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
February 13, 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, Xxxxxx X. Xxxxxx, having an
address c/o Xxxxxx Xxxxxxx Wines, 0000 Xxxxxx Xxxxxx, Xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx, 10801 ("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 sixty (60) months after the date
hereof Fifty Thousand (50,000) 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 Two Dollars and Twenty Five Cents (U.S. $2.25) per
share of Common Stock (the "Purchase Price"), as the same may be adjusted
pursuant to Section and 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 of even date and delivery between the Company and the Purchaser,
or in the Debentures issued by the Company to the Purchaser pursuant
to the Agreement (the "Debentures"), 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
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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.
(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.
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(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")
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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 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.
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(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 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
-6-
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
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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 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:
to the Company:
Zycad Corporation
00000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn:
Fax: (000) 000-0000
-8-
with copies to:
Xxxxxx, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn:
Fax:
to the Warrant Holder:
Capital Ventures International
0 Xxxxxxx Xxxxx
P.O. Box 1787GT
Grand Cayman, Cayman Islands
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
x 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
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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 sixty
(60) months after the date hereof.
[Signatures on next page.]
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Dated as of: February 13, 1997 ZYCAD CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------
Title: President and Chief Executive Officer
[CORPORATE SEAL]
Attest:
/s/ Xxxxxxx X. Xxxxx
-------------------------
Its: Corporate Secretary
Xxxxxx X. Xxxxxx
By: Promethean Investment Group
Its: Investment Advisor
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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:
____________________________
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