Warrant to Purchase Stock - PlanetOut Corp. and Mayfield X LP
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO SUCH SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
PLANETOUT INC.
AMENDED AND RESTATED WARRANT
TO PURCHASE COMMON STOCK
NO. PCW- ORIGINAL WARRANT ISSUANCE DATE: MAY 10, 2000
AMENDED AND RESTATED: MARCH 21, 2001
RE-ISSUED: JUNE 23, 2004
VOID AFTER MAY 10, 2005
BACKGROUND
1. Reference is made to that certain Warrant to Purchase Shares of
Preferred Stock of PlanetOut Corporation ("PNO"), No. PCW-1, originally issued
to Mayfield X L.P. (the "ORIGINAL HOLDER") on May 10, 2000 and subsequently
amended and restated on March 21, 2001 (as so amended, the "ORIGINAL WARRANT").
2. The Original Warrant was exercisable for up to 83,288 shares of the
Series C Preferred Stock of PNO, at an exercise price of $3.602 per share.
3. On April 16, 2001, PNO became a wholly owned subsidiary of PlanetOut
Inc. (f/k/a "PlanetOut Partners, Inc."), a Delaware corporation (the "COMPANY"),
and, in connection therewith, the Original Warrant was assumed by the Company
and became exercisable for up to 83,288 shares of the Series B-2 Preferred Stock
of the Company at an exercise price of $3.602 per share.
4. On June 29, 2001, the Company filed its Third Amended and Restated
Certificate of Incorporation with the Secretary of State of Delaware, and,
effective upon such filing, certain shares of the Company's series of Preferred
Stock, including the shares of the Company's Series B-2 Preferred Stock
underlying the Original Warrant, were automatically converted into shares of
Common Stock of the Company on a 1:1 basis (the "RECAPITALIZATION").
5. As a result of the Recapitalization, the Original Warrant became
exercisable for up to 83,288 shares of the Common Stock of the Company, at an
exercise price of $3.602 per share.
6. The Original Holder has agreed to assign portions of the Original
Warrant to certain of its affiliates (each of whom is a stockholder of the
Company), and to retain the balance of the Original Warrant for itself, as
follows (the "REALLOCATION"):
<PAGE>
NAME UNDERLYING SHARES
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Mayfield X L.P. (the Original Holder) 72,460
Mayfield Associates Fund V, LLP 2,499
Mayfield Principals Fund LLC 8,329
TOTAL: 83,288
7. This Warrant is being issued in connection with the Reallocation, and
it amends, restates and supersedes in all respects the Original Warrant to
reflect to foregoing changes.
THIS CERTIFIES THAT, for value received, ___________________________ or
its assigns (the "HOLDER"), is entitled to subscribe for and purchase at the
Exercise Price (defined below in Section 1(b)) from PLANETOUT INC., a Delaware
corporation, with its principal office at 300 California Street, Suite 200, San
Francisco, CA 94104 (the "CORPORATION") up to __________ shares of the
Corporation's Common Stock, subject to adjustment as set forth below in Section
5.
1. DEFINITIONS. As used herein, the following terms shall have the
following respective meanings:
(A) "EXERCISE PERIOD" shall mean the period commencing September 18,
2000 and ending May 10, 2005, unless sooner terminated as provided below.
(B) "EXERCISE PRICE" shall mean $3.602 per share, subject to
adjustment pursuant to Section 5 below.
(C) "EXERCISE SHARES" shall mean the shares of Common Stock issuable
upon exercise of this Warrant.
2. EXERCISE OF WARRANT. The rights represented by this Warrant may be
exercised in whole or in part at any time during the Exercise Period, by
delivery of the following to the Corporation at its address set forth above (or
at such other address as it may designate by notice in writing to the Holder):
(A) An executed Notice of Exercise in the form attached hereto;
(B) Payment of the Exercise Price either (i) in cash or by check, or
(ii) by cancellation of indebtedness; and
(C) This Warrant.
Upon the exercise of the rights represented by this Warrant, a certificate
or certificates for the Exercise Shares so purchased, registered in the name of
the Holder or persons affiliated with the Holder, if the Holder so designates,
shall be issued and delivered to the Holder within a reasonable time after the
rights represented by this Warrant shall have been so exercised.
The person in whose name any certificate or certificates for Exercise
Shares are to be issued upon exercise of this Warrant shall be deemed to have
become the holder of record of such shares on the date on which this Warrant was
surrendered and payment of the Exercise Price was made, irrespective of the date
of delivery of such certificate or certificates, except that, if the date of
such surrender and payment is a date when the stock transfer books of the
Corporation are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
<PAGE>
2.1. NET EXERCISE. Notwithstanding any provisions herein to the contrary,
if the fair market value of one share of the Corporation's Common Stock is
greater than the Exercise Price (at the date of exercise), in lieu of exercising
this Warrant by payment of cash, the Holder may elect to receive shares equal to
the value (as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the
Corporation together with the properly endorsed Notice of Exercise in which
event the Corporation shall issue to the Holder a number of shares of Common
Stock computed using the following formula:
X = Y (A-B)
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A
Where X = the number of shares of Common Stock to be issued to the
Holder
Y = the number of shares of Common Stock purchasable under
the Warrant or, if only a portion of the Warrant is
being exercised, the portion of the Warrant being
canceled (at the date of such calculation)
A = the fair market value of one share of the Corporation's
Common Stock (at the date of such calculation)
B = Exercise Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, the fair market value of one share
of Common Stock shall be determined by the Corporation's Board of Directors in
good faith as of the date of exercise; provided, however, that in the event that
this Warrant is exercised pursuant to this Section 2.1 in connection with the
Corporation's initial public offering of its Common Stock, the fair market value
of one share of Common Stock shall be equal to the per share offering price of
the Corporation's Common Stock to the public.
3. COVENANTS OF THE CORPORATION.
3.1. COVENANTS AS TO EXERCISE SHARES. The Corporation covenants and agrees
that all Exercise Shares that may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly issued and
outstanding, fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issuance thereof. The Corporation further covenants
and agrees that the Corporation will at all times during the Exercise Period,
have authorized and reserved, free from preemptive rights, a sufficient number
of shares of its Common Stock to provide for the exercise of the rights
represented by this Warrant. If at any time during the Exercise Period the
number of authorized but unissued shares of Common Stock shall not be sufficient
to permit exercise of this Warrant, the Corporation will take such corporate
action as may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall
be sufficient for such purposes.
3.2. NO IMPAIRMENT. Except and to the extent as waived or consented to by
the Holder, the Corporation 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 to be
observed or performed hereunder by the Corporation, but will at all times in
good faith assist in the carrying out of all the provisions of this Warrant and
in the taking of all such action as may be necessary or appropriate in order to
protect the exercise rights of the Holder against impairment.
<PAGE>
3.3. NOTICES OF RECORD DATE. In the event of any taking by the Corporation
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 (other
than a cash dividend which is the same as cash dividends paid in previous
quarters) or other distribution, the Corporation shall mail to the Holder, at
least ten (10) days prior to the date specified therein, a notice specifying the
date on which any such record is to be taken for the purpose of such dividend or
distribution.
4. REPRESENTATIONS OF HOLDER.
4.1. ACQUISITION OF WARRANT FOR PERSONAL ACCOUNT. The Holder represents
and warrants that it is acquiring the Warrant solely for its account for
investment and not with a view to or for sale or distribution of said Warrant or
any part thereof. The Holder also represents that the entire legal and
beneficial interests of the Warrant and Exercise Shares the Holder is acquiring
is being acquired for, and will be held for, its account only.
4.2. SECURITIES ARE NOT REGISTERED.
(A) The Holder understands that the Warrant and the Exercise Shares
have not been registered under the Securities Act of 1933, as amended (the
"ACT") on the basis that no distribution or public offering of the stock of the
Corporation is to be effected. The Holder realizes that the basis for the
exemption may not be present if, notwithstanding its representations, the Holder
has a present intention of acquiring the securities for a fixed or determinable
period in the future, selling (in connection with a distribution or otherwise),
granting any participation in, or otherwise distributing the securities. The
Holder has no such present intention.
(B) The Holder recognizes that the Warrant and the Exercise Shares
must be held indefinitely unless they are subsequently registered under the Act
or an exemption from such registration is available. The Holder recognizes that
the Corporation has no obligation to register the Warrant or the Exercise Shares
of the Corporation, or to comply with any exemption from such registration.
(C) The Holder is aware that neither the Warrant nor the Exercise
Shares may be sold pursuant to Rule 144 adopted under the Act unless certain
conditions are met, including, among other things, the existence of a public
market for the shares, the availability of certain current public information
about the Corporation, the resale following the required holding period under
Rule 144 and the number of shares being sold during any three month period not
exceeding specified limitations. Holder is aware that the conditions for resale
set forth in Rule 144 have not been satisfied and that the Corporation presently
has no plans to satisfy these conditions in the foreseeable future.
4.3. DISPOSITION OF WARRANT AND EXERCISE SHARES.
(A) The Holder further agrees not to make any disposition of all or
any part of the Warrant or Exercise Shares in any event unless and until:
(I) The Corporation shall have received a letter secured by
the Holder from the Securities and Exchange Commission stating that no action
will be recommended to the Commission with respect to the proposed disposition;
or
(II) There is then in effect a registration statement under
the Act covering such proposed disposition and such disposition is made in
accordance with said registration statement; or
<PAGE>
(III) The Holder shall have notified the Corporation of the
proposed disposition and shall have furnished the Corporation with a detailed
statement of the circumstances surrounding the proposed disposition, and if
reasonably requested by the Corporation, the Holder shall have furnished the
Corporation with an opinion of counsel, reasonably satisfactory to the
Corporation, for the Holder to the effect that such disposition will not require
registration of such Warrant or Exercise Shares under the Act or any applicable
state securities laws.
(B) The Holder understands and agrees that all certificates
evidencing the shares to be issued to the Holder may bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
(C) The Holder hereby agrees not to sell or otherwise transfer or
dispose of all or any part of this Warrant or the Exercise Shares during a
period specified by the representative of the underwriters of Common Stock (not
to exceed one hundred eighty (180) days) following the effective date of the
registration statement of the Corporation filed under the Act. Holder further
agrees that the Corporation may impose stop-transfer instructions with respect
to securities subject to the foregoing restrictions until the end of such
period.
4.4. ACCREDITED INVESTOR. The Holder represents that it is an accredited
investor within the meaning of Regulation D of the Securities Act.
5. ADJUSTMENT OF EXERCISE PRICE. In the event of changes in the
outstanding Common Stock of the Corporation by reason of stock dividends,
split-ups, recapitalizations, reclassifications, combinations or exchanges of
shares, separations, reorganizations, liquidations, or the like, the number and
class of shares available under the Warrant in the aggregate and the Exercise
Price shall be correspondingly adjusted to give the Holder of the Warrant, on
exercise for the same aggregate Exercise Price, the total number, class, and
kind of shares as the Holder would have owned had the Warrant been exercised
prior to the event and had the Holder continued to hold such shares until after
the event requiring adjustment. The form of this Warrant need not be changed
because of any adjustment in the number of Exercise Shares subject to this
Warrant.
6. FRACTIONAL SHARES. No fractional shares shall be issued upon the
exercise of this Warrant as a consequence of any adjustment pursuant hereto. All
Exercise Shares (including fractions) issuable upon exercise of this Warrant may
be aggregated for purposes of determining whether the exercise would result in
the issuance of any fractional share. If, after aggregation, the exercise would
result in the issuance of a fractional share, the Corporation shall, in lieu of
issuance of any fractional share, pay the Holder otherwise entitled to such
fraction a sum in cash equal to the product resulting from multiplying the
Exercise Price by such fraction.
7. EFFECT OF CERTAIN TRANSACTIONS. In the event of any capital
reorganization, or any reclassification of the capital stock of the Corporation
(other than a change in par value or from par value to no par value or no par
value to par value or as a result of a stock dividend or subdivision, split-up
or combination of shares), or the consolidation or merger of the Corporation
with or into another corporation (other than a merger solely to effect a
re-incorporation of the Corporation into another state), or the sale or other
disposition of all or substantially all the properties and assets of the
Corporation in its entirety to
<PAGE>
any other person, lawful provision shall be made so that the Holder, on the
exercise hereof as provided in Section 2 at any time after the consummation of
such reorganization, reclassification, consolidation, merger, sale or other
disposition, as the case may be, shall be entitled to receive, in lieu of the
Common Stock issuable on such exercise prior to such consummation or such
effective date, the stock and other securities and property (including cash) to
which the Holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if the Holder had so
exercised this Warrant, immediately prior thereto.
8. NO STOCKHOLDER RIGHTS. This Warrant in and of itself shall not entitle
the Holder to any voting rights or other rights as a stockholder of the
Corporation.
9. TRANSFER OF WARRANT. Subject to applicable laws and the restriction on
transfer set forth on the first page of this Warrant, this Warrant and all
rights hereunder are transferable, by the Holder in person or by duly authorized
attorney, upon delivery of this Warrant and the form of assignment attached
hereto to any transferee designated by Holder. The transferee shall sign an
investment letter in form and substance satisfactory to the Corporation.
10. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost,
stolen, mutilated or destroyed, the Corporation may, on such terms as to
indemnity or otherwise as it may reasonably impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute an original contractual obligation of the
Corporation, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by anyone.
11. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by telex, telegram,
express mail or other form of rapid communications, if possible, and if not then
such notice or communication shall be mailed by first-class mail, postage
prepaid, addressed in each case to the party entitled thereto at the following
addresses: (a) if to the Corporation, to PlanetOut Inc., Attention: President,
300 California Street, Suite 200, San Francisco, CA 94104 and (b) if to the
Holder, to
C/O MAYFIELD FUND
2800 SAND HILL ROAD
MENLO PARK, CALIFORNIA 94025
ATTN: ALLEN MORGAN
or at such other address as one party may furnish to the other in writing.
Notice shall be deemed effective on the date dispatched if by personal delivery,
telecopy, telex or telegram, two days after mailing if by express mail, or three
days after mailing if by first-class mail.
12. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute
acceptance of and agreement to all of the terms and conditions contained herein.
13. GOVERNING LAW. This Warrant and all rights, obligations and
liabilities hereunder shall be governed by the laws of the State of California.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Warrant to be executed by its duly authorized officer as of June 23, 2004.
PLANETOUT INC.
By
--------------------
Lowell R. Selvin
Chief Executive Officer
ATTEST:
---------------------
Jeffrey T. Soukup
Secretary
ACKNOWLEDGED AND AGREED:
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By:
------------------------
Name:
----------------------
Title:
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ACKNOWLEDGEMENT OF ASSIGNMENT:
The Original Holder acknowledges, confirms and agrees to the assignment of the
Original Warrant to the Holder to the extent set forth under paragraph 6 under
"Background", as of the date set forth above.
MAYFIELD X L.P.
---------------------------
By:
------------------------
Name:
----------------------
Title:
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<PAGE>
NOTICE OF EXERCISE
TO: PLANETOUT INC.
(1) [ ] The undersigned hereby elects to purchase ________ shares of the
Common Stock of PlanetOut Inc. (the "CORPORATION") pursuant to the terms of the
attached Warrant, and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
[ ] The undersigned hereby elects to purchase ________ shares of the
Common Stock of the Corporation pursuant to the terms of the net exercise
provisions set forth in Section 2.1 of the attached Warrant, and shall tender
payment of all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
------------------------
(Name)
------------------------
------------------------
(Address)
(3) The undersigned represents that (i) the aforesaid shares of Common
Stock are being acquired for the account of the undersigned for investment and
not with a view to, or for resale in connection with, the distribution thereof
and that the undersigned has no present intention of distributing or reselling
such shares; (ii) the undersigned is aware of the Corporation's business affairs
and financial condition and has acquired sufficient information about the
Corporation to reach an informed and knowledgeable decision regarding its
investment in the Corporation; (iii) the undersigned is experienced in making
investments of this type and has such knowledge and background in financial and
business matters that the undersigned is capable of evaluating the merits and
risks of this investment and protecting the undersigned's own interests; (iv)
the undersigned understands that the shares of Common Stock issuable upon
exercise of this Warrant have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), by reason of a specific exemption from
the registration provisions of the Securities Act, which exemption depends upon,
among other things, the bona fide nature of the investment intent as expressed
herein, and, because such securities have not been registered under the
Securities Act, they must be held indefinitely unless subsequently registered
under the Securities Act or an exemption from such registration is available;
(v) the undersigned is aware that the aforesaid shares of Common Stock may not
be sold pursuant to Rule 144 adopted under the Securities Act unless certain
conditions are met and until the undersigned has held the shares for the number
of years prescribed by Rule 144, that among the conditions for use of the Rule
is the availability of current information to the public about the Corporation
and the Corporation has not made such information available and has no present
plans to do so; and (vi) the undersigned agrees not to make any disposition of
all or any part of the aforesaid shares of Common Stock unless and until there
is then in effect a registration statement under the Securities Act covering
such proposed disposition and such disposition is made in accordance with said
registration statement, or the undersigned has provided the Corporation with an
opinion of counsel satisfactory to the Corporation, stating that such
registration is not required.
----------------------- ----------------------------
(Date) (Signature)
----------------------------
(Print name)
<PAGE>
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and
supply required information. Do
not use this form to purchase
shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
Name:
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(Please Print)
Address:
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(Please Print)
Dated:
-----------------
Holder's
Signature:
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Holder's
Address:
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NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.