Exhibit 10.32
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD OR
TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS
OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS
THEREFROM. THE SECURITIES REPRESENTED BY THIS WARRANT ARE SUBJECT TO, SECOND
RESTATED STOCKHOLDERS' AGREEMENT DATED AS OF FEBRUARY 26, 1999 (THE
"STOCKHOLDERS' AGREEMENT"). COPIES OF THE STOCKHOLDERS' AGREEMENT ARE ON FILE AT
THE OFFICE OF THE SECRETARY OF THE COMPANY.
No. PW-1-A Right to Purchase up to 1,911,303 Shares of
Common Stock of Lionbridge
Technologies Holdings, Inc.
Lionbridge Technologies Holdings, Inc.
COMMON STOCK PURCHASE WARRANT
February 27, 1999
Lionbridge Technologies Holdings, Inc., a Delaware corporation (the
"Company"), hereby certifies that, for value received, Capital Resource Lenders
III, L.P., a Delaware limited partnership ("CRL"), or assigns, is entitled,
subject to the terms set forth below, to purchase from the Company at any time
or from time to time before 5:00 p.m., Boston time, on February 26, 2006, or
such later time as may be specified in Section 17 hereof, up to One Million,
Nine Hundred Eleven Thousand, Three Hundred Three (1,911,303) fully paid and
nonassessable shares of Common Stock, par value $.01 per share, of the Company,
at a purchase price per share of $.01 (such purchase price per share as adjusted
from time to time as herein provided is referred to herein as the "Purchase
Price"). The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
This Common Stock Purchase Warrant (this "Warrant") is one of the
Warrants evidencing the right or purchase shares of Common Stock of the Company
issued pursuant to a certain First Amended and Restated Senior Subordinated Note
Purchase Agreement (the "Agreement"), dated as of February 26, 1999, by and
between the Company and CRL, and subject to the Stockholders' Agreement, copies
of which agreements are on file at the principal office of the Company, and the
holder of this Warrant shall be entitled to all of the benefits and bound by all
of the applicable obligations of the Agreement and the Stockholders' Agreement,
as provided therein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" shall include Lionbridge Technologies Holdings,
Inc. and any corporation which shall succeed to, or assume the obligations of,
the Company hereunder.
(b) The term "Common Stock" includes (i) the Company's Common Stock,
par value $.01 per share, as authorized on the date of the Agreement, (ii) any
other capital stock of any class or classes (however designated) of the Company,
authorized on or after such date, the holders of which shall have the right,
without limitation as to amount per share, either to all or to a share of the
balance of current dividends and liquidating distributions after the payment of
dividends and distributions on any shares entitled to preference in the payment
thereof, and the holders of which shall ordinarily, in the absence of
contingencies, be entitled to vote for the election of a majority of directors
of the Company (even though the right so to vote may have 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 clause (i) or (ii) above may be
converted or exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
(c) The term "Conversion Price" means the amount that the Purchase
Price would be, immediately prior to the determination of the Conversion Price
and giving effect to all adjustments that would have been required under Section
5, if the initial Purchase Price had been $.80 per share of Common Stock.
(d) The term "Notes" refers to any and all Notes and LTHBV Notes (as
such terms are defined in the Agreement).
(e) The term "Other Securities" refers to any stock (other than Common
Stock) and other securities of the Company or any other person (corporate or
otherwise) which the holders of the Warrants at any time shall be entitled to
receive, or shall have received, on the exercise of the Warrants, in lieu of or
in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 5 or otherwise.
(f) The term "Warrant" or "Warrants" refers to any and all of the
Warrants (as that term is defined in the Agreement).
1. EXERCISE OF WARRANT.
1.1 FULL EXERCISE. This Warrant may be exercised at any time before its
expiration in full by the holder hereof by surrender of this Warrant, with the
form of subscription at the end hereof duly executed by such holder, to the
Company at its principal office, accompanied by payment, in cash or by certified
or official bank check payable to the order of the Company, in the amount
obtained by multiplying the number of shares of Common Stock for which this
Warrant is then exercisable by the Purchase Price then in effect.
1.2 PARTIAL EXERCISE. This Warrant may be exercised in part at any time
before its expiration by surrender of this Warrant and payment of the Purchase
Price then in effect in the manner and at the place provided in Section 1.1,
except that the amount payable by the holder on such partial exercise shall be
the amount obtained by multiplying (a) the number of whole shares of Common
Stock designated by the holder in the subscription at the end hereof by (b) the
Purchase Price then in effect. On any such partial exercise the Company at its
expense will forthwith issue and deliver to or upon the order of the holder
hereof a new Warrant or Warrants
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of like tenor, in the name of the holder hereof or as such holder (upon payment
by such holder of any applicable transfer taxes) may request, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
for which such Warrant or Warrants may still be exercised.
1.3 PAYMENT BY SURRENDER OF NOTES. Notwithstanding the payment
provisions of subsections 1.1 and 1.2, all or part of the payment due upon
exercise of this Warrant in full or in part may be made by the surrender by such
holder to the Company of any of the Notes and such Notes so surrendered shall be
credited against such payment in an amount equal to the principal amount thereof
plus premium (if any) and accrued interest to the date of surrender.
1.4 COMPANY ACKNOWLEDGMENT. The Company will, at the time of the
exercise of this Warrant, upon the request of the holder hereof acknowledge in
writing its continuing obligation to afford to such holder any rights to which
such holder shall continue to be entitled after such exercise in accordance with
the provisions of this Warrant. If the holder shall fail to make any such
request, such failure shall not affect the continuing obligation of the Company
to afford to such holder any such rights.
1.5 NET ISSUE ELECTION. The holder may elect to receive, without the
payment by the 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 net issue election notice annexed hereto duly
executed, at the office of the Company. Thereupon, the Company shall issue to
the holder such number of fully paid and nonassessable shares of Common Stock as
is computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of shares to be issued to the holder pursuant to
this Section 1.5.
Y = the number of shares covered by this Warrant in respect of
which the net issue election is made pursuant to this Section
1.5.
A = the fair market value of one share of Common Stock, as
determined in accordance with the provisions of this Section
1.5.
B = the Purchase Price in effect under this Warrant at the time
the net issue election is made pursuant to this Section 1.5.
For purposes of this Section 1.5, the "fair market value" per share of the
Company's Common Stock shall mean:
(a) If the net issue election is exercised in connection with and
contingent upon the Company's initial public offering, and if the Company's
registration statement relating to such offering has been declared effective by
the Securities and Exchange Commission, then the initial "Price to Public"
specified in the final prospectus with respect to such offering; or
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(b) If the net issue election is not exercised in connection with and
contingent upon the Company's initial public offering, then as follows:
(1) If the Common Stock is traded on a national
securities exchange or admitted to unlisted trading
privileges on such an exchange, or is listed on the
National Market (the "National Market") of the
National Association of Securities Dealers Automated
Quotations System ("NASDAQ"), the fair market value
shall be the last reported sale price of the Common
Stock on such exchange or on the National Market on
the last business day before the effective date of
exercise of the net issue election or if no such sale
is made on such day, the mean of the closing bid and
asked prices for such day on such exchange or on the
National Market;
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the fair market value
shall be the mean of the last bid and asked prices
reported on the last business day before the date of
the election (1) by the NASDAQ or (2) if reports are
unavailable under clause (1) above by the National
Quotation Bureau Incorporated; and
(3) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and ask prices
are not reported, the fair market value shall be the
price per share which the Company could obtain from a
willing buyer for shares sold by the Company from
authorized but unissued shares, as such price shall
be determined by mutual agreement of the Company and
the holder of this Warrant. If the holder of this
Warrant and the Company are unable to agree on such
fair market value, the holder of this Warrant shall
select a pool of three independent and
nationally-recognized investment banking or
accounting firms from which the Company shall select
one such firm to appraise the fair market value of
the Warrant and to perform the computations involved.
The determination of such investment banking firm
shall be binding upon the Company, the holder of this
Warrant and any other holder of Warrants or Warrant
Shares in connection with any transaction occurring
at the time of such determination. All expenses of
such investment banking firm shall be borne equally
by the holder of this Warrant and the Company.
2. DELIVERY OF STOCK CERTIFICATES, ETC. ON EXERCISE. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within ten (10) days thereafter unless a determination of fair market
value per share of Common Stock is required pursuant to Section 1.5(b)(3) above,
the Company at its expense (including the payment by it of any applicable issue
taxes) will cause to be issued in the name of and delivered to the holder
hereof, or any Affiliate of such holder as such holder (upon payment by such
holder of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable shares of Common
Stock (or Other Securities) to which such holder shall be entitled on such
exercise, plus, in lieu of any fractional share to which such holder would
otherwise be entitled, cash equal to such fraction multiplied by the then
current market value of one full share, together with any
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other stock or other securities and property (including cash, where applicable)
to which such holder is entitled upon such exercise pursuant to Section 1 or
otherwise.
3. ADJUSTMENT FOR DIVIDENDS IN OTHER STOCK, PROPERTY, ETC.;
Reclassification, etc. In case at any time or from time to time, the holders of
Common Stock (or Other Securities) in their capacity as such shall have
received, or (on or after the record date fixed for the determination of
shareholders eligible to receive) shall have become entitled to receive, without
payment therefor,
(a) other or additional stock or other securities or property
(other than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of
earnings or earned surplus of the Company), or
(c) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up,
reclassification, recapitalization, combination of shares or
similar corporate rearrangement,
other than additional shares of Common Stock (or Other Securities) issued as a
stock dividend or in a stock-split (adjustments in respect of which are provided
for in Section 5), then and in each such case the holder of this Warrant, on the
exercise hereof as provided in Section 1, shall be entitled to receive the
amount of stock and other securities and property (including cash in the cases
referred to in subdivisions (b) and (c) of this Section 3) which such holder
would hold on the date of such exercise if on the date hereof he had been the
holder of record of the number of shares of Common Stock called for on the face
of this Warrant and had thereafter, during the period from the date hereof to
and including the date of such exercise, retained such shares and all such other
or additional stock and other securities and property (including cash in the
cases referred to in subdivisions (b) and (c) of this Section 3) receivable by
him as aforesaid during such period, giving effect to all adjustments called for
during such period by Sections 4 and 5.
4. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
4.1 REORGANIZATION, CONSOLIDATION, MERGER, ETC. In case at any time or
from time to time, the Company shall (a) effect a reorganization, (b)
consolidate with or merge into any other person, or (c) transfer all or
substantially all of its properties or assets to any other person under any plan
or arrangement contemplating the dissolution of the Company, then, in each such
case, the holder of this Warrant, on the exercise hereof as provided in Section
1 at any time after the consummation of such reorganization, consolidation or
merger or the effective date of such dissolution, as the case may be, shall
receive, in lieu of the Common Stock (or Other Securities) issuable on such
exercise prior to such consummation or such effective date, the stock and other
securities and property (including cash) to which such holder would have been
entitled upon such consummation or in connection with such dissolution, as the
case may be, if such holder had so exercised this Warrant, immediately prior
thereto, all subject to further adjustment thereafter as provided in Sections 3
and 5.
4.2 CONTINUATION OF TERMS. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to in
this Section 4, this Warrant
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shall continue in full force and effect, subject to expiration in accordance
with Section 17 hereof, and the terms hereof shall be applicable to the shares
of stock and other securities and property receivable on the exercise of this
Warrant after the consummation of such reorganization, consolidation or merger
or the effective date of dissolution following any such transfer, as the case
may be, and shall be binding upon the issuer of any such stock or other
securities, including, in the case of any such transfer, the person acquiring
all or substantially all of the properties or assets of the Company, whether or
not such person shall have expressly assumed the terms of this Warrant as
provided in Section 5.12.
5. ANTI-DILUTION ADJUSTMENT.
5.1 GENERAL. The Purchase Price shall be subject to adjustment from
time to time as hereinafter provided. Upon each adjustment of the Purchase
Price, the holder of this Warrant shall thereafter be entitled to purchase, at
the Purchase Price resulting from such adjustment, the number of shares obtained
by multiplying the Purchase Price in effect immediately prior to such adjustment
by the number of shares purchasable pursuant hereto immediately prior to such
adjustment and dividing the product thereof by the Purchase Price resulting from
such adjustment.
5.2 PURCHASE PRICE ADJUSTMENTS. If and whenever after the date hereof
the Company shall issue or sell any shares of its Common Stock (except upon
exercise of one or more of the Warrants) for a consideration per share less than
the Purchase Price in effect immediately prior to the time of such issuance or
sale, and/or the Company shall issue or sell any shares of its Common Stock for
a consideration per share less than the Conversion Price on the date of such
issuance or sale, or shall be deemed under the provisions of this Section 5 to
have effected any such issuance or sale, then, forthwith upon such issuance or
sale, the Purchase Price shall be reduced to the price (calculated to the
nearest $0.0001) obtained by multiplying the Purchase Price in effect
immediately prior to the time of such issuance or sale by a fraction, the
numerator of which shall be the sum of (i) the number of shares of Common Stock
outstanding immediately prior to such issuance or sale multiplied by the
Conversion Price immediately prior to such issuance or sale plus (ii) the
consideration received by the Company upon such issuance or sale, and the
denominator of which shall be the product of (iii) the total number of shares of
Common Stock outstanding immediately after such issuance or sale, multiplied by
(iv) the Conversion Price immediately prior to such issuance or sale.
Notwithstanding the foregoing, no adjustment of the Purchase Price shall be made
in an amount less than $0.0001 per share, but any such lesser adjustment shall
be carried forward and shall be made at the time of and together with the next
subsequent adjustment which together with any adjustments so carried forward
shall amount to $0.0001 per share or more.
5.3 OPTION GRANTS. In the event that at any time the Company shall in
any manner grant (directly, by assumption in a merger or otherwise) any rights
to subscribe for or to purchase, or any options for the purchase of, Common
Stock or any stock or securities convertible into or exchangeable for Common
Stock (such rights or options being herein called "Options" and such convertible
or exchangeable stock or securities being herein called "Convertible
Securities"), whether or not such Options or the right to convert or exchange
any such Convertible Securities are immediately exercisable, and the price per
share for which
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Common Stock is issuable upon the exercise of such Options or upon conversion or
exchange of such Convertible Securities (determined by dividing (i) the total
amount, if any, received or receivable by the Company as consideration for the
granting of such Options, plus the minimum aggregate amount of additional
consideration payable to the Company upon the exercise of all such Options,
plus, in the case of any such Options which relate to Convertible Securities,
the minimum aggregate amount of additional consideration, if any, payable upon
the issuance or sale of such Convertible Securities and upon the conversion or
exchange thereof, by (ii) the total number of shares of Common Stock issuable
upon the exercise of such Options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such Options) shall be less
than the Purchase Price in effect immediately prior to the time of the granting
of such Options (or less than the Conversion Price, determined as of the date of
granting such Options, as the case may be), then the total number of shares of
Common Stock issuable upon the exercise of such Options or upon conversion or
exchange of the total amount of such Convertible Securities issuable upon the
exercise of such Options shall (as of the date of granting such Options) be
deemed to be outstanding and to have been issued for such price per share.
Except as otherwise provided in subsection 5.5, no further adjustment of the
Purchase Price shall be made upon the actual issuance of such Common Stock or of
such Convertible Securities upon exercise of such Options or upon the actual
issuance of such Common Stock upon conversion or exchange of such Convertible
Securities.
5.4 CONVERTIBLE SECURITY GRANTS. In the event that the Company shall in
any manner issue (directly, by assumption in a merger or otherwise) or sell any
Convertible Securities (other than pursuant to the exercise of Options to
purchase such Convertible Securities covered by subsection 5.3), whether or not
the rights to exchange or convert thereunder are immediately exercisable, and
the price per share for which Common Stock is issuable upon such conversion or
exchange (determined by dividing (i) the total amount received or receivable by
the Company as consideration for the issuance or sale of such Convertible
Securities, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the conversion or exchange thereof, by (ii) the
total maximum number of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities) shall be less than the Purchase
Price in effect immediately prior to the time of such issuance or sale (or less
than the Conversion Price, determined as of the date of such issuance or sale of
such Convertible Securities, as the case may be), then the total maximum number
of shares of Common Stock issuable upon conversion or exchange of all such
Convertible Securities shall (as of the date of the issuance or sale of such
Convertible Securities) be deemed to be outstanding and to have been issued for
such price per share, provided that, except as otherwise provided in Section
5.5, no further adjustment of the Purchase Price shall be made upon the actual
issuance of such Common Stock upon conversion or exchange of such Convertible
Securities.
5.5 EFFECT OF ALTERATION TO OPTION OR CONVERTIBLE SECURITY TERMS. In
connection with any change in, or the expiration or termination of, the purchase
rights under any Option or the conversion or exchange rights under any
Convertible Securities, the following provisions shall apply:
(A) If the purchase price provided for in any Option referred to in
subsection 5.3, the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in subsection
5.3 or 5.4, or the rate at which any Convertible Securities
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referred to in subsection 5.3 or 5.4 are convertible into or exchangeable for
Common Stock shall change at any time (other than under or by reason of
provisions designed to protect against dilution), then the Purchase Price in
effect at the time of such change shall forthwith be increased or decreased to
the Purchase Price which would be in effect immediately after such change if (a)
the adjustments which were made upon the issuance of such Options or Convertible
Securities had been made upon the basis of (and taking into account the total
consideration received for) (i) the issuance at that time of the Common Stock,
if any, delivered upon the exercise of any such Options or upon the conversion
or exchange of any such Convertible Securities before such change, and (ii) the
issuance at that time of all such Options or Convertible Securities, with terms
and provisions reflecting such change, which are still outstanding after such
change, and (b) the Purchase Price as adjusted pursuant to clause (a) preceding
had been used as the basis for the adjustments required hereunder in connection
with all other issues or sales of Common Stock, Options or Convertible
Securities by the Company subsequent to the issuance of such Options or
Convertible Securities.
(B) On the partial or complete expiration of any Options or termination
of any right to convert or exchange Convertible Securities, the Purchase Price
then in effect hereunder shall forthwith be increased or decreased to the
Purchase Price which would be in effect at the time of such expiration or
termination if (a) the adjustments which were made upon the issuance of such
Options or Convertible Securities had been made upon the basis of (and taking
into account the total consideration received for) (i) the issuance at that time
of the Common Stock, if any, delivered upon the exercise of such Options or upon
the conversion or exchange of such Convertible Securities before such expiration
or termination, and (ii) the issuance at that time of only those such Options or
Convertible Securities which remain outstanding after such expiration or
termination, and (b) the Purchase Price as adjusted pursuant to clause (a)
preceding had been used as the basis for adjustments required hereunder in
connection with all other issues or sales of Common Stock, Options or
Convertible Securities by the Company subsequent to the issuance of such Options
or Convertible Securities.
(C) If the purchase price provided for in any Option referred to in
subsection 5.3 or the rate at which any Convertible Securities referred to in
subsection 5.3 or 5.4 are convertible into or exchangeable for Common Stock
shall be reduced at any time under or by reason or provisions with respect
thereto designed to protect against dilution, and the event causing such
reduction is one that did not also require an adjustment in the Purchase Price
under other provisions of this Section 5, then in case of the delivery of shares
of Common Stock upon the exercise of any such Option or upon conversion or
exchange of any such Convertible Securities, the Purchase Price then in effect
hereunder shall forthwith be adjusted to such amount as would have obtained if
such Option or Convertible Securities had never been issued and if the
adjustments made upon the issuance of such Option or Convertible Securities had
been made upon the basis of the issuance of (and taking into account the total
consideration received for) the shares of Common Stock delivered as aforesaid
(provided that the Conversion Price used in such determination shall be the
Conversion Price on the date of issuance of such shares); provided that no such
adjustment shall be made unless the Purchase Price then in effect would be
reduced thereby.
5.6 DIVIDENDS OF COMMON STOCK, OPTIONS OR CONVERTIBLE SECURITIES. In
the event that the Company shall declare a dividend or make any other
distribution upon any stock of the
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Company payable in Common Stock, Options or Convertible Securities, any Common
Stock, Options or Convertible Securities, as the case may be, issuable in
payment of such dividend or distribution shall be deemed to have been issued or
sold without consideration.
5.7 DILUTION IN CASE OF OTHER SECURITIES. In case any Other Securities
shall be issued or sold by the Company, or shall become subject to issue upon
the conversion or exchange of any stock (or Other Securities) of the Company (or
any other issuer of Other Securities or any other person referred to in Section
4) or to subscription, purchase or other acquisition pursuant to any rights or
options granted by the Company (or such other issuer or person), for a
consideration per share such as to dilute the purchase rights evidenced by this
Warrant, the computations, adjustments and readjustments provided for in this
Section 5 with respect to the Purchase Price and the number of shares of Common
Stock issuable upon exercise of this Warrant shall be made as nearly as possible
in the manner so provided and applied to determine the amount of Other
Securities from time to time receivable on the exercise of the Warrants, so as
to protect the holders of the Warrants against the effect of such dilution.
5.8 STOCK SPLITS AND REVERSE SPLITS. In the event that the Company
shall at any time subdivide its outstanding shares of Common Stock into a
greater number of shares, the Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of Warrant Shares
purchasable pursuant to this Warrant immediately prior to such subdivision shall
be proportionately increased, and conversely, in the event that the outstanding
shares of Common Stock of the Company shall at any time be combined into a
smaller number of shares, the Purchase Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrant Shares
purchasable upon the exercise of this Warrant immediately prior to such
combination shall be proportionately reduced. Except as provided in this
subsection 5.8 no adjustment in the Purchase Price or Conversion Price and no
change in the number of Warrant Shares purchasable shall be made under this
Section 5 as a result of or by reason of any such subdivision or combination.
5.9 DETERMINATION OF CONSIDERATION RECEIVED. For purposes of this
Section 5, the amount of consideration received by the Company in connection
with the issuance or sale of Common Stock, Options or Convertible Securities
shall be determined in accordance with the following:
(A) In the event that shares of Common Stock, Options or Convertible
Securities shall be issued or sold for cash, the consideration received therefor
shall be deemed to be the amount payable to the Company therefor, without
deduction therefrom of any expenses incurred or any underwriting commissions or
concessions or discounts paid or allowed by the Company in connection therewith.
(B) In the event that any shares of Common Stock, Options or
Convertible Securities shall be issued or sold for a consideration other than
cash, the amount of the consideration other than cash payable to the Company
shall be deemed to be the fair value of such consideration as reasonably
determined by the Board of Directors of the Company, without deduction of any
expenses incurred or any underwriting commissions or concessions or discounts
paid or allowed by the Company in connection therewith.
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(C) The amount of consideration deemed to be received by the Company
pursuant to the foregoing provisions of this subsection 5.9 upon any issuance
and/or sale, pursuant to an established compensation plan of the Company, to
directors, officers or employees of the Company in connection with their
employment, of shares of Common Stock, Options or Convertible Securities, shall
be increased by the amount of any tax benefit realized by the Company as a
result of such issuance and/or sale, the amount of such tax benefit being the
amount by which the federal and/or state income or other tax liability of the
Company shall be reduced by reason of any deduction or credit in respect of such
issuance and/or sale.
(D) In the event that any shares of Common Stock, Options or
Convertible Securities shall be issued in connection with any merger in which
the Company is the surviving corporation, the amount of consideration therefor
shall be deemed to be the fair value as reasonably determined by the Board of
Directors of the Company of such portion of the assets and business of the
non-surviving corporation as such Board shall determine to be attributable to
such Common Stock, Options or Convertible Securities, as the case may be.
(E) In the event that any Common Stock, Options and/or Convertible
Securities shall be issued in connection with the issue and sale of other
securities or property of the Company, together comprising one integral
transaction in which no specific consideration is allocated to such Common
Stock, Options or Convertible Securities by the parties thereto, such Common
Stock, Options and/or Convertible Securities shall be deemed to have been issued
without consideration.
5.10 RECORD DATE AS DATE OF ISSUANCE OR SALE. In the event that at any
time the Company shall take a record of the holders of its Common Stock for the
purpose of entitling them (i) to receive a dividend or other distribution
payable in Common Stock, Options or Convertible Securities, or (ii) to subscribe
for or purchase Common Stock, Options or Convertible Securities, then such
record date shall be deemed to be the date of the issue or sale of the shares of
Common Stock deemed to have been issued or sold upon the declaration of such
dividend or the making of such other distribution or the date of the granting of
such right of subscription or purchase, as the case may be.
5.11 TREASURY STOCK. The number of shares of Common Stock outstanding
at any given time shall not include shares owned or held by or for the account
of the Company, and the disposition of any such shares (other than their
cancellation without reissuance) shall be considered an issue or sale of Common
Stock for the purposes of this Section 5.
5.12 CERTAIN ISSUES OF COMMON STOCK EXCEPTED. Anything herein to the
contrary notwithstanding, the Company shall not be required to make any
adjustments pursuant to this Section 5, or deliver any notice pursuant to
Section 8, in the case of the issuance of, or the grant of options for the
purchase of, (a) up to an aggregate of 9,170,033 shares of Common Stock
(appropriately adjusted to reflect stock splits, stock dividends, etc.) to
officers and employees of the Company in connection with their service to the
Company; (b) up to an aggregate of 383,315 shares of Common Stock (appropriately
adjusted to reflect stock splits, stock dividends, etc.) to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; or
(c) up to an aggregate of 125,000 shares of Common Stock (appropriately adjusted
to reflect stock splits, stock dividends, etc.) to the Bank.
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6. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or through any 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 of the Warrants, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holders of the
Warrants against dilution or other impairment. Without limiting the generality
of the foregoing, the Company (a) will not increase the par value or stated
value of any shares of stock receivable on the EXERCISE of the Warrants above
the amount payable therefor on such exercise, (b) will take all such action as
may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of stock on the exercise of
all Warrants from time to time outstanding, (c) will not issue any capital stock
of any class which is preferred as to dividends or as to the distribution of
assets upon voluntary or involuntary dissolution, liquidation or winding up,
unless the rights of the holders thereof shall be limited to a fixed sum or
percentage of par value in respect of participation in dividends and in any such
distribution of assets, and (d) will not transfer all or substantially all of
its properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall expressly assume in writing and become
bound by all the terms of the Warrants.
7. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment or
readjustment in the shares of Common Stock (or Other Securities) issuable on the
exercise of the Warrants, the Company's chief financial officer shall compute
such adjustment or readjustment in accordance with the terms of the Warrants and
prepare a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based,
including a statement of (a) the consideration received or receivable by the
Company for any additional shares of Common Stock (or Other Securities) issued
or sold or deemed to have been issued or sold, (b) the number of shares of
Common Stock (or Other Securities) outstanding or deemed to be outstanding, and
(c) the Purchase Price and the number of shares of Common Stock to be received
upon exercise of this Warrant, in effect immediately prior to such issue or sale
and as adjusted and readjusted as provided in this Warrant. The Company will
forthwith mail a copy of each such certificate to each holder of a Warrant, and
will, on the written request at any time of any holder of a Warrant, furnish to
such holder a like certificate setting forth the Purchase Price at the time in
effect and showing how it was calculated.
8. NOTICES OF RECORD DATE, ETC. IN THE EVENT OF:
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any transfer of all or
substantially all the assets of the Company to or consolidation or merger of the
Company with or into any other person, or
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(c) any voluntary or involuntary dissolution, liquidation or winding-up
of the Company, or
(d) any proposed issue or grant by the Company of any shares of stock
of any class or any other securities, or any right or option to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities (other than the issue of Common Stock on the exercise of the Warrants
or as provided in Section 5.12),
then and in each such event the Company will mail or cause to be mailed to each
holder of a Warrant a notice specifying (i) the date on which any such record is
to be taken for the purpose of such dividend, distribution or right, and stating
the amount and character of such dividend, distribution or right, (ii) the date
on which any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holders of record of Common
Stock (or Other Securities) shall be entitled to exchange their shares of Common
Stock (or Other Securities) for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up, and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least ten (10) days
prior to the date specified in such notice on which any such action is to be
taken.
9. RESERVATION OF STOCK, ETC. ISSUABLE ON EXERCISE OF WARRANTS. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of the Warrants, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of the Warrants.
10. EXCHANGE OF WARRANTS. On surrender for exchange of any Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to or on the order of the holder thereof a new Warrant or Warrants of
like tenor, in the name of such holder or as such holder (on payment by such
holder of any applicable transfer taxes) may direct, calling in the aggregate on
the face or faces thereof for the number of shares of Common Stock called for on
the face or faces of the Warrant or Warrants so surrendered.
11. REPLACEMENT OF WARRANTS. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant,
on delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
12. WARRANT AGENT. The Company may, by written notice to each holder of
a Warrant, appoint an agent having an office in Boston, Massachusetts for the
purpose of issuing Common Stock (or Other Securities) on the exercise of the
Warrants pursuant to Section 1, exchanging Warrants pursuant to Section 10, and
replacing Warrants pursuant to Section 11, or
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any of the foregoing, and thereafter any such issuance, exchange or replacement,
as the case may be, shall be made at such office by such agent.
13. REMEDIES. The Company stipulates that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
14. NEGOTIABILITY, ETC. THIS Warrant is issued upon the following
terms, to all of which each holder or owner hereof by the taking hereof consents
and agrees:
(a) title to this Warrant may be transferred to any Affiliate of the
holder hereof by endorsement (by the holder hereof executing the form of
assignment at the end hereof) and delivery in the same manner as in the case of
a negotiable instrument transferable by endorsement and delivery; and
(b) any permitted transferee in possession of this Warrant properly
endorsed for transfer to such person (including endorsed in blank) is authorized
to represent himself as absolute owner hereof and is empowered to transfer
absolute title hereto by endorsement and delivery hereof to a bona fide
purchaser hereof for value; each prior taker or owner waives and renounces all
of his equities or rights in this Warrant in favor of each such bona fide
purchaser, and each such bona fide purchaser shall acquire absolute title hereto
and to all rights represented hereby. Nothing in this paragraph (b) shall create
any liability on the part of the Company beyond any liability or responsibility
it has under law.
15. NOTICES, ETC. All notices and other communications from the Company
to the holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such holder or, until any such holder furnishes to the
Company an address, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
16. MISCELLANEOUS. 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. This Warrant shall be construed and enforced in accordance with and
governed by the laws of the Commonwealth of Massachusetts. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. This Warrant is being executed as an instrument
under seal. The invalidity or unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other provision.
17. EXPIRATION. The right to exercise this Warrant shall expire at 5:00
p.m., Boston time, on the later of (i) February 26, 2006 or (ii) at such time as
all principal and interest on the Notes are paid in full. Notwithstanding the
foregoing, this Warrant shall automatically be deemed to be exercised in full
pursuant to the provisions of Section 1.5 hereof, without any
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further action on behalf of the holder, immediately prior to the time this
Warrant would otherwise expire pursuant to the preceding sentence.
IN WITNESS WHEREOF, the Company has executed this Warrant under seal as
of the date first written above.
LIONBRIDGE TECHNOLOGIES HOLDINGS, INC.
By:
---------------------------------------
Name:
Title:
[Corporate Seal]
Attest:
By:
-------------------------------
Name:
Title:
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FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
Lionbridge Technologies Holdings, Inc.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, ........ shares
of Common Stock of Lionbridge Technologies Holdings, Inc. and herewith makes
payment of $........ therefor, and requests that the certificates for such
shares be issued in the name of, and delivered to .............., federal
taxpayer identification number ............, whose address is
...................
Dated:
-----------------------------------
(Signature must conform to name
of holder as specified on the
face of the Warrant)
-----------------------------------
(Address)
Signed in the presence of:
-----------------------------------
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FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto .................., federal taxpayer identification number
..........., whose address is ............, and who is an Affiliate of the
undersigned (as defined in the within Warrant) the right represented by the
within Warrant to purchase ............. shares of Common Stock of Lionbridge
Technologies Holdings, Inc. to which the within Warrant relates, and appoints
.......................... Attorney to transfer such right on the books of
Lionbridge Technologies Holdings, Inc. with full power of substitution in the
premises.
Dated:
------------------------------------
(Signature must conform to name
of holder as specified on the
face of the Warrant)
------------------------------------
(Address)
Signed in the presence of:
---------------------------------
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