EXHIBIT 10.27
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THE RIGHTS TO PURCHASE COMMON STOCK OF BRIDGELINE SOFTWARE, INC. REPRESENTED BY
THIS WARRANT AND ANY COMMON STOCK ISSUED UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO SUCH
TRANSFER OR DISPOSITION OF SUCH RIGHTS OR STOCK UNDER THE ACT AND APPLICABLE
STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION
TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
COMMON STOCK PURCHASE WARRANT
THIS IS TO CERTIFY that, for value received, Sand Hill Finance, LLC,
residing at 3000 Sand Hill Road, Menlo Park, CA 94025 or any subsequent
registered holder hereof (the "Holder"), is entitled to purchase from BRIDGELINE
SOFTWARE, INC., a Delaware corporation (the "Company"), at any time after the
date hereof (subject to the restrictions contained herein) and until 5:00 p.m.,
Eastern time, on the Expiration Date (as defined), up to an aggregate of 9,600
fully paid and nonassessable shares of Common Stock (as defined) of the Company
at a purchase price per share equal to the Exercise Price (as defined).
1. Certain Definitions. As used herein the following terms, unless the
context otherwise requires, have the following respective meanings:
1.1 "Company" shall mean Bridgeline Software, Inc., and any corporation
that shall succeed to or assume the obligations of Bridgeline Software, Inc.
hereunder.
1.2 "Common Stock" shall mean and include (i) the Company's Common
Stock, par value $.001 per share, as authorized on the date hereof, (ii) any
other capital stock of any class or series (however designated) of the Company,
other than preferred stock authorized on or after the date hereof, the holders
of which shall have the right, without limitation as to amount, either to all or
to a share of the balance of current dividends and liquidating dividends after
the payment of dividends and distributions on any shares entitled to preference,
and the holders of which shall ordinarily, in the absence of contingencies, be
entitled to vote for the election of a majority of the directors of the Company
(even though the right so to vote has been suspended by the happening of such a
contingency), and (iii) any other securities into which or for which any of the
securities described in (i) or (ii) may be converted or exchanged pursuant to a
plan of recapitalization, reorganization, merger, sale of assets or otherwise.
1.3 "Exercise Price" shall mean $1.56 per share, as adjusted herein
upon the happening of certain events.
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1.4 "Expiration Date" shall mean the fifth year anniversary of the date
of original issuance of this Warrant (and not the issuance date of a substitute
or replacement Warrant), or, if earlier, the consummation of a Liquidity Event.
The date of the issuance of this Warrant is March 28, 2005.
1.5 "Liquidity Event" shall mean the effective time of (i) the
dissolution or liquidation of the Company; (ii) the sale by the Company or
existing stockholders of any stock of the Company of any class by means of a
public offering pursuant to the registration provisions of the Act (a "Public
Offering"); or (iii) the Acquisition of the Company in a transaction that is not
a Private Transaction. For this purpose, "Acquisition" shall mean (i) the sale
of the Company by merger in which the shareholders of the Company in their
capacity as such no longer own a majority of the outstanding equity securities
of the Company (or its successor); or (ii) any sale of all or substantially all
of the assets or capital stock of the Company or (iii) any other acquisition of
the business of the Company, as determined by the Board of Directors of the
Company; and "Private Transaction" shall mean any Acquisition where the
consideration received or retained by the holders of the then outstanding
capital stock of the Company does not consist of (i) cash or cash equivalent
consideration, (ii) securities which are registered under the Act and/or (iii)
securities for which the Company or any other issuer thereof has agreed,
including pursuant to a demand, to file a registration statement within ninety
(90) days of completion of the transaction for resale to the public pursuant to
the Act.
2. Transfer and Replacement.
2.1 Registered Holders. The Company shall maintain a register
containing the names and addresses of the registered holders of the Warrants.
The "registered holder" of any Warrant shall be the person in whose name such
Warrant is registered in said warrant register. Any registered holder of this
Warrant may change its address as shown on the warrant register by written
notice to the Company requesting such change. Any notice or written
communication required or permitted to be given to the registered holder of this
Warrant shall be mailed, by certified or registered mail, return receipt
requested, postage prepaid, or delivered to such registered holder at its
address as shown on the warrant register.
2.2 Securities Act. The registered holder of this Warrant (by
acceptance hereof) represents that said holder is acquiring this Warrant for the
holder's own account for investment purposes and has no present intention of
offering, distributing or otherwise disposing of this Warrant.
2.3 Transfer. This Warrant, and the rights evidenced hereby, have not
been registered under the Act or under any applicable state securities laws and
may not be transferred unless subsequently registered under the Act and any
applicable state securities laws or unless an exemption from such registration
requirements is then available. Subject to the forgoing, this Warrant, and any
portion hereof, may be transferred by the Holder by execution and delivery of an
assignment to the Company.
2.4 Substitution. In case this Warrant shall be mutilated, lost,
stolen, or destroyed, the Company shall issue a new Warrant of like tenor and
denomination and deliver the same (a) in exchange and substitution for and upon
surrender and cancellation of any mutilated Warrant, or (b) in lieu of any
Warrant lost, stolen or destroyed, upon receipt of evidence satisfactory to the
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Company of the loss, theft or destruction of such Warrant (including a
reasonably detailed affidavit with respect to the circumstances of any loss,
theft or destruction), and of indemnity satisfactory to the Company.
3. Exercise.
Subject to the conditions and limitations herein set forth, from and
after the date hereof, this Warrant may be exercised in whole or in part at any
time or from time to time after the date hereof and until 5:00 p.m., Eastern
time, on the Expiration Date by the registered holder hereof by the surrender of
this Warrant (with the subscription form annexed hereto duly completed and
executed) to the Company at its principal office, together with payment to the
Company of the Exercise Price for the shares of Warrant Stock to be purchased
hereunder. If this Warrant shall be exercised in part, the registered holder
shall be entitled to receive a new Warrant covering the number of shares in
respect of which this Warrant shall not have been exercised. All Warrants
surrendered for exercise shall be canceled. The person or persons in whose name
or names any certificate or certificates representing shares of Warrant Stock
shall be issuable upon exercise of this Warrant shall be deemed to have become
the holder or holders of record of the shares represented thereby at the close
of business on the date upon which this Warrant is exercised, whether or not the
stock transfer books of the Company shall then be closed.
In lieu of or in addition to the foregoing, and only if the Common
Stock is then publicly traded on the Nasdaq National Market (or equivalent) or a
national securities exchange, the registered holder of this Warrant may elect to
receive without the payment by such holder of any additional consideration,
shares equal to the value of this Warrant or any portion hereof by the surrender
of this Warrant or such portion to the Company (with the subscription form
annexed hereto duly completed and executed), at the principal office of the
Company. Thereupon, the Company shall issue to the registered holder such number
of fully paid and nonassessable shares of Common Stock as is computed using the
following formula:
Y (A-B)
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A
where Y = the number of shares covered by this Warrant in respect of which
the net issue election is made pursuant to this paragraph.
A = the fair market value of one share of Common Stock at
the time the net issue election is made pursuant to this
paragraph.
B = the Warrant Price per share in effect under this
Warrant at the time the net issue election is made pursuant
to this paragraph.
For purposes hereof, the fair market value of one share of Common Stock shall be
the closing sale price on the principal public market on which it is traded on
the preceding trading day.
4. Anti-dilution Adjustments. The number of shares of Common Stock
purchasable upon exercise of the Warrants shall be subject to adjustment from
time to time upon the happening of the events hereinafter specified.
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If the Company (i) declares a dividend on the Common Stock in shares of
its capital stock or makes a distribution in shares of Common Stock; (ii)
subdivides its outstanding Common Stock into a smaller number of shares of
Common Stock; (iii) combines its outstanding Common Stock into a smaller number
of shares of Common Stock; (iv) issues any shares of its capital stock in a
reclassification of its Common Stock (including any such reclassification in
connection with a consolidation or merger), the number of shares of Common Stock
for which the Warrant is exercisable at the time of the record date for such
dividend or of the effective date of such subdivision, combination, or
reclassification shall be proportionately adjusted so that the Holder of any
Warrant exercised after such date shall be entitled to receive the aggregate
number and kind of shares which, if such Warrant had been exercised immediately
prior to such time, it would have owned upon such exercise and been entitled to
receive upon such dividend, subdivision, combination or reclassification. Such
adjustment shall be made successively whenever any event listed above shall
occur, but no duplicative adjustment shall be made hereunder.
In case the Company shall at any time subdivide its outstanding shares
of Warrant Stock into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision shall be proportionately reduced (but not
below the par value of the Common Stock), and conversely, in case the
outstanding shares of Warrant Stock shall be combined into a smaller number of
shares, the Exercise Price in effect immediately prior to such combination shall
be proportionately increased.
Whenever an adjustment is made pursuant to this Section 4, the Company
shall promptly cause a notice setting forth the adjusted Exercise Price and
adjusted number of Warrant Stock issuable upon exercise of each Warrant to be
mailed to each Holder at such Holder's last known address.
5. Reorganization, Reclassification, Consolidation, Merger or Sale.
If any capital reorganization or reclassification of the capital stock
of the Company, or any consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation, shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then each registered holder shall thereafter have the
right to receive upon the basis and upon the terms and conditions specified
herein and in lieu of the shares of Common Stock immediately theretofore
receivable upon the exercise of this Warrant, such shares of stock, securities
or assets as may be issued or payable with respect to or in exchange for a
number of outstanding shares of Common Stock equal to the number of shares of
such stock immediately theretofore so receivable had such reorganization,
reclassification, consolidation, merger or sale not taken place, and in any such
case appropriate provision shall be made with respect to the rights and
interests of such holder to the end that the provisions hereof shall thereafter
be applicable, as nearly as may be, in relation to any shares of stock,
securities or assets thereafter deliverable upon the exercise of such conversion
rights.
6. Liquidity Events. The Company covenants and agrees to give (a)
notice of any Liquidity Event to the registered holder of the Warrant at least
fifteen (15) business days in advance of the record date for determining
stockholders' rights with respect to such Liquidity Event, and (b) that any
agreements, resolutions, offers or other documents with respect to any
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Liquidity Event shall contain terms consistent with the provisions of this
Section 6. In the event of a Liquidity Event, the registered holder of this
Warrant shall have the right, in lieu of exercising the Warrant in advance of
such Liquidity Event and receiving the consideration which the holder of the
Common Stock issuable upon exercise of the Warrant would receive in connection
with such Liquidity Event (the "Event Consideration"), upon surrender and
cancellation of the Warrant to receive the Event Consideration with respect to
the Common Stock for which the Warrant is exercisable reduced by the aggregate
Exercise Price of the Warrant. The Event Consideration in the case of a Public
Offering shall be the Common Stock valued at the "price to public" in such
Public Offering. If the Warrant is not exercised prior to such a Liquidity
Event, the registered holder shall be deemed to have elected to have surrendered
the Warrant for cancellation, and shall be entitled to receive the Event
Consideration with respect to the Common Stock for which the Warrant is
exercisable reduced by the aggregate Exercise Price of this Warrant, and this
Warrant shall be terminated and of no further force and effect after the
Liquidity Event other than as evidence of the consideration the registered
holder is entitled to under this Section 6.
7. Discretionary Adjustments.
If any event occurs as to which in the opinion of the Board of
Directors of the Company the provisions of Sections 4 and 5 are not strictly
applicable or if strictly applicable would not fairly protect the exercise
rights of the holders of the Warrants in accordance with the essential intent
and principles of such provisions, then the Board of Directors shall make an
adjustment in the application of such provisions, in accordance with such
essential intent and principles, so as to protect such exercise rights as
aforesaid, but in no event shall any such adjustment have the effect of
increasing the Exercise Price as otherwise determined under Section 4 and 5,
except in the event of a combination of shares of the type contemplated in
Section 4.
8. Stock to be Reserved.
The Company shall at all times reserve and keep available out of its
authorized but unissued Common Stock, solely for the purpose of issue upon the
exercise of the Warrant as herein provided, such number of shares of Common
Stock as shall then be issuable upon the exercise of all outstanding Warrants.
The Company covenants that all shares of Common Stock which shall be so issuable
shall be duly and validly issued and fully paid and nonassessable and free from
all taxes, liens and charges with respect to the issue thereof.
9. Rights as Stockholder.
The registered holder of this Warrant, as such, shall not be entitled
to vote or receive dividends or be deemed the holder of shares of Common Stock
for any purpose, nor shall anything contained in this Warrant be construed to
confer upon the registered holder of this Warrant, as such, any of the rights of
a stockholder of the Company or any right to vote, give or withhold consent to
any action by the Company (whether upon any recapitalization, issue of shares,
reclassification of shares, consolidation, merger, conveyance or otherwise),
receive notice of meetings or other action affecting stockholders (except for
notices provided for in this Warrant), receive dividends or subscription rights,
or otherwise until this Warrant shall have been exercised and the shares of
Common Stock purchasable upon the exercise hereof shall have become deliverable
as provided in Section 3, at which time the person or persons in whose name
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or names the certificate or certificates for the shares of Common Stock being
purchased are to be issued shall be deemed the holder or holders of record of
shares of Common Stock for all purposes.
10. Issue Tax.
The issuance of certificates for shares of Common Stock upon the
exercise of the Warrants shall be made without charge to the holders of such
Warrants for any issuance tax in respect thereto, provided that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any certificate in a name
other than that of the registered holder of the Warrant exercised.
11. Fractional Shares.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant. If, upon exercise of this Warrant as
an entirety, the registered holder would, except for the provisions of this
Section 11, be entitled to receive a fractional share of Common Stock, then an
amount equal to such fractional share multiplied by the fair value (as
determined from time to time by the Board of Directors of the Company) of shares
of the Company's Common Stock, as applicable, shall be paid by the Company in
cash to such registered holder.
12. Lock-up Agreement. The registered holder of this Warrant (by
acceptance hereof) agrees that in the event that the Company effects an initial
Public Offering, the Warrant Shares issued or issuable upon exercise of this
Warrant may not be sold, offered for sale or otherwise disposed of, directly or
indirectly, without the prior written consent of the managing underwriter(s) of
the offering, for such period of time after the execution of an underwriting
agreement in connection with such offering that all of the Company's then
directors and executive officers agree to be similarly bound.
13. Miscellaneous.
The validity, interpretation, and performance of this Warrant shall be
governed by the laws of the State of Delaware. This Warrant and the rights
evidenced hereby shall inure to the benefit of and be binding upon the
successors and assigns of the Company and the Holder hereof, to the extent
provided herein, and shall be enforceable by any such Holder. This Warrant
replaces all prior agreements, supersedes all prior negotiations and constitutes
the entire agreement of the parties with respect to the transactions
contemplated herein.
IN WITNESS WHEREOF, Bridgeline Software, Inc. has caused this Warrant
to be executed by its officer thereunto duly authorized.
BRIDGELINE SOFTWARE, INC.
By: /S/ GARY M. CEBULA
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Title: CFO
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Dated: March 28, 2005
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FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: BRIDGELINE SOFTWARE, INC.
1. The undersigned registered holder of the attached original, executed
Warrant hereby elects to exercise its purchase right under such Warrant with
respect to shares of Common Stock, as defined in the Warrant, of BRIDGELINE
SOFTWARE, INC., a Delaware corporation (the "Company").
2. The undersigned Holder (check one):
(a) elects to pay the aggregate purchase price for such shares
of Common Stock (the "Exercise Shares") (i) by the enclosed
certified or official bank check payable in United States
dollars to the order of the Company in the amount of
$_________, or (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 Form of Subscription pursuant to the
instructions of the Company;
(b) elects to receive shares of Common Stock, in lieu of the
exercise of this Warrant pursuant to paragraph (a) for
___________ shares of Common Stock, pursuant to the net issue
feature in Section 3 of the Warrant.
3. Please issue a stock certificate or certificates representing the
appropriate number of shares of Common Stock in the name of the undersigned or
in such other names as is specified below:
Name: ________________________________________
Tax ID: ________________________________________
Address: ________________________________________
________________________________________
Dated: ________________________________________
(Signature below must conform to name of registered
holder as specified on the face of the Warrant)
Sign here: ________________________________________
Address: ________________________________________