Exhibit 10.11
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR THE SECURITIES LAWS OF ANY STATE. THIS WARRANT MAY NOT
BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER PROVISIONS OF
THE FEDERAL ACT AND ALL APPLICABLE STATE SECURITIES LAWS.
Right to Purchase Shares of Common Stock of Zycad Corporation
August 21, 1997
-------------------------
Common Stock Purchase Warrant
ZYCAD CORPORATION, a Delaware corporation (the "Company"), hereby
certifies that for $10.00 and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Capital Ventures
International, having an address at 0 Xxxxxxx Xxxxx, X.X. Xxx 0000XX, Xxxxx
Xxxxxx, Xxxxxx Xxxxxxx ("Purchaser") or any other Warrant Holder is entitled,
on the terms and conditions set forth below, to purchase from the Company at
any time beginning after the date hereof and ending thirty-six (36) months
after the date hereof One Hundred and Twenty Two Thousand and Five Hundred
(122,500) shares of fully paid and nonassessable shares of Common Stock, $.10
par value, of the Company (the "Common Stock"), at a purchase price per
share of Fifty Three and One Hundred Twenty Five Thousand Cents (U.S.
$.53125) per share of Common Stock (the "Purchase Price"), as the same may be
adjusted pursuant to Section 5 herein.
1. DEFINITIONS.
(a) the term "Warrant Holder" shall mean the Purchaser or any assignee
of all or any portion of this Warrant at any given time who, at the time of
assignment, acquired the right to purchase at least 2,000 Warrant Shares,
(such number being subject to adjustment after the date hereof pursuant to
Section 5 herein.)
(b) the term "Warrant Shares" shall mean the Shares of Common Stock or
other securities issuable upon exercise of this Warrant.
(c) other terms used herein which are defined in the Convertible
Securities Subscription Agreement (the "Agreement") or the Registration
Rights Agreement (the "Registration Rights Agreement"), both dated February
13, 1997 between the Company and the Purchaser, shall have the same meanings
herein as therein.
2. EXERCISE OF WARRANT. This Warrant may be exercised by the
Warrant Holder, in whole or in part, at any time and from time to time by
surrender of this Warrant, together with the form of subscription at the end
hereof duly executed by Warrant Holder, to the Company at its principal
office. In the event that the Warrant is not exercised in full, the number
of Warrant Shares shall be reduced by the number of such Warrant Shares for
which this Warrant is exercised, and the Company, at its expense, shall
forthwith issue and deliver to or upon the order of Warrant Holder a new
Warrant of like tenor in the name of Warrant Holder or as Warrant Holder
(upon payment by Warrant Holder of any applicable transfer taxes) may
request, reflecting such adjusted Warrant Shares.
If, despite the Company's obligations provided in Paragraphs 4(a) and
4(d) hereof, the Company shall not have registered pursuant to a Registration
Statement under the Act and/or available for issuance upon exercise of this
Warrant sufficient shares of Common Stock for such issuance as such
registered shares then, notwithstanding anything contained herein to the
contrary and in addition to and not in lieu of any of the other rights and
remedies to which the Warrant Holder may be entitled by reason of the
Company's failure fully to meet its obligations under Paragraphs 4(a) and
4(d) hereof, the Warrant Holder may, at its election exercised in its sole
discretion, exercise this Warrant in whole or in part
and, in lieu of making the cash payment otherwise contemplated to be made to
the Company upon such exercise in payment of the Purchase Price, elect
instead to receive upon such exercise the Net Number of shares of Common
Stock determined according to the following formula:
Net Number = (A x B) - (A x C)
-------------------
B
For purposes of the foregoing formula:
A = the total number of shares with respect to which this
Warrant is then being exercised.
B = the fair market value of a share of Common Stock at the
time of such calculation, as determined in accordance
with Paragraph 3(b) hereof.
C = the Purchase Price then in effect at the time of such
exercise.
3. DELIVERY OF STOCK CERTIFICATES.
(a) Subject to the terms and conditions of this Warrant, as soon
as practicable after the exercise of this Warrant in full or in part, and in
any event within five (5) days thereafter, the Company at its expense
(including, without limitation, the payment by it of any applicable issue
taxes) will cause to be issued in the name of and delivered to Warrant
Holder, or as Warrant Holder (upon payment by Warrant Holder of any
applicable transfer taxes) may lawfully direct, a certificate or certificates
for the number of fully paid and non-assessable shares of Common Stock to
which Warrant Holder shall be entitled on such exercise, together with any
other stock or other securities or property (including cash, where
applicable) to which Warrant Holder is entitled upon such exercise.
(b) This Warrant may not be exercised as to fractional shares of
Common Stock. In the event that the exercise of this Warrant, in full or in
part, would result in the issuance of any fractional share of Common Stock,
then in such event Warrant Holder shall be entitled to cash equal to the fair
market value of such fractional share. For purposes of this Warrant, fair
market value shall equal the closing trading price of the Common Stock on the
Nasdaq Stock Market, the American Stock Exchange or the New York Stock
Exchange, whichever is the principal trading exchange or market for the
Common Stock (the "Principal Market") on the date of determination or, if the
Common Stock is not listed or admitted to trading on any national securities
exchange or quoted in the Nasdaq Stock Market, the average of the closing bid
and asked prices on the over-the-counter market as furnished by any New York
Stock Exchange member firm reasonably selected from time to time by the
Company for that purpose, or, if the Common Stock is not listed or admitted
to trading on any national securities exchange or quoted on the Nasdaq Stock
Market or traded over-the-counter and the average price cannot be determined
a contemplated above, the fair market value of the Common Stock shall be as
reasonably determined in good faith by the Company's Board of Directors.
4. COVENANTS OF THE COMPANY.
(a) The Company shall use its reasonable best efforts to insure
that a Registration Statement under the Act covering the issuance of the
Warrant Shares and the resale or other disposition thereof by Warrant Holder
is effective as provided in its Registration Rights Agreement.
(b) The Company shall take all necessary action and proceedings as
may be required and permitted by applicable law, rule and regulation,
including, without limitation the notification of the Nasdaq Stock Market,
for the legal and valid issuance of this Warrant and the Warrant Shares to
the Warrant Holder under this Warrant.
-2-
(c) From the date hereof through the last date on which this
Warrant is exercisable, the Company shall take all steps reasonably necessary
and within its control to insure that the Common Stock remains listed on the
Principal Market and shall not amend its Certificate of Incorporation or
Bylaws so as to adversely affect any rights of the Warrant Holder under this
Warrant.
(d) The Company shall at all times reserve and keep available,
solely for issuance and delivery as Warrant Shares hereunder, such shares of
Common Stock as shall from time to time be issuable.
(e) The Warrant Shares, when issued in accordance with the terms
hereof, will be duly authorized and, when paid for or issued in accordance
with the terms hereof, shall be validly issued, fully paid and
non-assessable. The Company has authorized and reserved for issuance to
Warrant Holder the requisite number of shares of Common Stock to be issued
pursuant to this Warrant.
(f) With a view to making available to Warrant Holder the benefits of
Rule 144 promulgated under the Act and any other rule or regulation of the
SEC that may at any time permit Warrant Holder to sell securities of the
Company to the public without registration, the Company agrees to use its
reasonable best efforts to:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
(ii) file with the SEC in a timely manner all reports and other documents
required of the Company under the Act and the Exchange Act; and
(iii) furnish to any Warrant Holder forthwith upon request a written
statement by the Company that it has complied with the reporting requirements
of Rule 144 and of the Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed by the Company as may be reasonably requested to permit
any such Warrant Holder to take advantage of any rule or regulation of the
SEC permitting the selling of any such securities without registration.
5. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number of
and kind of securities purchasable upon exercise of this Warrant and the
Purchase Price shall be subject to adjustment from time to time as follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the
Company shall at any time after the date hereof but prior to the expiration
of this Warrant subdivide its outstanding securities as to which purchase
rights under this Warrant exist, by split-up, spin-off, or otherwise, or
combine its outstanding securities as to which purchase rights under this
Warrant exist, the number of Warrant Shares as to which this Warrant is
exercisable as of the date of such subdivision, split-up, spin-off or
combination shall forthwith be proportionately increased in the case of a
subdivision, or proportionately decreased in the case of a combination.
Appropriate adjustments shall also be made to the purchase price payable per
share, but the aggregate purchase price payable for the total number of
Warrant Shares purchasable under this Warrant as of such date shall remain
the same.
(b) STOCK DIVIDEND. If at any time after the date hereof the
Company declares a dividend or other distribution on Common Stock payable in
Common Stock or other securities or rights convertible into Common Stock
("Common Stock Equivalents") without payment of any consideration by holders
of Common Stock for the additional shares of Common Stock or the Common Stock
Equivalents (including the additional shares of Common Stock issuable upon
exercise or conversion thereof), then the number of shares of Common Stock
for which this Warrant may be exercised shall be increased as of the record
date (or the date of such dividend distribution if no record date is set) for
determining which holders of Common Stock shall be entitled to receive such
dividends, in proportion to the increase in the number of outstanding shares
(and shares of Common Stock issuable upon conversion of all such securities
convertible into Common Stock) of Common Stock as a result of such dividend,
and the Purchase Price shall be adjusted
-3-
so that the aggregate amount payable for the purchase of all the Warrant
Shares issuable hereunder immediately after the record date (or on the date
of such distribution, if applicable), for such dividend shall equal the
aggregate amount so payable immediately before such record date (or on the
date of such distribution, if applicable).
(c) OTHER DISTRIBUTIONS. If at any time after the date hereof the
Company distributes to holders of its Common Stock, other than as part of its
dissolution, liquidation or the winding up of its affairs, any shares of its
capital stock, any evidence of indebtedness or any of its assets (other than
cash, Common Stock or securities convertible into Common Stock), then the
Company shall decrease the per share Purchase Price of this Warrant by an
appropriate amount based upon the value distributed on each share of Common
Stock as determined in good faith by the Company's Board of Directors.
(d) MERGER, ETC. If at any time after the date hereof there
shall be a merger or consolidation of the Company with or into or a transfer
of all or substantially all of the assets of the Company to another entity,
then the Warrant Holder shall be entitled to receive upon such transfer,
merger or consolidation becoming effective, and upon payment of the aggregate
Purchase Price then in effect, the number of shares or other securities or
property of the Company or of the successor corporation resulting from such
merger or consolidation, which would have been received by Warrant Holder for
the shares of stock subject to this Warrant had this Warrant been exercised
just prior to such transfer, merger or consolidation becoming effective or to
the applicable record date thereof, as the case may be.
(e) RECLASSIFICATION, ETC. If at any time after the date hereof
there shall be a reorganization or reclassification of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, then the Warrant Holder
shall thereafter be entitled to receive upon exercise of this Warrant, during
the period specified herein and upon payment of the Purchase Price then in
effect, the number of shares or other securities or property resulting from
such reorganization or reclassification, which would have been received by
the Warrant Holder for the shares of stock subject to this Warrant had this
Warrant at such time been exercised.
(f) PURCHASE PRICE ADJUSTMENT. In the event that the Company
issues or sells any Common Stock or securities which are convertible into or
exchangeable for its Common Stock or any convertible securities, or any
warrants or other rights to subscribe for or to purchase or any options for
the purchase of its Common Stock or any such convertible securities (other
than shares or options issued or which may be issued pursuant to the
Company's employee or director option plans or shares issued upon exercise of
options, warrants or rights outstanding on the date of the Agreement and
listed in the Exchange Act Reports) at an effective purchase price per share
which is less than the Purchase Price then in effect or the fair market value
(as hereinabove defined) of the Common Stock on the trading day next
preceding such issue or sale, then in each such case, the Purchase Price in
effect immediately prior to such issue or sale shall be reduced effective
concurrently with such issue or sale to an amount determined by multiplying
the Purchase Price then in effect by a fraction, (x) the numerator of which
shall be the sum of (1) the number of shares of Common Stock outstanding
immediately prior to such issue or sale, including, without duplication,
those deemed to have been issued under any provision of the Debentures and
the Warrants plus (2) the number of shares of Common Stock which the
aggregate consideration received by the Company for such additional shares
would purchase at such fair market value or Purchase Price, as the case may
be, then in effect; and (y) the denominator of which shall be the number of
shares of Common Stock of the Company outstanding immediately after such
issue or sale including, without duplication, those deemed to have been
issued under any provision of the Debentures and Warrants. For purposes of
the foregoing fraction, Common Stock outstanding shall include, without
limitation, any Equity Offerings (as defined in the Debentures) then
outstanding, whether or not they are exercisable or convertible when such
fraction is to be determined.
In the event of any such issuance for a consideration which is less than
such fair market value and also less than the Purchase Price then in effect,
then there shall be only one such adjustment by reason of such issuance, such
adjustment to be that which results in the greatest reduction of the Purchase
Price computed as aforesaid. The number of shares which may be purchased
hereunder shall be increased proportionately to any reduction in Purchase Price
-4-
pursuant to this paragraph 5(f), so that after such adjustments the aggregate
Purchase Price payable hereunder for the increased number of shares shall be
the same as the aggregate Purchase Price in effect just prior to such
adjustments.
6. NO 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 this Warrant, 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 Warrant Holder against impairment. Without limiting the
generality of the foregoing, the Company (a) will not increase the par value
of any Warrant Shares above the amount payable therefor on such exercise, and
(b) will take all such action as may be reasonably necessary or appropriate
in order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares on the exercise of this Warrant.
7. NOTICE OF ADJUSTMENTS; NOTICES. Whenever the Purchase Price or
number of Shares purchasable hereunder shall be adjusted pursuant to Section
5 hereof, the Company shall execute and deliver to the Warrant Holder a
certificate setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated and the Purchase Price and number of shares purchasable
hereunder after giving effect to such adjustment, and shall cause a copy of
such certificate to be mailed (by first class mail, postage prepaid) to the
Warrant Holder.
8. RIGHTS AS STOCKHOLDER. Prior to exercise of this Warrant, the
Warrant Holder shall not be entitled to any rights as a stockholder of the
Company with respect to the Warrant Shares, including (without limitation)
the right to vote such shares, receive dividends or other distributions
thereon or be notified of stockholder meetings. However, in the event of 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 (other than a cash dividend) or other distribution, 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,
the Company shall mail to each Warrant Holder, at least 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, distribution or right, and
the amount and character of such dividend, distribution or right.
9. REPLACEMENT OF WARRANT. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
the Warrant and, in the case of any such loss, theft or destruction of the
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.
10. SPECIFIC ENFORCEMENT; CONSENT TO JURISDICTION.
(a) The Company and the Warrant Holder acknowledge and agree
that irreparable damage would occur in the event that any of the provisions
of this Warrant were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Warrant and to enforce specifically the terms and
provisions hereof, this being in addition to any other remedy to which either
of them may be entitled by law or equity.
(b) Each of the Company and the Warrant Holder (i) hereby
irrevocably submits to the exclusive jurisdiction of the United States
District Court for the Southern District of New York for the purposes of any
suit, action or proceeding arising out of or relating to this Warrant and
(ii) hereby waives, and agrees not to assert in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. Each of the Company and the Warrant Holder consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address in effect for notices to it under this Warrant
and agrees that such
-5-
service shall constitute good and sufficient service of process and notice
thereof. Nothing in this paragraph shall affect or limit any right to serve
process in any other manner permitted by law.
11. ENTIRE AGREEMENT; AMENDMENTS. This Warrant, the Exhibits hereto
and the provisions contained in the Agreement, the Registration Rights
Agreement or the Debentures and incorporated into this Warrant and the
Warrant Shares contain the entire understanding of the parties with respect
to the matters covered hereby and thereby and, except as specifically set
forth herein and therein, neither the Company nor the Warrant Holder makes
any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than
by a written instrument signed by the party against whom enforcement of any
such amendment or waiver is sought.
12. RESTRICTED SECURITIES. Sections 4.5, 5.1, 5.2 and 5.3 of the
Agreement are incorporated herein by reference and hereby made a part hereof.
13. NOTICES. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be effective (a) upon
hand delivery or delivery by telex (with correct answer back received),
telecopy or facsimile at the address or number designated below (if delivered
on a business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice
is to be received) or (b) on the second business day following the date of
mailing by express courier service, fully prepaid, addressed to such address,
or upon actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be:
-6-
to the Company:
Zycad Corporation
00000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn:
Fax: (000) 000-0000
with copies to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn:
Fax:
to the Warrant Holder:
Capital Ventures International
0 Xxxxxxx Xxxxx
X.X. Xxx 0000XX
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
Attn:
Fax:
with copies to:
Attn:
Fax:
Copies of all notices to the Company or to the Warrant Holder shall also be
provided to:
Promethean Investment Group, L.L.C.
00 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx X. X'Xxxxx, Xx.
Fax: (000) 000-0000
GOULSTON & STORRS
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
-7-
Either party hereto may from time to time change its address for notices
under this Section 13 by giving at least 10 days prior written notice of such
changed address to the other party hereto.
14. 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 State of New York. The
headings in this Warrant are for purposes of reference only, and shall not
limit or otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity
or enforceability of any other provision.
15. EXPIRATION. The right to exercise this Warrant shall expire
thirty-six (36) months after the date hereof.
[Signatures on next page.]
Dated as of: August 21, 1997 ZYCAD CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
Title: President and CEO
[CORPORATE SEAL]
Attest:
By: /s/ Xxxxxxx X. Xxxxx
Its: Vice President, Secretary
and General Counsel
Capital Ventures International by
Heights Capital Management as agent
By: /s/ Xxxxxx Xxxxx
Its: President
-8-
FORM OF WARRANT EXERCISE
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO _________________________
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 ZYCAD CORPORATION, a Delaware corporation (the
"Company"), and herewith makes payment of $__________ therefor, and requests
that the certificates for such shares be issued in the name of, and delivered
to _________________, whose address is __________________.
Dated: ___________________________________
(Signature must conform to name of holder as specified on the face of
the Warrant)
___________________________________
(Address)
Tax Identification Number:_____________
---------------------
FORM OF ASSIGNMENT
(TO BE SIGNED ONLY ON TRANSFER OF WARRANT)
For value received, the undersigned hereby sells, assigns, and transfers unto
_________________ the right represented by the within Warrant to purchase
_____________ shares of Common stock of ZYCAD CORPORATION, a Delaware
corporation, to which the within Warrant relates, and appoints
_________________ Attorney to transfer such right on the books of ZYCAD
CORPORATION, a Delaware corporation, with full power of substitution the
premises.
Dated: ___________________________________
(Signature must conform to name of holder as specified on the face of
the Warrant)
___________________________________
(Address)
Signed in the presence of:
____________________________
-9-
