EXHIBIT 10.29
DESIGN AUTOMATION SYSTEMS, INC.
COMMON STOCK
WARRANT PURCHASE AGREEMENT
COMMON STOCK WARRANT PURCHASE AGREEMENT (this "Agreement") dated as of December
29, 1999 (the "Closing Date") by and between Design Automation Systems, Inc., a
Texas corporation (the "Company") and FINOVA Capital Corporation ("FINOVA").
RECITALS
1. Simultaneously with the execution and delivery of this
Agreement (the "Closing"), the Company and FINOVA are entering into that certain
Amended Credit Agreement dated as or around December 29, 1999 (the "Credit
Agreement") pursuant to which FINOVA is making available to the Company certain
credit facilities.
2. As an inducement to FINOVA to enter into the Credit
Agreement, the Company proposes to issue warrants to purchase the Company's
Common Stock in an aggregate amount equal to 25,000 shares of the Company's
Common Stock.
NOW, THEREFORE, in consideration of the foregoing, the Company and FINOVA,
intending to be legally bound, agree as follows:
ARTICLE 1
DEFINITIONS
DEFINITIONS. AS USED HEREIN, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANINGS (SUCH MEANINGS TO BE EQUALLY APPLICABLE TO BOTH
THE SINGULAR AND PLURAL FORMS OF THE TERMS DEFINED):
"Accounts" has the meaning ascribed to that term in the
Uniform Commercial Code.
"Affiliate" means, as to any Person, any Subsidiary of such
Person and any other person which, directly or indirectly, controls, is
controlled by or is under common control with such Person and includes each
officer or director or general partner of such Person, and each Person who is
the beneficial owner of 5% or more of any class of voting stock of such Person.
For the purposes of this definition, "control" means the possession of the power
to direct or cause the direction of management and policies of such Person,
whether through the ownership of voting securities, by contract, or otherwise.
"Agreement" means this Warrant Agreement as from time to time
amended and in effect between the parties.
"Business Day" means any day other than a Saturday, Sunday or
public holiday or the equivalent for banks under the laws of the State of Texas.
"Change in Control" means any transaction or any event as a
result of which any one or more persons (other than FINOVA or any of its
Affiliates) acquires or for the first time controls or is able to vote (directly
or through nominees or beneficial ownership) after the Closing Date (other than
as the direct result of a transfer by descent of distribution of a decedent's
estate) fifty percent (50%) or more of any class of stock of the Company
outstanding at the time having power ordinarily to vote for the directors of the
Company.
"Common Stock" means the Company's Common Stock, $.001 par value
per share, as authorized on the date of this Agreement.
"Company" means and shall include Design Automation Systems,
Inc., a Texas corporation, and its successors and assigns.
"Credit Agreement" means that certain Amended Credit Agreement
dated of even date herewith between the Company and FINOVA.
"Event of Force Majeure" shall mean a declaration by Federal
authorities of a banking moratorium, a suspension of trading by a national
securities exchange, a declaration of war or any new outbreak of hostilities or
other national calamity or crisis, the effect of which on the financial markets
of the United States shall make it commercially impracticable to comply with an
obligation hereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Holder" means FINOVA, its successors and assigns, and all
transferees (in whole or in part) of the Warrants.
"Person" means, an individual, a corporation (including, without
limitation, a business trust), a partnership, a joint stock company, a joint
venture or other entity, a trust, an unincorporated association, a government
and any agency or political subdivision thereof.
"Registration Rights Agreement" shall have the meaning assigned
to that term in Section 3.2.
"Securities" means collectively the Warrants and the Warrant
Shares. "Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Stock" means shares of capital stock, beneficial or partnership
interest, participations or other equivalents (regardless of how designated) of
or in a corporation or equivalent entity, whether voting or non-voting and,
includes, without limitation, common stock and preferred stock.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any stock, whether or not presently convertible, exchangeable or
exercisable.
"Subsidiary" or "Subsidiaries" means (i) any corporation more
than fifty percent (50%) of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by the Company and/or one
or more Subsidiaries of the Company, (ii) any partnership, association, joint
venture or other entity in which the Company and/or one or more Subsidiaries of
the Company has more than a fifty percent (50%) equity interest at the time.
"Warrant Documents" shall mean this Agreement and the Warrant,
between the Company and FINOVA of even date herewith and the Registration Rights
Agreement.
"Warrant Shares" shall have the meaning assigned to that term in
Section 2.1.
"Warrants" shall have the meaning assigned to that term in
Section 2.1.
ACCOUNTING TERMS. ALL ACCOUNTING TERMS NOT SPECIFICALLY DEFINED HEREIN SHALL BE
CONSTRUED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES CONSISTENT
WITH THOSE APPLIED IN PREPARATION OF THE FINANCIAL STATEMENTS, AND ALL FINANCIAL
DATA SUBMITTED PURSUANT TO THIS AGREEMENT AND ALL FINANCIAL TESTS TO BE
CALCULATED IN ACCORDANCE WITH THIS AGREEMENT SHALL BE PREPARED AND CALCULATED IN
ACCORDANCE WITH SUCH PRINCIPLES.
ARTICLE 2
PURCHASE, SALE AND TERMS OF WARRANTS;
OBLIGATION TO REPURCHASE
THE WARRANTS. THE COMPANY HAS AUTHORIZED THE ISSUANCE AND SALE OF THE COMPANY'S
COMMON STOCK PURCHASE WARRANTS TO FINOVA FOR THE PURCHASE (SUBJECT TO ADJUSTMENT
AS PROVIDED THEREIN) OF 25,000 SHARES OF THE COMPANY'S COMMON STOCK. THE COMMON
STOCK PURCHASE WARRANTS SHALL BE SUBSTANTIALLY IN THE FORM SET FORTH AS EXHIBIT
2.1 ATTACHED HERETO AND ARE HEREIN REFERRED TO INDIVIDUALLY AS A "WARRANT" AND
COLLECTIVELY AS THE "WARRANTS", WHICH TERMS SHALL ALSO INCLUDE ANY WARRANTS
DELIVERED IN EXCHANGE OR REPLACEMENT THEREOF. THE NUMBER OF WARRANT SHARES IS
SUBJECT TO ADJUSTMENT AS SET FORTH IN THE WARRANTS. THE WARRANTS SHALL BE
EXERCISABLE AT AN EXERCISE PRICE OF $11.70 PER SHARE (THE "EXERCISE PRICE"), AND
SHALL EXPIRE AT 5:00 P.M., EASTERN TIME, ON DECEMBER 29, 2004.
PURCHASE AND SALE OF WARRANTS; RESERVATION OF SHARES.
(a) For value received, the Company agrees to issue and sell
to FINOVA, and, subject to and in reliance upon the representations, warranties,
terms and conditions of this Agreement, FINOVA agrees to purchase Warrants to
acquire the Warrant Shares. Such purchase and sale shall take place at the
Closing and at the Closing the Company will initially issue to FINOVA one
Warrant to purchase (subject to adjustment as provided therein) the Warrant
Shares.
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(b) The Company has authorized, and has reserved and covenants
to continue to reserve, free of preemptive rights and other preferential rights,
a sufficient number of its previously authorized but unissued shares of Common
Stock to satisfy the rights of exercise of the Warrants. The Company covenants
and agrees that all shares of Common Stock which may be issued upon the exercise
of the rights represented by the Warrants shall, upon issuance, be fully paid
and non-assessable and free from all taxes, liens and charges with respect to
issuance. If the Exercise Price is at any time less than the par value of the
Common Stock or if the Warrants at any time are exercisable by delivery alone
and without payment of any additional consideration, the Company also covenants
and agrees to cause to be taken such action (whether by lowering the par value
of the Common Stock, the conversion of the Common Stock from par value to no par
value, or otherwise) as will permit the exercise of the Warrants without any
additional payment by the Holder thereof (other than payment of the Exercise
Price, if any, and applicable transfer taxes, if any), and the issuance of the
Common Stock, which Common Stock, upon issuance, will be fully paid and
non-assessable.
ARTICLE 3
CONDITIONS TO PURCHASERS' OBLIGATIONS
The obligations of FINOVA to purchase the Warrants at the Closing is subject to
the following conditions, all or any of which may be waived in writing by
FINOVA:
REPRESENTATIONS AND WARRANTIES. EACH OF THE REPRESENTATIONS AND WARRANTIES OF
THE COMPANY SET FORTH IN ARTICLE 4 HEREOF SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS AT THE TIME OF THE SALE OF THE WARRANTS.
DELIVERY AT CLOSING. FINOVA SHALL HAVE RECEIVED PRIOR TO
OR AT THE CLOSING ALL OF THE FOLLOWING EACH IN
FORM AND SUBSTANCE SATISFACTORY TO FINOVA AND
ITS COUNSEL:
(a) A certified copy of all charter documents of the Company;
a certified copy of the resolutions of the board of directors and, to the extent
required, the stockholders of the Company evidencing approval, as applicable, of
this Agreement, the Warrant Documents and other matters contemplated hereby and
thereby; a certified copy of the By-laws of the Company ; and certified copies
of all documents evidencing other necessary corporate or other action and
governmental approvals, if any, with respect to this Agreement, the Warrant
Documents and other matters contemplated hereby or thereby.
(b) A certificate of the Secretary or an Assistant Secretary
of the Company which shall certify the names of the officers of the Company
authorized to sign, as applicable, this Agreement, the Warrant Documents and any
other documents or certificates to be delivered pursuant hereto or thereby by
the Company, as applicable, or any of their respective officers, together with
the true signatures of such officers. FINOVA may conclusively rely on such
certificates until they shall receive a further certificate of the Secretary or
an Assistant Secretary of the Company, as applicable, canceling or amending the
prior certificate and submitting the signatures of the officers named in such
further certificate.
(c) A Registration Rights Agreement (the "Registration
Rights Agreement") executed by the Company substantially in the form of Exhibit
3.2(c) attached hereto.
(d) A certificate from a duly authorized officer of the
Company stating that all conditions set forth in this Article 3 have been
satisfied.
(e) Such other documents referenced in any Exhibit hereto or
relating to the transactions contemplated by this Agreement as FINOVA or its
counsel may reasonably request.
INCURRENCE OF DEBT. THE COMPANY SHALL HAVE ENTERED INTO THE CREDIT AGREEMENT
WITH THE FINOVA ON TERMS SATISFACTORY TO THE COMPANY AND SHALL HAVE CLOSED OR
SHALL CLOSE SIMULTANEOUSLY THE TRANSACTIONS CONTEMPLATED THEREBY AND RECEIVED OR
SHALL SIMULTANEOUSLY RECEIVE THE FUNDS WITH RESPECT THERETO. COPIES OF ALL
DOCUMENTS DELIVERED TO FINOVA IN CONJUNCTION WITH THE CLOSING OF THE
TRANSACTIONS CONTEMPLATED BY THE CREDIT AGREEMENT SHALL HAVE BEEN DELIVERED TO
FINOVA OR ITS COUNSEL.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF FINOVA
REPRESENTATIONS AND WARRANTIES OF FINOVA. FINOVA HEREBY
REPRESENTS AND WARRANTS THAT:
(a) It has duly authorized, executed and delivered this Agreement
and such of the Operative Documents as require execution by it.
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(b) Its present intention is to acquire the Securities for its
own account.
(c) The Securities are being and will be acquired for the purpose
of investment and not with a view to distribution or resale thereof; subject,
nevertheless, to the condition that, except as otherwise provided herein, the
disposition of its property shall at all times be within its control.
(d) It acknowledges that it has reviewed and discussed the
Company's business, affairs and current prospects with such officers of the
Company and others as it has deemed appropriate or desirable in connection with
the transactions contemplated by this Agreement. It further acknowledges that it
has requested, received and reviewed such information, undertaking such
investigation and made such further inquiries of officers of the Company and
others as it has deemed appropriate or desirable in connection with such
transactions; provided, however, no investigation made heretofore or hereafter
by or on its behalf shall have any effect whatsoever on the representations and
warranties of the Company hereunder, each of which shall survive any such
investigation.
(e) It understands that it must bear the economic risk of its
investment for an indefinite period of time because the Securities are not, and
will not be, registered under the Securities Act or any applicable state
securities laws, except as may be provided in the Registration Rights Agreement,
and may not be resold unless subsequently registered under the Securities Act
and such other laws or unless an exemption from such registration is available.
(f) It has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of its
investment in the Securities. It further represents that it is an "accredited
investor" as such term is defined in Rule 501 of Regulation D of the Commission
under the Securities Act with respect to the purchase of the Securities.
(g) It hereby acknowledges that the Warrants and each certificate
representing the Warrant Shares and any other securities issued in respect of
such shares upon any stock split, stock dividend, recapitalization, merger or
similar event (unless no longer required in the opinion of counsel, which
opinion and counsel shall be reasonably satisfactory to the Company) shall bear
a legend substantially in the following form:
THIS SECURITY 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 acquisition by FINOVA of the Securities shall constitute a
confirmation by it of the foregoing representations made by it.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants as follows:
SECURITIES ACT. NEITHER THE COMPANY NOR ANYONE ACTING ON ITS BEHALF HAS OFFERED
ANY OF THE WARRANTS, OR SOLICITED ANY OFFERS TO PURCHASE OR MADE ANY ATTEMPT BY
PRELIMINARY CONVERSATION OR NEGOTIATIONS TO DISPOSE OF THE WARRANTS, WITHIN THE
MEANING OF ALL APPLICABLE FEDERAL AND STATE SECURITIES LAWS, TO ANY PERSON OTHER
THAN FINOVA, AND NO PERSON OTHER THAN FINOVA WILL PURCHASE ANY WARRANTS EXCEPT
WITH THE PRIOR CONSENT OF FINOVA. NEITHER THE COMPANY NOR ANYONE ACTING ON ITS
BEHALF HAS OFFERED OR WILL OFFER TO SELL THE WARRANTS TO, OR SOLICIT OFFERS WITH
RESPECT THERETO FROM, OR ENTER INTO ANY PRELIMINARY CONVERSATIONS OR
NEGOTIATIONS RELATING THERETO WITH, ANY PERSON SO AS TO BRING THE ISSUANCE AND
SALE OF THE WARRANTS UNDER THE REGISTRATION PROVISIONS OF THE SECURITIES ACT.
OTHER AGREEMENTS OF OFFICERS. TO THE BEST KNOWLEDGE OF THE COMPANY, NO OFFICER
OR KEY EMPLOYEE OF THE COMPANY IS A PARTY TO OR BOUND BY ANY AGREEMENT, CONTRACT
OR COMMITMENT, OR SUBJECT TO ANY RESTRICTIONS, PARTICULARLY BUT WITHOUT
LIMITATION IN CONNECTION WITH ANY PREVIOUS EMPLOYMENT OF ANY SUCH PERSON, WHICH
HAS A MATERIAL ADVERSE EFFECT, OR IN THE FUTURE MAY (SO FAR AS THE COMPANY CAN
REASONABLY FORESEE) HAVE A MATERIAL ADVERSE EFFECT
FOREIGN CORRUPT PRACTICES ACT. THE COMPANY HAS REVIEWED ITS PRACTICES AND
POLICIES AND TO THE BEST OF ITS KNOWLEDGE AND BELIEF IS NOT ENGAGED, NOR HAS ANY
OF ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS ENGAGED IN ANY ACT OR
PRACTICE WHICH WOULD CONSTITUTE A VIOLATION OF THE FOREIGN CORRUPT PRACTICES ACT
OF 1977, OR ANY RULES OR REGULATIONS PROMULGATED THEREUNDER.
REPRESENTATIONS AND WARRANTIES INCORPORATED FROM CREDIT AGREEMENT. EACH OF THE
REPRESENTATIONS AND WARRANTIES GIVEN BY THE COMPANY TO FINOVA IN THE CREDIT
AGREEMENT IS TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE CLOSING DATE
AND SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY INCORPORATED HEREIN BY THIS
REFERENCE AS OF SUCH DATE WITH THE SAME EFFECT AS THOUGH SET FORTH HEREIN IN
THEIR ENTIRETY AND MADE BY THE COMPANY TO FINOVA HEREUNDER.
ARTICLE 6
DISCLOSURES TO HOLDERS
This information is available via XXXXX.
ARTICLE 7
MISCELLANEOUS
NO WAIVER; CUMULATIVE REMEDIES. NO FAILURE OR DELAY ON THE PART OF FINOVA IN
EXERCISING ANY RIGHT, POWER OR REMEDY HEREUNDER SHALL OPERATE AS A WAIVER
THEREOF; NOR SHALL ANY SINGLE OR PARTIAL EXERCISE OF ANY SUCH RIGHT, POWER OR
REMEDY PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY
OTHER RIGHT, POWER OR REMEDY HEREUNDER. THE REMEDIES HEREIN PROVIDED ARE
CUMULATIVE AND NOT EXCLUSIVE OF ANY REMEDIES PROVIDED BY LAW.
AMENDMENTS, WAIVERS AND CONSENTS. ANY PROVISION IN THIS AGREEMENT OR THE
WARRANTS TO THE CONTRARY NOTWITHSTANDING, CHANGES IN OR ADDITIONS TO THIS
AGREEMENT MAY BE MADE, AND COMPLIANCE WITH ANY COVENANT OR PROVISION HEREIN OR
THEREIN SET FORTH MAY BE OMITTED OR WAIVED, IF THE COMPANY SHALL OBTAIN CONSENT
THERETO IN WRITING FROM FINOVA.
ADDRESSES FOR NOTICES, ETC. ALL NOTICES, REQUESTS, DEMANDS AND OTHER
COMMUNICATIONS PROVIDED FOR HEREUNDER SHALL BE IN WRITING AND MAILED (BY FIRST
CLASS REGISTERED OR CERTIFIED, POSTAGE PREPAID), TELEGRAPHED, SENT BY EXPRESS
OVERNIGHT COURIER SERVICE OR ELECTRONIC FACSIMILE TRANSMISSION (WITH A COPY BY
MAIL), OR DELIVERED TO THE APPLICABLE PARTY AT THE ADDRESSES INDICATED BELOW:
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If to the Company:
Design Automation Systems, Inc.
0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile:000-000-0000
Attention: President
With copies to:
Xxxxxx & Xxxxxxxxx, P.C.
Three Riverway, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxxxx "Xxxxx" X. Xxxxxxxxxx
If to FINOVA:
______________________________
______________________________
______________________________
______________________________
Facsimile: ___________________
Attention: ___________________
With a copy to:
______________________________
______________________________
______________________________
Facsimile: ___________________
Attention: ___________________
or, as to each of the foregoing, at such other address as shall be designed by
such Person in a written notice to the other party complying as to delivery with
the terms of this Section. All such notices, requests, demands and other
communications shall, when mailed, telegraphed or sent, respectively, be
effective (i) two days after being deposited in the mails or (ii) one day after
being delivered to the telegraph company, deposited with the express overnight
courier service or sent by electronic facsimile transmission, respectively,
addressed as aforesaid.
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COSTS, EXPENSES AND TAXES. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE COMPANY
AGREES TO PAY ON DEMAND ALL REASONABLE COSTS AND EXPENSES OF FINOVA IN
CONNECTION WITH THE PREPARATION, EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
WARRANTS AND OTHER WARRANT DOCUMENTS AND OTHER INSTRUMENTS AND DOCUMENTS TO BE
DELIVERED HEREUNDER, AND IN CONNECTION WITH THE CONSUMMATION OF THE TRANSACTION
CONTEMPLATED HEREBY AND THEREBY, AND IN CONNECTION WITH ANY AMENDMENT, WAIVER
(WHETHER OR NOT SUCH AMENDMENT OR WAIVER BECOMES EFFECTIVE) OR ENFORCEMENT OF
THIS AGREEMENT, THE WARRANTS, THE OTHER WARRANT DOCUMENTS, AND OTHER INSTRUMENTS
AND DOCUMENTS TO BE DELIVERED HEREUNDER OR THEREUNDER. IN ADDITION, THE COMPANY
AGREES TO PAY ANY AND ALL STAMP AND OTHER TAXES (EXCLUDING INCOME TAXES) PAYABLE
OR DETERMINED TO BE PAYABLE IN CONNECTION WITH THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, THE WARRANTS, THE OTHER WARRANT DOCUMENTS, AND THE OTHER
INSTRUMENTS AND DOCUMENTS TO BE DELIVERED HEREUNDER OR THEREUNDER AND EACH
AGREES JOINTLY AND SEVERALLY TO SAVE FINOVA HARMLESS FROM AND AGAINST ANY AND
ALL LIABILITIES WITH RESPECT TO OR RESULTING FROM ANY DELAY IN PAYING OR
OMISSION TO PAY SUCH TAXES AND FILING FEES.
BINDING EFFECT; ASSIGNMENT. THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO
THE BENEFIT OF THE COMPANY, AND ITS RESPECTIVE SUCCESSORS AND ASSIGNS, EXCEPT
THAT THE COMPANY SHALL NOT HAVE THE RIGHT TO ASSIGN ITS RIGHTS HEREUNDER OR ANY
INTEREST THEREIN WITHOUT THE PRIOR WRITTEN CONSENT OF FINOVA.
PROVISIONS OF CREDIT AGREEMENT. WHENEVER ANY PROVISION OF THE CREDIT AGREEMENT
IS REFERRED TO HEREIN OR IN ANY INSTRUMENT FURNISHED HEREUNDER AS EXPRESSING OR
CONSTITUTING AN OBLIGATION, CONDITION OR LIMITATION OF THIS AGREEMENT OR OF SUCH
INSTRUMENT OR AS EXPRESSING OR CONSTITUTING A REPRESENTATION HEREIN OR THEREIN
(A) SUCH PROVISION SHALL BE DEEMED INCORPORATED HEREIN OR THEREIN AT LENGTH, AND
(B) EXCEPT AS OTHERWISE PROVIDED HEREIN OR IN SUCH INSTRUMENT, THE TERMS USED IN
SUCH PROVISION REFERRED TO SHALL HAVE THE MEANINGS SET FORTH IN THE CREDIT
AGREEMENT. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, AND EXCEPT FOR
AMENDMENTS OR MODIFICATIONS TO WHICH FINOVA CONSENTS IN WRITING, NO MODIFICATION
OF OR AMENDMENT TO, OR WAIVER OF, ANY PROVISIONS OF THE CREDIT AGREEMENT AND NO
PAYMENT OF THE INDEBTEDNESS OUTSTANDING THEREUNDER OR SATISFACTION OR
CANCELLATION THEREOF, SHALL MODIFY, AMEND, WAIVE OR OTHERWISE AFFECT ANY
PROVISION THEREOF AS REFERRED TO IN THIS AGREEMENT OR IN ANY INSTRUMENT
FURNISHED HEREUNDER, WHICH PROVISION, FOR THE PURPOSE OF THIS AGREEMENT AND SUCH
INSTRUMENT, SHALL REMAIN UNMODIFIED AND IN FULL FORCE AND EFFECT.
INDEMNIFICATION. THE COMPANY AGREES TO INDEMNIFY AND HOLD HARMLESS FINOVA, ITS
SUBSIDIARIES, DIRECTORS, OFFICERS, PARTNERS, COUNSEL AND EMPLOYEES, FROM AND
AGAINST ANY AND ALL LIABILITY (INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL
FEES INCURRED IN DEFENDING AGAINST ANY SUCH LIABILITY) UNDER, ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE WARRANTS AND THE WARRANT SHARES, THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR IN CONNECTION HEREWITH OR
THEREWITH, INCLUDING (TO THE MAXIMUM EXTENT PERMITTED BY LAW) ANY LIABILITY
ARISING UNDER FEDERAL OR STATE SECURITIES LAWS, EXCEPT TO THE EXTENT SUCH
LIABILITY SHALL RESULT FROM ANY ACT OR OMISSION ON THE PART OF FINOVA; PROVIDED
THAT THE COMPANY SHALL NOT BE LIABLE FOR THE REASONABLE FEES AND EXPENSES OF
MORE THAN ONE SEPARATE FIRM FOR ALL INDEMNIFIED PARTIES, UNLESS REPRESENTATION
OF ALL PARTIES BY THE SAME COUNSEL WOULD BE INAPPROPRIATE DUE TO ACTUAL OR
POTENTIAL DIFFERING INTERESTS AMONG THEM.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. ALL REPRESENTATIONS AND WARRANTIES
MADE IN THIS AGREEMENT, THE WARRANTS, THE WARRANT DOCUMENTS OR ANY OTHER
INSTRUMENT OR DOCUMENT DELIVERED IN CONNECTION HEREWITH OR THEREWITH, SHALL
SURVIVE THE EXECUTION AND DELIVERY HEREOF AND THEREOF, REGARDLESS OF ANY
INVESTIGATION MADE BY FINOVA.
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PRIOR AGREEMENTS. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE
PARTIES AND SUPERSEDES ANY PRIOR UNDERSTANDINGS OR AGREEMENTS CONCERNING THE
SUBJECT MATTER HEREOF.
SEVERABILITY. THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION HEREOF SHALL
IN NO WAY AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
GOVERNING LAW; WAIVER OF JURY TRIAL.
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE IN TEXAS,
AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF TEXAS
(WITHOUT GIVING EFFECT TO CONFLICT OF LAWS) AND THE UNITED STATES OF AMERICA.
HEADINGS. ARTICLE, SECTION AND SUBSECTION HEADINGS IN THIS AGREEMENT ARE
INCLUDED HEREIN FOR CONVENIENCE OR REFERENCE ONLY AND SHALL NOT CONSTITUTE A
PART OF THIS AGREEMENT FOR ANY OTHER PURPOSES.
SEALED INSTRUMENT. THIS AGREEMENT IS EXECUTED AS AN INSTRUMENT UNDER SEAL.
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, ALL
OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT, AND EACH
OF THE PARTIES HERETO MAY EXECUTE THIS AGREEMENT BY SIGNING ANY SUCH
COUNTERPART.
FURTHER ASSURANCES. FROM AND AFTER THE DAY OF THIS AGREEMENT, UPON THE REQUEST
OF FINOVA, THE COMPANY SHALL EXECUTE AND DELIVER SUCH INSTRUMENTS, DOCUMENTS AND
OTHER WRITINGS AS MAY BE REASONABLY NECESSARY OR DESIRABLE TO CONFIRM AND CARRY
OUT AND TO EFFECTUATE FULLY THE INTENT AND PURPOSES OF THIS AGREEMENT AND THE
WARRANTS.
IN WITNESS WHEREOF, the parties hereto have executed this Warrant Agreement or
have caused it to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
DESIGN AUTOMATION SYSTEMS, INC.
By:_____________________________
Name:___________________________
Title:__________________________
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FINOVA CAPITAL CORPORATION
By:_____________________________
Name:___________________________
Title:__________________________
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