THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER THE
ACT AND SUCH LAWS OR (1) REGISTRATION UNDER APPLICABLE STATE SECURITIES LAWS
IS NOT REQUIRED AND (2) AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS
FURNISHED TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT
IS NOT REQUIRED.
MOLDFLOW CORPORATION
WARRANT TO PURCHASE COMMON STOCK
This certifies that, for value received, Silicon Valley Bank (the "HOLDER")
is entitled to subscribe for and purchase up to Fifty Thousand (50,000)
shares (subject to adjustment from time to time pursuant to the provisions of
Section 5 hereof) of fully paid and nonassessable Common Stock of Moldflow
Corporation, a Delaware corporation (the "COMPANY"), at the Warrant Price (as
defined in Section 2 hereof), subject to the provisions and upon the terms
and conditions hereinafter set forth.
As used herein, the term "COMMON STOCK" shall mean the Company's presently
authorized Common Stock, $.01 par value per share, and any stock into or for
which such Common Stock may hereafter be converted or exchanged.
1. TERM OF WARRANT. The purchase or conversion right represented by
this warrant (hereinafter the "WARRANT") is exercisable, in whole or in part,
at any time during the period commencing on April 23, 1998 and continuing
until April 23, 2005.
2. WARRANT PRICE. The initial exercise price of this Warrant is
$3.00 per share, subject to adjustment from time to time pursuant to the
provisions of Section 5 hereof (the "WARRANT PRICE").
3. METHOD OF CONVERSION OR EXERCISE; PAYMENT; ISSUANCE OF NEW
WARRANT.
(a) EXERCISE. The purchase right represented by this Warrant may
be exercised by the holder hereof during the term of this Warrant, in whole
or in part, by the surrender of this Warrant (with the notice of exercise
form attached hereto as EXHIBIT 1 duly executed) at the principal office of
the Company and by the payment to the Company, by check or wire transfer, of
an amount equal to the then applicable Warrant Price per share multiplied by
the number of shares then being purchased. The Company agrees that the shares
so purchased shall be deemed to be issued to the holder hereof as the record
owner of such shares as of the close of business on the date on which this
Warrant shall have been surrendered and payment made for such shares as
aforesaid. In the event of any exercise of this Warrant, certificates for the
shares of stock so purchased shall be delivered to the holder hereof within
15 days thereafter and, unless this Warrant has been fully exercised or
expired, a new Warrant representing the portion of the
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shares, if any, with respect to which this Warrant shall not then have been
exercised, shall also be issued to the holder hereof within such 15 day
period.
(b) CONVERSION. The Holder may convert this Warrant (the
"CONVERSION RIGHT") during its term, in whole or in part, into the number of
shares of Common Stock of the Company calculated pursuant to the following
formula by surrendering this Warrant (with the notice of exercise form
attached hereto as EXHIBIT 1 duly executed) at the principal office of the
Company specifying the number of shares of Common Stock of the Company, the
rights to purchase which the Holder desires to convert:
X = Y (A - B)
---------
A
where: X = the number of shares of Common Stock to be
issued to the Holder;
Y = the number of shares of Common Stock
subject to this Warrant for which the
Conversion Right is being exercised;
A = the fair market value of one share of
Common Stock;
B = the Warrant Price
As used herein, the fair market value of a share of Common Stock
shall mean with respect to each share of Common Stock the closing price per
share of the Company's Common Stock on the principal national securities
exchange on which the Common Stock is then listed or admitted to trading or,
if not then listed or admitted to trading on any such exchange, on the NASDAQ
National Market System, or if not then listed or traded on any such exchange
or system, the bid price per share on NASDAQ Small-Cap Market or any other
over-the-counter market, including the OTC Bulletin Board, which reports bid,
asked and last sale prices and volume of sales, averaged over the 10 trading
days consisting of the day as of which the current fair market value of
Common Stock is being determined and the nine consecutive business days prior
to such day. If at any time such quotations are not available, the current
fair market value of a share of Common Stock shall be the highest price per
share which the Company could obtain from a willing buyer (not a current
employee or director) for shares of Common Stock sold by the Company, from
authorized but unissued shares, as determined in good faith by the Board of
Directors of the Company, unless the Company shall become subject to a
merger, acquisition or other consolidation pursuant to which the Company is
not the surviving party, in which case the current fair market value of a
share of Common Stock shall be deemed to be the value received by the holders
of the Company's Common Stock for each share of Common Stock pursuant to the
Company's acquisition. The Company agrees that the shares so converted shall
be deemed to be issued to the holder hereof as the record owner of such
shares as of the close of business on the date on which this Warrant shall
have been surrendered as aforesaid. In the event of any conversion of this
Warrant, certificates for the shares of stock so converted shall be delivered
to the holder hereof within 15 days thereafter and, unless this Warrant has
been fully converted or expired, a new Warrant representing the portion of
the shares, if any, with
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respect to which this Warrant shall not then have been converted, shall also
be issued to the holder hereof within such 15 day period.
4. STOCK FULLY PAID; RESERVATION OF SHARES. All Common Stock which
may be issued upon the exercise or conversion of this Warrant will, upon
issuance, be fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issue thereof. During the period within which the
rights represented by this Warrant may be exercised, the Company will at all
times have authorized, and reserved for the purpose of the issuance upon
exercise of the purchase rights evidenced by this Warrant, a sufficient
number of shares of its Common Stock to provide for the exercise of the
rights represented by this Warrant. The issuance of this Warrant and any
shares of Common Stock issued upon exercise or conversion thereof will not be
subject to pre-emptive rights of any holder of record of stock, or of
securities exchangeable for or convertible into stock, of the Company on the
date hereof except such rights as have been waived prior to the issuance
hereof.
5. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The kind of
securities purchasable upon the exercise or conversion of this Warrant, the
Warrant Price and the number of shares purchasable upon exercise or
conversion of this Warrant shall be subject to adjustment from time to time
upon the occurrence of certain events as follows:
(a) RECLASSIFICATION, CONSOLIDATION OR MERGER. In case of any
reclassification or change of outstanding securities of the class issuable
upon exercise or conversion of this Warrant (other than a change in par
value, or from par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination), or in case of any
consolidation or merger of the Company with or into another corporation,
other than a merger with another corporation in which the Company is a
continuing corporation and which does not result in any reclassification or
change of outstanding securities issuable upon exercise of this Warrant, or
in case of any sale of all or substantially all of the assets of the Company,
the Company shall, or shall use its best efforts to cause such successor or
purchasing corporation, as the case may be, to, execute a new Warrant,
providing that the holder of this Warrant shall have the right to exercise
such new Warrant and procure upon such exercise, in lieu of each share of
Common Stock theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money and property receivable
upon such reclassification, change, consolidation, or merger by a holder of
one share of Common Stock. Such new Warrant shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 5. The provisions of this subsection (a) shall
similarly apply to successive reclassification, changes, consolidations,
mergers and transfers.
(b) SUBDIVISION OR COMBINATION OF SHARES. If the Company at any
time while this Warrant remains outstanding and unexpired shall subdivide or
combine its Common Stock, the Warrant Price shall be proportionately
decreased in the case of a subdivision or increased in the case of a
combination.
(c) STOCK DIVIDENDS. If the Company at any time while this
Warrant is outstanding and unexpired shall pay a dividend with respect to
Common Stock payable in, or make any other distribution with respect to
Common Stock (except any distribution specifically provided for in the
foregoing subparagraphs (a) or (b)) of, Common Stock, then the Warrant
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Price shall be adjusted, from and after the date of determination of
shareholders entitled to receive such dividend or distribution, to that price
determined by multiplying the Warrant Price in effect immediately prior to
such date of determination by a fraction (i) the numerator of which shall be
the total number of shares of Common Stock outstanding immediately prior to
such dividend or distribution and (ii) the denominator of which shall be the
total number of shares of Common Stock outstanding immediately after such
dividend or distribution.
(d) ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment in the
Warrant Price pursuant to any of Sections 5 (a) through (c), the number of
shares of Common Stock purchasable hereunder shall be adjusted, to the
nearest whole share, to the product obtained by multiplying the number of
shares purchasable immediately prior to such adjustment in the Warrant Price
by a fraction, the numerator of which shall be the Warrant Price immediately
prior to such adjustment and the denominator of which shall be the Warrant
Price immediately thereafter.
6. NOTICE OF ADJUSTMENTS. Whenever any Warrant Price shall be
adjusted pursuant to Section 5 hereof, the Company shall prepare a
certificate signed by its chief financial officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, the Warrant
Price after giving effect to such adjustment and the number of shares then
purchasable upon exercise of this Warrant, and shall cause copies of such
certificate to be mailed (by first class mail, postage prepaid) to the holder
of this Warrant at the address specified in Section 12(d) hereof, or at such
other address as may be provided to the Company in writing by the holder of
this Warrant.
7. FRACTIONAL SHARES. No fractional shares of Common Stock will be
issued in connection with any exercise or conversion hereunder, but in lieu
of such fractional shares the Company shall make a cash payment therefor upon
the basis of the Warrant Price then in effect.
8. COMPLIANCE WITH THE ACT.
(a) COMPLIANCE WITH THE ACT. The holder of this Warrant, by
acceptance hereof, agrees that this Warrant and the shares of Common Stock to
be issued upon exercise or conversion hereof are being acquired for
investment for such holder's own account and not with a view toward
distribution thereof, and that it will not offer, sell or otherwise dispose
of this Warrant or any shares of Common Stock to be issued upon exercise or
conversion hereof unless this Warrant has been registered under the Act and
applicable state securities laws or (i) registration under applicable state
securities laws is not required and (ii) an opinion of counsel satisfactory
to the Company is furnished to the Company to the effect that registration
under the Act is not required.
9. TRANSFER OF WARRANT. This Warrant and the rights granted
hereunder may not be transferred or succeeded to by any person without the
prior written consent of the Company. Subject to compliance with the
foregoing sentence, this Warrant and all rights hereunder shall be
transferable, in whole or in part, at the office of the Company by the holder
hereof in person or by duly authorized attorney, upon surrender of this
Warrant properly endorsed. Each taker and holder of this Warrant, by taking
or holding the same, consents and agrees that this Warrant, when endorsed in
blank, shall be deemed negotiable; provided, that the last holder of this
4
Warrant as registered on the books of the Company may be treated by the
Company and all persons dealing with this Warrant as the absolute owner
hereof for any purposes and as the person entitled to exercise the rights
represented by this Warrant or to transfer hereof on the books of the
Company, any notice to the contrary notwithstanding, unless and until such
holder seeks to transfer registered ownership of this Warrant on the books of
the Company and such transfer is effected.
10. REPORTING REQUIREMENTS. Until the exercise or conversion in full
or the expiration of this warrant, the Company shall provide to the Holder,
as soon as available, but in any case within one hundred twenty (120) days
after the end of the Company's fiscal year, audited consolidated financial
statements of the Company and its subsidiaries, if any, prepared in
accordance with generally accepted accounting principles, consistently
applied, together with an unqualified opinion on such financial statements of
an independent certified public accounting firm.
11. REGISTRATION RIGHTS.
(a) Definitions: the following terms shall have the following
respective meanings for purposes of this Section 11:
(i) "Commission" means the United States Securities and
Exchange Commission, or any other United States Federal agency at the time
administering the Securities Act.
(ii) "Exchange Act" means the United States Securities
Exchange Act of 1934, as amended, or any similar United States statute, and
the rules and regulations of the Commission issued under such act, as they
each may, from time to time, be in effect.
(iii) "Initial Public Offering" means the first public
distribution of the Common Stock pursuant to a firm commitment underwriting,
following which the Common Stock shall be listed and traded on a national
securities exchange or on the NASDAQ National Market System.
(iv) "Securities Act" means the United States Securities
Act of 1933, as amended, or any similar United States statute, and the rules
and regulations of the Commission issued under such act, as they each may,
from time to time, be in effect.
(v) "Registration Statement" means a registration
statement filed by the Company with the Commission for a public offering and
sale of securities of the Company (other than a registration statement on
Form S-8 or Form S-4, or their successors, or any other form for a limited
purpose, or any registration statement covering only securities proposed to
be issued in exchange for securities or assets of another corporation).
(vi) "Registrable Shares" means (i) the shares of Common
Stock issued or issuable upon exercise or conversion of this Warrant, and
(ii) any other shares of Common Stock of the Company issued in respect of
such shares (because of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events).
5
(b) Sale or Transfer of Shares; Legend
(i) The Registrable Shares shall not be sold or
transferred in the United States unless either (i) they first shall have been
registered under the Securities Act, or (ii) the Company first shall have
been furnished with an opinion of legal counsel, reasonably satisfactory to
the Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Securities Act.
(ii) Each certificate representing the Registrable Shares
shall bear a legend substantially in the following form:
"The Shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), and may not
be offered, sold or otherwise transferred, pledged or hypothecated in
the United States unless and until such shares are registered under
the Act or an opinion of counsel satisfactory to the Company is
furnished to the Company to the effect that such registration is not
required."
The foregoing legend shall be removed from the certificates representing any
Registrable Shares at the request of the Holder thereof at such time as they
become registered under the Securities Act or eligible or resale pursuant to
Rule 144(k) under the Securities Act.
(c) Incidental Registration.
(i) Whenever the Company proposes to file a Registration
Statement, prior to such filing it shall give written notice to the Holder of
its intention to do so, and upon the written request of the Holder given
within 30 days after the Company provides such notice (which request shall
state the intended method of disposition of such Registrable Shares), the
Company shall use its best efforts to cause all of the Registrable Shares
which the Holder has requested that the Company register to be registered
under the Securities Act to the extent necessary to permit their sale or
other disposition in accordance with the intended method of distribution
specified in the request of the Holder; provided that, the Company shall have
the right to postpone or withdraw any registration effected pursuant to this
Subsection 11(c) without obligation to the Holder.
(ii) In connection with any offering under this Subsection
11(c) involving an underwriting, and subject to the next sentence hereof, the
Company shall not be required to include any Registrable Shares in such
underwriting in such quantity as will, in the opinion of the underwriters,
jeopardize the success of the offering by the Company or materially adversely
affect the price receivable by the Company in such offering. If in the
opinion of the managing underwriter the registration of all, or part of, the
Registrable Shares which the Holder has requested to be included would
materially and adversely affect the success or the price receivable by the
Company in such public offering, then the Company shall be required to
include in the underwriting only that number of Registrable Shares, if any,
which the managing underwriter believes may be sold without causing such
adverse effect, provided, however, that in no event shall any of the
Registrable Shares be included in such underwriting unless all shares which
have been requested to be included pursuant to that certain Shareholders
Agreement, dated as of July 18, 1997, between the Company and certain of its
shareholders have been included (except to the
6
extent provided for by letter agreement dated on or after the date hereof
between the Holder and any shareholders of the Company having registration
rights under such Shareholders Agreement).
(d) Registration Procedures. If and whenever the Company is
required by the provisions of this Section 11 to use its best efforts to
effect the registration of any of the Registrable Shares under the Securities
Act, the Company shall:
(i) file with the Commission a Registration Statement
with respect to such Registrable Shares and use its best efforts to cause
that Registration Statement to become and remain effective;
(ii) as expeditiously as possible prepare and file with
the Commission any amendments and supplements to the Registration Statement
and the prospectus included in the Registration Statement as may be necessary
to keep the Registration Statement effective for a period of not less than 90
days from the effective date and in any event as long as is required by the
Securities Act;
(iii) as expeditiously as possible furnish to the Holder
such reasonable numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such other documents as the Holder may reasonably request in order to
facilitate the public sale or other disposition of the registered Registrable
Shares owned by the Holder; and
(iv) as expeditiously as possible use its best efforts to
register or qualify the Registrable Shares covered by the Registration
Statement under the securities or Blue Sky laws of such states as the Holder
shall reasonably request, and do any and all other acts and things that may
be necessary or desirable to enable the Holder to consummate the public sale
or other disposition in such jurisdictions; provided, however, that the
Company shall not be required in connection with this paragraph (d) to
qualify as a foreign corporation or execute a general consent to service of
process in any jurisdiction.
If the Company has delivered preliminary or final prospectuses to the Holder
and after having done so the prospectus is amended to comply with the
requirements of the Securities Act, the Company shall promptly notify the
Holder and, if requested, the Holder shall immediately cease making offers of
Registrable Shares and shall return all prospectuses to the Company. The
Company shall promptly provide the Holder with revised prospectuses and,
following receipt of the revised prospectuses, the Holder shall be free to
resume making offers of the Registrable Shares.
(e) Allocation of Expenses. The Company shall pay the
Registration Expenses for all registrations requested by the Holder pursuant
to this Section 11. For purposes of this Section 11, the term "REGISTRATION
EXPENSES" shall mean all expenses incurred by the Company in complying with
this Section 11, including, without limitation, all registration and filing
fees, exchange listing fees, printing expenses, fees and disbursements of
counsel for the Company, out-of-pocket expenses of the Company and the
underwriters, state Blue Sky fees and expenses, and the expense of any
special audits incident to or required by any such registration, but
7
excluding underwriting discount and selling commissions and fees of counsel
for the Holder. Such underwriting discounts and selling commissions shall be
borne pro rata by all selling stockholders in accordance with the number of
their shares included in such registration.
(f) Indemnification.
(i) In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Section 11, then
to the extent permitted by law the Company shall indemnify and hold harmless
the Holder, each underwriter of such Registrable Shares and each other
persons, if any, who controls the Holder or such underwriter within the
meaning of the Securities Act or the Exchange Act against any losses, claims,
damages or liabilities, joint or several, to which the Holder or such
underwriter or controlling person may become subject under the Securities
Act, the Exchange Act, state securities laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act, or any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company shall reimburse the
Holder, such underwriter and each such controlling person for any legal or
any other expenses reasonably incurred by the Holder, or such underwriter or
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the Company
shall not be liable in any such cases to the extent that such loss, claim,
damage or liability arises out of or is based upon any untrue statement or
omission made in such Registration Statement, preliminary prospectus or
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished in writing to the Company by the Holder
or such underwriter or controlling person specifically for use in the
preparation thereof.
(ii) In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Section 11, then
to the extent permitted by law, the Holder shall indemnify and hold harmless
the Company, each of its directors and officers and each underwriter (if any)
and each person, if any, who controls the Company or any such underwriter
within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages or liabilities joint or several, to which the
Company, such directors and officers, underwriter or controlling person may
become subject under the Securities Act, Exchange Act, state securities laws
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect hereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement under which Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained
in the Registration Statement, or any amendment or supplement to the
Registration Statement, or arise out of or are based upon any omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, if the statement or
omission was made in reliance upon and in conformity with information
furnished in writing to the Company by the Holder specifically for use in
connection with the preparation of such Registration Statement, prospectus,
amendment or supplement; PROVIDED, HOWEVER, that the
8
obligations of the Holder hereunder shall be limited to an amount equal to
the proceeds to the Holder from Registrable Shares sold as contemplated
herein.
(iii) Indemnification of an underwriter pursuant to this
Section 11(f) shall not be interpreted as providing relief of such
underwriter from any or all of its due diligence obligations. Further, an
underwriter shall not be entitled to indemnification pursuant to this section
in the event that it fails to deliver to the Holder or to the person
asserting damages with respect to which indemnification is sought any
preliminary or final or revised prospectus, as required by the Rules and
Regulations of the Commission. Finally, no indemnification shall be provided
pursuant to this Section in the event that any error in a preliminary
prospectus of the Company is subsequently corrected in the final prospectus
of the Company for a particular offering, and such final prospectus is
delivered to the person seeking indemnity, in the case of a claim made under
Section 11(f)(i), or to all purchasers in the offering by the Company in the
case of a claim under Section 11(f)(ii) prior to the date of purchase of the
securities.
Each party entitled to indemnification under this Subsection 11(f) (an
"INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom, PROVIDED that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall
not be unreasonably withheld or delayed); and, PROVIDED, FURTHER, that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 11(f).
The Indemnified Party may participate in such defense at such Indemnified
Party's expense, PROVIDED, HOWEVER, that the Indemnifying Party shall pay
such expense if representation of such Indemnified Party by the counsel
retained by the Indemnifying Party would be inappropriate due to actual or
potential differing interest between the Indemnified Party and any other
party represented by such counsel in such proceeding. No Indemnifying Party,
in the defense of any such claim or litigation shall, except with the consent
of each Indemnified Party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation, and no Indemnified Party
shall consent to entry of any judgment or settle such claim or litigation
without the prior written consent of the Indemnifying Party.
(g) Stand-Off Agreement. The Holder, if requested by the Company
and an underwriter of Common Stock or other securities of the Company, shall
agree not to sell or otherwise transfer or dispose of any Registrable Shares
or other securities of the Company held by the Holder for a specified period
of time (not to exceed 90 days) following the effective date of a
Registration Statement other than sales by the Holder pursuant to such
Registration Statement; PROVIDED THAT such agreement shall only apply to the
first such Registration Statement covering Common Stock of the Company to be
sold on its behalf to the public in an underwritten offering.
Such agreement shall be in writing in a form satisfactory to the Company and
such underwriter.
9
(h) Information by Holder. If any Registrable Shares are to be
included in any registration, the Holder shall furnish to the Company such
information regarding the Holder and the distribution proposed by the Holder
as the Company may request and as shall be required, in the reasonable
opinion of counsel for the Company, in connection with any registration,
qualification or compliance referred to in this Section 11.
(i) Rule 144 Requirements. With a view to making available to the
Holders the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the Commission that may at any time permit the
Holder to sell securities of the Company to the public without registration,
the Company agrees to use its best efforts to:
(i) make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act (at any
time after it has become subject to the reporting requirements of the
Exchange Act);
(ii) file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act
and the Exchange Act (at any time after it has become subject to such
reporting requirements); and
(iii) furnish to the Holder of Registrable Shares upon
request a written statement by the Company as to its compliance with the
reporting requirements of said Rule 144 (at any time after 90 days after the
closing of the first sale of securities by the Company pursuant to a
Registration Statement), and of the Securities Act and the Exchange Act (at
any time after it has become subject to such reporting requirements), a copy
of the most recent annual or quarterly report of the Company, and such other
reports and documents of the Company as the Holder may reasonably request to
avail itself of any similar rule or regulation of the Commission allowing it
to sell any such securities without registration.
(j) TERMINATION. The Company's obligations under this Section 11
shall survive the exercise or conversion of this Warrant, but shall terminate
on the earlier of (i) two (2) year after the Company's Initial Public
Offering or (ii) such time as the Holder shall be entitled to sell all of the
Registrable Shares which the Holder then holds within a three (3) month
period pursuant to Rule 144 under the Act.
12. MISCELLANEOUS.
(a) NO RIGHTS AS SHAREHOLDER. The Holder of this Warrant shall
not be entitled to vote or receive dividends or be deemed the holder of
Common Stock or any other securities of the Company which may at any time be
issuable on the exercise or conversion hereof for any purpose, nor shall
anything contained herein be construed to confer upon the Holder of this
Warrant, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value or change of stock to no par
value, consolidation, merger, conveyance or otherwise) or to receive notice
of meetings, or to receive dividends or subscription rights or otherwise
until the Warrant shall have been exercised or
10
converted and the shares purchasable upon the exercise or conversion hereof
shall have become deliverable, as provided herein.
(b) REPLACEMENT. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, on delivery of an indemnity
agreement, or bond reasonably satisfactory in form and amount to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company, at its expense, will execute and deliver, in lieu of this
Warrant, a new Warrant of like tenor.
(c) NOTICE OF CAPITAL CHANGES. In case:
(i) the Company shall declare any dividend or
distribution payable to the holders of its Common Stock;
(ii) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or
merger of the Company with, or sale of all or substantially all of its assets
to, another corporation or business organization; or
(iii) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give the
holder of this Warrant written notice, in the manner set forth in
subparagraph (d) below, of the date on which a record shall be taken for such
dividend, or distribution or for determining shareholders entitled to vote
upon such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up and of the date when any such
transaction shall take place, as the case may be. Such written notice shall
be given at least 30 days prior to the transaction in question and not less
than 20 days prior to the record date in respect thereof.
(d) NOTICE. Any notice given to either party under this Warrant
shall be in writing, and any notice hereunder shall be deemed to have been
given upon the earlier of delivery thereof by hand delivery, by courier, or
by standard form of telecommunication or three (3) business days after the
mailing thereof if sent registered mail with postage prepaid, addressed to
the Company at its principal executive offices and to the holder at its
address set forth in the Company's books and records or at such other address
as the holder may have provided to the Company in writing.
(e) 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 to be observed or performed hereunder by the
Company, but will at all times in good faith assist in the carrying out of
all the provisions in the Warrant.
(f) GOVERNING LAW. This Warrant shall be governed by and
construed under the laws of the State of Delaware.
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IN WITNESS WHEREOF, this Warrant is executed as of this 23rd day of
April, 1998.
MOLDFLOW CORPORATION
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: President
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EXHIBIT 1
NOTICE OF EXERCISE
TO: MOLDFLOW CORPORATION
1. Check Box that Applies:
/ / The undersigned hereby elects to purchase _______ shares
of Common Stock of MOLDFLOW CORPORATION pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
/ / The undersigned hereby elects to convert the attached
warrant into _________ shares of Common Stock of MOLDFLOW CORPORATION
pursuant to the terms of the attached Warrant.
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 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.
______________________________________
Signature
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