warrant has been assigned by Silicon Valley
Bank to Silicon Valley Bancshares.
THIS WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and
for other good and valuable consideration, SILICON VALLEY BANCSHARES is
entitled to purchase the number of fully paid and nonassessable shares of
Series A-1 Convertible Preferred Stock (the "Preferred Shares") of Kanbay
International, Inc., a Delaware corporation (the "Company"), at the initial
exercise price per Preferred 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 by
delivering 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
Preferred Shares being purchased. Upon exercise of this Warrant, Holder shall
agree to become a party to the Company's Second Amended and Restated
Stockholders' Agreement (the "Stockholders' Agreement"), and shall execute
such other documents that Company may reasonably require for Holder to become
a stockholder of the Company.
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 Preferred Shares determined by dividing
(a) the aggregate fair market value of the Preferred Shares or other
securities otherwise issuable upon exercise of this Warrant minus the
aggregate Warrant Price of such Preferred Shares by (b) the fair market value
of one Preferred Share. The fair market value of the Preferred Shares shall
be determined pursuant to Section 1.3.
1.3 FAIR MARKET VALUE. If the Preferred Shares are traded in a
public market, the fair market value of the Preferred Shares shall be the
closing price of the Preferred Shares (or the closing price of the Company's
common shares into which the Preferred Shares are convertible) reported for
the business day immediately before Holder delivers its Notice of Exercise to
the Company. If the Preferred Shares are not traded in a public market, the
Board of Directors of the Company shall determine fair market value in their
reasonable good faith judgment. The foregoing notwithstanding, if Holder
advises the Members in writing that Holder disagrees with such determination,
then the Company and Holder shall promptly agree upon a reputable investment
banking firm to undertake such valuation. If the valuation of such investment
banking firm is more than five percent (5%) greater than that determined by
the Board of Directors, then all fees and expenses of such investment banking
firm shall be paid by the Company. In all other circumstances, such fees and
expenses shall be paid by Holder.
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 Preferred Shares acquired and, if this Warrant has not
been fully exercised or converted and has not expired, a new Warrant
representing the Preferred Shares not so acquired.
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 ASSUMPTION UPON SALE, MERGER, OR CONSOLIDATION OF THE COMPANY.
1.6.1. "ACQUISITION". For the purpose of this Warrant,
"Acquisition" means any sale, license, or other disposition of all or
substantially all of the assets 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.
2
<Page>
1.6.2. ASSUMPTION OF WARRANT. Upon the closing of any
Acquisition the successor entity shall assume the obligations of this
Warrant, and this Warrant shall be exercisable for the same securities, cash,
and property as would be payable for the Preferred Shares issuable upon
exercise of the unexercised portion of this Warrant as if such Preferred
Shares were outstanding on the record date for the Acquisition and subsequent
closing. The Warrant Price shall be adjusted accordingly.
1.7 RIGHTS OF HOLDER. Until such time as Holder exercises this
Warrant and becomes a stockholder of the Company as provided herein, Holder
shall not solely by reason of holding this Warrant be entitled to vote on any
matters for which a stockholder is entitled to vote or be entitled to any
other rights of a stockholder (except for rights specifically set forth in
this Warrant).
ARTICLE 2
ADJUSTMENTS TO THE PREFERRED SHARES
2.1 DISTRIBUTION OF SHARES, SPLITS, ETC. If the Company declares or
makes a distribution on its common shares (or the Preferred Shares) payable
in common shares, or other securities, subdivides the outstanding common
shares into a greater amount of common shares, or subdivides the Preferred
Shares in a transaction that increases the amount of common shares into which
the Preferred Shares are convertible, then upon exercise of this Warrant, for
each Preferred 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 Preferred Shares of record as of the date the
distribution or subdivision occurred.
2.2 RECLASSIFICATION, EXCHANGE OR SUBSTITUTION. Upon any
reclassification, exchange, substitution, or other event that results in a
change of the type, 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 Preferred
Shares if this Warrant had been exercised immediately before such
reclassification, exchange, substitution, or other event. Such an event shall
include any automatic conversion of the outstanding or issuable securities of
the Company of the same class or series as the Preferred Shares to common
shares pursuant to the terms of the Company's Amended and Restated
Certificate of Incorporation, as the same may be amended from time to time,
and Stockholder's Agreement upon the closing of a registered public offering
of the Company's common shares. 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.
2.4 ADJUSTMENTS FOR DILUTING ISSUANCES. The Warrant Price and the
number of Preferred Shares issuable upon exercise of this Warrant or the
number of common shares issuable upon conversion of the Preferred Shares,
shall be subject to adjustment, from time to time in the manner set forth in
the Company's Amended and Restated Certificate of Incorporation, as the same
may be amended from time to time. The provisions set forth for the Preferred
Shares in the Company's Amended and Restated Certificate of Incorporation, as
the same may be amended from time to time, relating to the above in effect as
of the Issue Date may not be amended, modified or waived without the prior
written consent of Holder unless such amendment, modification or waiver
affects Holder in the same manner as they affect all other shareholders of
the Preferred Shares.
3
2.5 NO IMPAIRMENT. The Company shall not, by amendment of its
Certificate of Incorporation or through a reorganization, transfer of assets,
consolidation, merger, dissolution, issue, or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed under this Warrant by the Company,
but shall at all times in good faith assist in carrying out of all the
provisions of this Article 2 and in taking all such action as may be
necessary or appropriate to protect Holder's rights under this Article
against impairment. If the Company takes any action affecting the Preferred
Shares or its common shares other than as described above that adversely
affects Holder's rights under this Warrant, the Warrant Price shall be
adjusted downward and the number of Preferred Shares issuable upon exercise
of this Warrant shall be adjusted upward in such a manner that the aggregate
Warrant Price of this Warrant is unchanged.
2.6 FRACTIONAL SHARES. No fractional shares shall be issuable upon
exercise or Conversion of the Warrant and the number of shares to be issued
shall be rounded down to the nearest whole Share. If a fractional share
interest arises upon any exercise or Conversion of the Warrant, the Company
shall eliminate such fractional share interest by paying Holder an amount
computed by multiplying the fractional interest by the fair market value of a
full share.
2.7 CERTIFICATE AS TO ADJUSTMENTS. Upon each adjustment of the
Warrant Price, the Company at its expense shall promptly compute such
adjustment, and furnish Holder with a certificate of its Chief Financial
Officer setting forth such adjustment and the facts upon which such
adjustment is based. The Company shall, upon written request, furnish Holder
a certificate setting forth the Warrant Price in effect upon the date thereof
and the series of adjustments leading to such Warrant Price.
ARTICLE 3
REPRESENTATIONS AND COVENANTS OF THE COMPANY
3.1 REPRESENTATIONS AND WARRANTIES. The Company hereby represents
and warrants to the Holder as follows:
(a) The initial Warrant Price referenced on the first page
of this Warrant is not greater than (i) the price per share at which the
Preferred Shares were last issued in an arms-length transaction in which at
least $500,000 of the Preferred Shares were sold and (ii) the fair market
value of the Preferred Shares as of the date of this Warrant.
(b) All Preferred Shares which may be issued upon the
exercise of the purchase right represented by this Warrant, and all
securities, if any, issuable upon conversion of the Preferred Shares, shall,
upon issuance, be duly authorized, validly issued, fully paid and
nonassessable, and free of any liens and encumbrances except for restrictions
on transfer provided for herein or under applicable federal and state
securities laws.
(c) The Capitalization Table attached to this Warrant is
true and complete as of September 14, 2000.
3.2 NOTICE OF CERTAIN EVENTS. If the Company proposes at any time
(a) to declare any distribution upon its common shares, whether in cash,
property, stock, or other securities and whether or not a regular cash
dividend; (b) to offer for subscription pro rata to the holders of any class
or series of its shares any additional shares of any class or series or other
rights; (c) to effect any reclassification or recapitalization of common
shares (d) to merge or consolidate with or into any other entity, or sell,
lease, license, or convey all or substantially all of its assets, or to
liquidate, dissolve or wind up; or (e) offer holders of registration rights
the opportunity to participate in an underwritten public offering of the
company's securities for cash, then, in connection with each such event, the
Company shall give Holder (1) at least 20 days prior written notice of the
date on which a record will be taken for such distribution, or subscription
rights (and specifying the date on which the holders of common shares will be
entitled thereto) or for determining rights to vote, if any, in respect of
the matters referred to in (c) and (d) above; (2) in the case of the matters
referred to in (c) and (d) above at least 20 days' prior written notice of
the date when the same will take place (and specifying the date on which the
holders of shares will be entitled to exchange their shares for securities or
other property deliverable upon
4
the occurrence of such event); and (3) in the case of the matter referred to
in (e) above, the same notice as is given to the holders of such registration
rights.
3.3 INFORMATION RIGHTS. So long as the Holder holds this Warrant
and/or any of the Preferred Shares, the Company shall deliver to the Holder
(a) promptly after mailing, copies of all notices or other written
communications to the stockholders of the Company, (b) within ninety (90)
days after the end of each fiscal year of the Company, the annual audited
financial statements of the Company certified by independent public
accountants of recognized standing, and (c) such other financial statements
required under and in accordance with any loan documents between Holder and
the Company (or if there are no such requirements or if the subject loan(s)
no longer are outstanding), then within forty-five (45) days after the end of
each of the first three quarters of each fiscal year, the Company's
quarterly, unaudited financial statements.
3.4 REGISTRATION UNDER SECURITIES ACT OF 1933, AS AMENDED. The
Company agrees that the Preferred Shares, or if the Preferred Shares are
convertible into common shares of the Company, such common shares shall be
subject to the registration rights set forth on Exhibit A (which Exhibit A is
hereby incorporated herein and made a part of this Warrant).
ARTICLE 4
MISCELLANEOUS
4.1 TERM. This Warrant is exercisable, in whole or in part, at any
time and from time to time on or before the Expiration Date set forth above.
4.2 LEGENDS. This Warrant and the Preferred Shares (and the
securities issuable, directly or indirectly, upon conversion of the Preferred
Shares, if any) shall be imprinted with a legend in substantially the
following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION
IS NOT REQUIRED.
4.3 COMPLIANCE WITH SECURITIES LAWS ON TRANSFER. This Warrant and
the Preferred Shares issuable upon exercise of this Warrant (and the
securities issuable, directly or indirectly, upon conversion of the Preferred
Shares, if any) may not be transferred or assigned in whole or in part
without compliance with applicable federal and state securities laws by the
transferor and the transferee (including, without limitation, the delivery of
investment representation letters and legal opinions reasonably satisfactory
to the Company, as reasonably requested by the Company). The Company shall
not require Holder to provide an opinion of counsel if the transfer is to an
affiliate of Holder or if there is no material question as to the
availability of current information as referenced in Rule 144(c), Holder
represents that it has complied with Rule 144(d) and (e) in reasonable
detail, the selling broker represents that it has complied with Rule 144(f),
and the Company is provided with a copy of Holders notice of proposed sale.
4.4 TRANSFER PROCEDURE. Subject to the provisions of Section 4.3,
Holder may transfer all or part of this Warrant or the Preferred Shares
issuable upon exercise of this Warrant (or the securities issuable, directly
or indirectly, upon conversion of the Preferred Shares, if any) at any time
to Silicon Valley Bancshares or The Silicon Valley Bank Foundation, or to any
affiliate of Holder, or, to any other transferee, by giving the Company
notice of the portion of the Warrant being transferred, setting forth the
name, address and taxpayer identification number of the transferee, and
surrendering this Warrant to the Company for reissuance to the transferee(s)
(and Holder if applicable). Unless the Company is filing financial
information with the SEC pursuant to the Securities Exchange Act of 1934, the
Company shall have the right to refuse to transfer any portion of this
Warrant to any person who directly competes with the Company.
4.5 NOTICES. All notices and other communications from the Company
to the Holder, or vice versa, shall be deemed delivered and effective when
given personally or mailed by first-class registered or certified mail at
such address as may have been furnished to the Company or the Holder, as the
case may
5
<Page>
be, in writing by the Company or such holder from time to time. All notices
to be provided under this Warrant shall be sent to the following address:
Silicon Valley Bank
9701 West Higgins Road, Suite 150
Rosemont, IL 60018
Attention: David Dailey, Vice President
Fax: (847)698-0635
with a copy to:
Silicon Valley Bancshares
Attn: Treasury Department
3003 Tasman Drive (HA-200)
Santa Clara, CA 95054
Fax: (408)496-2405
4.6 WAIVER. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
4.7 ATTORNEYS FEES. In the event of any dispute between the parties
concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs
incurred in such dispute, including reasonable attorneys' fees.
4.8 GOVERNING LAW. This Warrant shall be governed by and construed
in accordance with the laws of the State of Illinois, without giving effect
to its principles regarding conflicts of law.
KANBAY INTERNATIONAL, INC.("Company")
By: Authorized Party
---------------------------------------
Name: Authorized Party
-------------------------------------
(Print)
Title:______________________________________
Chief Financial Officer or Secretary
6
APPENDIX 1
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase shares of the Series A-1
Convertible Preferred Stock (the "Preferred Shares") of Kanbay International,
Inc., a Delaware corporation, pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price of such shares in full.
1. The undersigned hereby elects to convert the attached Warrant into
Preferred Shares in the manner specified in the Warrant. This conversion is
exercised with respect to _____________________ of the Preferred Shares covered
by the Warrant.
[Strike paragraph that does not apply.]
2. Please issue a certificate or certificates representing said
Preferred Shares in the name of the undersigned or in such other name as is
specified below:
-------------------------------------------
(Name)
-------------------------------------------
-------------------------------------------
(Address)
3. The undersigned represents it is acquiring the Preferred Shares
solely for its own account and not as a nominee for any other party and not with
a view toward the resale or distribution thereof except in compliance with
applicable securities laws.
SILICON VALLEY BANCSHARES
By:____________________________
(Signature)
Name:__________________________
Title:_________________________
- --------------------
(Date)
1
EXHIBIT A
TO
WARRANT TO PURCHASE PREFERRED SHARES
REGISTRATION RIGHTS
The shares of common stock issuable upon conversion of the Preferred
Shares shall be deemed "registrable securities" or otherwise entitled to "piggy
back" registration rights in accordance with the terms of that certain Amended
and Restated Registration Rights Agreement by and among the Company, MSIT
Holdings, Inc., a Delaware corporation, Safeguard 98 Capital, L.P., a Delaware
limited partnership, Household Investment Funding, Inc., and certain other
holders of the Company's stock, dated as of September 14, 2000 (the
"Registration Rights Agreement") as if Holder was a party thereto and all such
provisions thereof with respect to such registrable securities and registration
rights were for Holder's benefit (which Registration Rights Agreement is hereby
incorporated herein and made a part of this Warrant).
The Company agrees that no amendments will be made to the Registration
Rights Agreement which would have an adverse impact on Holder's registration
rights thereunder without the consent of Holder.
CAPITALIZATION TABLE