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EXHIBIT 4.8
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT
TO A REGISTRATION UNDER THE ACT OR AN EXEMPTION THEREFROM.
WARRANT AGREEMENT
CAYENNE SOFTWARE, INC.
Dated as of December 20, 1996 (the "Effective Date")
WHEREAS, CAYENNE SOFTWARE, INC. (f/k/a Bachman Information Systems,
Inc.) a Massachusetts corporation (the "Company"), has entered into a Letter
Amendment, dated as of October 4, 1996, (the "Letter Amendment") to the Amended
and Restated Revolving Credit Agreement (as amended, the "Revolving Credit
Agreement") dated as of June 5, 1996, with SILICON VALLEY BANK, a
California-chartered bank, with its principal place of business at 3003 Tasman
Drive, Santa Clara, CA 95054 and with a loan production office located at
Wellesley Office Park, 40 William Street, Suite 350 Wellesley, Massachusetts
02181 doing business under the name "Silicon Valley East" (the "Warrantholder");
and
WHEREAS, the Company desires to grant to the Warrantholder, in
consideration for the execution of the Letter Agreement and the loans to be
granted pursuant to the Revolving Credit Agreement, as amended, the right to
purchase shares of the Company's Common Stock;
NOW, THEREFORE, in consideration of the Warrantholder executing and
delivering the Revolving Credit Agreement, as amended, and providing the loans
to the Company thereunder and in consideration of the mutual covenants and
agreements contained herein, the Company and the Warrantholder agree as follows:
1. GRANT OF THE RIGHT TO PURCHASE STOCK.
The Company hereby grants to the Warrantholder, and the Warrantholder is
entitled, upon the terms and subject to the conditions hereinafter set forth, a
Warrant to subscribe to and purchase from the Company, an aggregate of 25,000
fully paid and non-assessable shares ("Warrant Shares") of the Company's Common
Stock, par value $.01 per share ("Common Stock"), at a purchase price of $4.25
per share, but in no event less than the par value per share of Common Stock
acquired (the "Exercise Price"). The number and purchase price of such Warrant
Shares are subject to adjustment as provided in Section 8 hereof.
2. TERM OF THE WARRANT AGREEMENT.
Except as otherwise provided for herein, the term of this Warrant
Agreement and the right to purchase Warrant Shares as granted herein shall
commence on the Effective Date and shall be exercisable for a period of three
(3) years therefrom. The Company shall provide notice to the Warrantholder in
the form of Appendix I hereto within forty-five (45) days prior to the
expiration of the Warrant.
3. EXERCISE OF THE PURCHASE RIGHTS.
(a) The purchase rights set forth in this Warrant Agreement are
exercisable by the Warrantholder, in whole or in part, at any time, or from time
to time, prior to the expiration of the term set forth in Section 2 above, by
tendering to the Company at its principal office a notice of
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exercise in the form attached hereto as APPENDIX II (the "Notice of Exercise"),
duly completed and executed. Promptly upon receipt of the Notice of Exercise and
the payment of the purchase price in accordance with the terms set forth below,
and in no event later than fifteen (15) days thereafter, the Company shall
instruct its transfer agent to issue to the Warrantholder a certificate for the
number of Warrant Shares purchased.
The Exercise Price may be paid at the Warrantholder's election either
(i) by cash or check, or (ii) by surrender of all or a portion of the Warrant
("Net Issuance") as determined below. If the Warrantholder elects the Net
Issuance method, the Company will issue Warrant Shares in accordance with the
following formula:
X = (P)(A-B)
--------
A
Where: X = the number of Warrant Shares to be issued to the
Warrantholder for the portion of the Warrant being exercised.
P = the number of Warrant Shares requested to be exercised under
this Warrant Agreement.
A = the Fair Market Value (defined below) of one (1) share of
the Company's Common Stock multiplied by the number of shares of
Common Stock issuable upon conversion of one Warrant Share on
this date of exercise.
B = the Exercise Price.
As used herein, "Fair Market Value" of Common Stock shall mean with
respect to each share of Common Stock:
(i) if actively traded over-the-counter, the Fair Market Value
shall be deemed to be the average of the closing sale prices quoted on
the NASDAQ system (or similar system) over the ten (10) day period
ending the day before the Fair Market Value of the securities is being
determined;
(ii) if the Common Stock at any time becomes traded on a securities
exchange, the Fair Market Value shall be deemed to be the average of the
closing prices over a ten (10) day period ending the day before the day
the Fair Market Value of the securities is being determined; or
(iii) if at any time the Common Stock is not listed on any
securities exchange or quoted in the NASDAQ System or the
over-the-counter market, the Fair Market Value 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 its Board of Directors, 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 Fair Market Value of Common Stock shall be deemed to be the value
received by the holders of Common Stock pursuant to such merger or
acquisition. The foregoing notwithstanding, if the Warrantholder advises
the Board of Directors in writing that the Warrantholder disagrees with
such determination, then the Company and the Warrantholder shall
promptly agree upon a reputable investment banking firm to undertake
such valuation. If the valuation of such investment banking firm is
greater than that determined by the Board of Directors by at least ten
percent (10%), then all fees and expenses of such investment banking
firm shall be paid by the Company. In all other circumstances, such fees
and expenses shall be paid by the Warrantholder.
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(b) Upon partial exercise by either cash or Net Issuance, the Company
shall promptly issue an amended Warrant Agreement representing the remaining
number of Warrant Shares purchasable hereunder. All other terms and conditions
of such amended Warrant Agreement shall be identical to those contained herein,
including, but not limited to the Effective Date hereof.
4. RESERVATION OF SHARES.
(a) AUTHORIZATION AND RESERVATION OF SHARES. During the term of this
Warrant Agreement, the Company will at all times have authorized and reserved a
sufficient number of shares of its Common Stock to provide for the exercise of
the rights to purchase Warrant Shares as provided for herein.
(b) REGISTRATION OR LISTING. If any shares of Common Stock required to
be reserved hereunder require registration with or approval of any governmental
authority under any Federal or state law (other than any registration under the
Securities Act of 1933, as then in effect ("1933 Act"), or any similar Federal
statute then enforced, or any state securities law, required by reason of any
transfer involved in such conversion), or listing on any domestic securities
exchange, before such shares may be issued upon exercise of this Warrant, the
Company will, at its expense and as expeditiously as possible, use its best
efforts to cause such shares to be duly registered, listed or approved for
listing on such domestic securities exchange, as the case may be.
5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant Agreement, but in lieu of such
fractional shares the Company shall make a cash payment therefor upon the basis
of the Exercise Price then in effect.
6. NO RIGHTS AS SHAREHOLDER.
This Warrant Agreement does not entitle the Warrantholder to any voting
rights or other rights as a shareholder of the Company prior to the exercise of
this Warrant.
7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of
the registered holder of this Warrant Agreement.
8. ADJUSTMENT RIGHTS.
The Exercise Price per share and the number of Warrant Shares
purchasable hereunder are subject to adjustment, as follows:
(a) MERGER AND SALE OF ASSETS. If at any time there shall be a capital
reorganization of the shares of the Company's stock (other than a combination,
reclassification, exchange or subdivision of shares otherwise provided for
herein), or a merger or consolidation of the Company with or into another
corporation when the Company is not the surviving corporation, or the sale of
all or substantially all of the Company's properties and assets to any other
person (hereinafter referred to as a "Merger Event"), then, as a part of such
Merger Event, lawful provision shall be made so that the Warrantholder shall
thereafter be entitled to receive, upon exercise of the Warrant, the number of
Warrant Shares or other marketable securities of the successor corporation
resulting from such Merger Event, equivalent in rights and value to that which
would have been issuable if the Warrantholder had exercised this Warrant
immediately prior to the Merger Event. In any such case, appropriate adjustment
(as determined in good faith by the Company's Board of Directors) shall be made
in the application of the provisions of this Warrant Agreement with respect to
the rights and interest of the Warrantholder after the Merger Event to the end
that the provisions of this Warrant Agreement (including adjustments of the
Exercise Price and number of Warrant Shares purchasable) shall be applicable as
nearly as
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practicable in relation to any shares of stock, securities or assets thereafter
deliverable upon exercise thereof.
Notwithstanding the foregoing, at the election of the Warrantholder, the
Company shall purchase the unexercised portion of this Warrant for cash upon the
closing of any Merger Event in which the Warrantholder does not receive
securities which are either (i) immediately publicly saleable without further
registration or delay or (ii) immediately registrable on the same terms as set
forth in Section 9(e) hereof in an amount equal to (x) the Fair Market Value of
any consideration that would have been received by the Warrantholder had the
Warrantholder exercised the unexercised portion of this Warrant immediately
before the record date for determining the shareholders entitled to participate
in the proceeds of the Merger Event, less (y) the aggregate Exercise Price, but
in no event less than zero.
(b) RECLASSIFICATION OF SHARES. If the Company at any time shall, by
combination, reclassification, exchange or subdivision of securities or
otherwise, change any of the securities as to which purchase rights under this
Warrant Agreement exist into the same or a different number of securities of any
other class or classes, this Warrant Agreement shall thereafter represent the
right to acquire such number and kind of securities as would have been issuable
as the result of such change with respect to the securities which were subject
to the purchase rights under this Warrant Agreement immediately prior to such
combination, reclassification, exchange, subdivision or other change.
(c) SUBDIVISION OR COMBINATION OF SHARES. If the Company at any time
shall combine or subdivide its Common Stock, the Exercise Price shall be
proportionately decreased in the case of a subdivision, or proportionately
increased in the case of a combination.
(d) STOCK DIVIDENDS. If the Company at any time shall pay a dividend
payable in, or make any other distribution (except any distribution specifically
provided for in the foregoing subsections (a) or (b)) of the Company's stock,
then the Exercise Price shall be adjusted, from and after the record date of
such dividend or distribution, to that price determined by multiplying the
Exercise Price in effect immediately prior to such record date by a fraction (i)
the numerator of which shall be the total number of all shares of the Company's
stock outstanding immediately prior to such dividend or distribution, and (ii)
the denominator of which shall be the total number of all shares of the
Company's stock outstanding immediately after such dividend or distribution. The
Warrantholder shall thereafter be entitled to purchase, at the Exercise Price
resulting from such adjustment, the number of Warrant Shares (calculated to the
nearest whole share) obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of Warrant Shares issuable
upon the exercise hereof immediately prior to such adjustment and dividing the
product thereof by the Exercise Price resulting from such adjustment.
(e) ANTI-DILUTION RIGHTS. Except in connection with the Company's up to
$5 million proposed private placement of Series B Preferred Stock and Warrants
on or before January 31, 1997, if the Company at any time while this Warrant is
outstanding shall grant to any holder of the Company's capital stock or to any
holder of any security exchangeable or convertible into or exercisable for
capital stock of the Company (each, a "Holder") any right (i) to adjust the
number of shares of capital stock owned by such Holder or to be acquired by such
Holder pursuant to any exchange, conversion or exercise, or (ii) to adjust the
exercise, conversion or exchange price for shares of capital stock of the
Company, upon the happening of certain events (the "Trigger Event") in order to
maintain and preserve, without dilution, the value of such Holder's shares and
the percentage of such Holder's ownership in the Company prior to the Trigger
Event ("Anti-Dilution Rights"), then the Company shall also grant Anti-Dilution
Rights to the Warrantholder on the same terms and conditions granted to such
Holder. In the event the Company grants Anti-Dilution Rights to more than one
Holder upon different terms and conditions, then the Company shall grant to
Warrantholder the Anti-Dilution Rights granted to the Holder with the terms and
conditions which the Warrantholder determines, in its sole discretion, to be
most favorable to the Warrantholder.
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(f) NOTICE OF ADJUSTMENTS. If: (i) the Company shall declare any
dividend or distribution upon its stock, whether in cash, property, stock or
other securities; (ii) the Company shall offer for subscription pro rata to the
holders of Common Stock or other stock any additional shares of stock of any
class or other rights; (iii) there shall be any Merger Event; or (iv) there
shall be any voluntary or involuntary dissolution, liquidation or winding up of
the Company; then, in connection with each such event, the Company shall send to
the Warrantholder: (A) at least twenty (20) days' prior written notice of the
date on which the books of the Company shall close or a record shall be taken
for such dividend, distribution, subscription rights (specifying the date on
which the holders of Common Stock shall be entitled thereto) or for determining
rights to vote in respect of such Merger Event, dissolution, liquidation or
winding up; and (B) in the case of any such Merger Event, dissolution,
liquidation or winding up, at least twenty (20) days' prior written notice of
the date when the same shall take place (and specifying the date on which the
holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such Merger Event, dissolution,
liquidation or winding up). In the case of a public offering, the Company shall
give the Warrantholder at least twenty (20) days written notice prior to the
effective date thereof.
Each such written notice shall set forth, in reasonable detail, (i) the
event requiring the adjustment, (ii) the amount of the adjustment, (iii) the
method by which such adjustment was calculated, (iv) the Exercise Price, and (v)
the number of shares subject to purchase hereunder after giving effect to such
adjustment, and shall be given by first class mail, postage prepaid, addressed
to the Warrantholder, at the address as shown on the books of the Company.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
(a) RESERVATION OF WARRANT SHARES. The Warrant Shares issuable upon
exercise of the Warrant granted under this Warrant Agreement have been duly and
validly reserved and, when issued in accordance with the provisions of this
Warrant Agreement, will be validly issued, fully paid and non-assessable, and
will be free of any taxes, liens, charges or encumbrances of any nature
whatsoever. The Company has made available to the Warrantholder true, correct
and complete copies of its Articles of Organization and Bylaws, as amended to
date. The issuance of certificates for shares of Common Stock upon exercise of
the Warrant granted under this Warrant Agreement shall be made without charge to
the Warrantholder for any issuance tax or transfer tax in respect thereof, or
other cost incurred by the Company in connection with such exercise and the
related issuance of Warrant Shares.
(b) DUE AUTHORITY. The execution and delivery by the Company of this
Warrant Agreement and the performance of all obligations of the Company
hereunder, including the issuance to Warrantholder of the right to acquire the
Warrant Shares upon exercise of the Warrant granted hereby, have been duly
authorized by all necessary corporate action on the part of the Company, and
this Warrant Agreement is not inconsistent with the Company's Articles of
Organization or Bylaws, each as amended to date, does not contravene any law or
governmental rule, regulation or order applicable to it, does not and will not
contravene any provision of, or constitute a default under, any material
indenture, mortgage, contract or other instrument to which it is a party or by
which it is bound, and this Warrant Agreement and the Warrant evidenced hereby
constitute legal, valid and binding agreements of the Company, enforceable
against it in accordance with their terms.
(c) CONSENTS AND APPROVALS. No consent or approval of, giving of notice
to, registration with, or taking of any other action in respect of any state,
Federal or other governmental authority or agency is required with respect to
the execution, delivery and performance by the Company of its obligations under
this Warrant Agreement.
(d) ISSUED SECURITIES. All issued and outstanding shares of capital
stock and other securities of the Company have been duly authorized and validly
issued and are fully paid and nonassessable. All outstanding shares of capital
stock and other securities of the Company were issued in full compliance with
all applicable Federal and state securities laws. In addition, in
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accordance with the Company's Articles of Organization, no shareholder of the
Company has preemptive rights to purchase new issuances of the Company's capital
stock.
(e) REGISTRATION RIGHTS. The Company hereby acknowledges and agrees
that the Warrantholder shall have, with respect to the Warrant Shares, the
following registration rights:
(i) CERTAIN DEFINITIONS. As used in this Section 9(e), the
term "Registrable Securities" shall mean the Warrant Shares, and/or any
or all of the shares of Common Stock issued or issuable upon exercise of
this Warrant.
(ii) "PIGGYBACK" REGISTRATION. From the date hereof until the
expiration date of the Warrant set forth in Section 2 of this Warrant
Agreement, the Company shall advise the Warrantholder, whether the
Warrantholder holds this Warrant or has exercised this Warrant and
holds any of the Common Stock, by written notice at least four weeks
prior to the filing of any new registration statement or post-effective
amendment thereto under the 1933 Act (other than a registration
statement on Form S-8 or its counterpart), or any Notification on Form
1-A under the 1933 Act, covering any securities of the Company, whether
for its own account or for the account of others, and shall, upon the
request of the Warrantholder, include in any new registration statement
such information as may be required to permit a public offering of any
or all of the Registrable Securities of the Warrantholder subject to
cutbacks imposed by underwriters or the Company in the same manner and
to the same extent as applied to other selling securityholders, all at
no expense whatsoever to the Warrantholder, except that the
Warrantholder shall bear the fees of its own counsel and any
underwriting discounts or commissions applicable to the Common Stock
sold by it.
(iii) Demand Registration.
-------------------
(1) If the Warrantholder shall give notice to the Company,at
any time prior to the expiration date of the Warrant set forth in Section 2 of
this Agreement, to the effect that such Warrantholder desires to register under
the 1933 Act any Registrable Securities representing at least one third of the
Warrant Shares originally issuable hereunder under such circumstances that a
public distribution (within the meaning of the 1933 Act) of any such securities
shall be involved, then the Company shall promptly, but no later than ninety
(90) days after receipt of such notice, file a new registration statement under
the 1933 Act, to the end that Registrable Securities of such Warrantholder may
be publicly sold under the 1933 Act as promptly as practicable thereafter, and
the Company shall use its best efforts to cause such registration to become
effective as soon as possible; PROVIDED, HOWEVER, that the Warrantholder shall
furnish the Company with appropriate information in connection therewith as the
Company may reasonably request in writing; and provided further that the
Company shall then have available current financial statements (unless the
unavailability of current financial statements results from the Company's fault
or neglect).
(2) All costs and expenses (including without limitation,
legal, accounting, printing, mailing and filing fees) of such registration
effected under this Section 9(e)(iii) shall be borne by the Company, except that
the Warrantholder shall bear the fees of its own counsel and any underwriting
discounts or commissions applicable to the securities sold by it.
(3) The Company shall cause each registration statement
filed pursuant to this Section 9(e)(iii) to remain current under the 1933 Act
(including the taking of such steps as are necessary to obtain the removal of
any stop order) for a period of at least ninety (90) days (and for up to an
additional ninety (90) days if requested by Warrantholder) from the effective
date thereof, or until all the Registrable Securities included in such
registration have been sold, whichever is earlier.
(iv) FURTHER RIGHTS. The registration rights provided by this
Section 9 may be exercised by the Warrantholder either prior or
subsequent to its exercise of this Warrant. The Warrantholder may, at
its option, request registration pursuant to Section 9(e)(ii)
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and/or pursuant to Section 9(e)(iii), and its request for registration
under one such Section shall not affect its right to request
registration under the other.
(v) FURTHER OBLIGATIONS OF COMPANy. With respect to all
registrations under this Section 9, the Company shall: (i) supply
prospectuses and such other documents as the Warrantholder may
reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities; (ii) use its best efforts to
register and qualify the Registrable Securities for sale in such states
as the Warrantholder designates (provided, however, that in no event
shall the Company be required to qualify as a foreign corporation or a
dealer in securities or to execute a general consent to service of
process); and (iii) do any and all other acts and things which may be
necessary to enable the Warrantholder to consummate the public sale or
other disposition of the Registrable Securities.
(f) EXEMPT TRANSACTION. Subject to the accuracy of the Warrantholder's
representations in Section 10 hereof, the issuance of the Warrant Shares upon
exercise of this Warrant will constitute a transaction exempt from (i) the
registration requirements of Section 5 of the 1933 Act and (ii) the
qualification requirements of applicable state securities laws.
(g) COMPLIANCE WITH RULE 144. At the written request of the
Warrantholder who proposes to sell Warrant Shares issuable upon the exercise of
the Warrant in compliance with Rule 144 promulgated by the Securities and
Exchange Commission, the Company shall furnish to the Warrantholder, within ten
days after receipt of such request, a written statement confirming the Company's
compliance with the filing requirements of the Securities and Exchange
Commission as set forth in such Rule, as such Rule may be amended from time to
time.
(i) INFORMATION RIGHTS. So long as the Warrantholder holds this
Warrant and/or any of the Warrant Shares, the Company shall deliver to
the Warrantholder (a) promptly after mailing, copies of all annual
reports, notices or other written communications to the shareholders of
the Company; (b) within ninety (90) days after the end of each fiscal
year of the Company, the annual audited financial statements of the
Company certified by independent public accountants of recognized
standing and (c) within forty-five (45) days after the end of each of
the first three quarters of each fiscal year, the Company's quarterly,
unaudited financial statements.
10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Warrant Agreement has been entered into by the Company in reliance
upon the following representations and covenants of the Warrantholder:
(a) INVESTMENT PURPOSE. The right to acquire Warrant Shares or the
Warrant Shares issuable upon exercise of the Warrant granted hereby will be
acquired for investment and not with a view to the sale or distribution of any
part thereof in violation of applicable securities laws, and the Warrantholder
has no present intention of selling or engaging in any public distribution of
the same except pursuant to a registration or exemption.
(b) PRIVATE ISSUE. The Warrantholder understands (i) that the Warrant
Shares issuable upon exercise of this Warrant are not registered under the 1933
Act or qualified under applicable state securities laws on the ground that the
issuance contemplated by this Warrant Agreement will be exempt from the
registration and qualifications requirements thereof, and (ii) that the
Company's reliance on such exemption is predicated on the representations set
forth in this Section 10.
(c) DISPOSITION OF WARRANTHOLDER'S RIGHTS. In no event will the
Warrantholder make a disposition of any of its rights to acquire Warrant Shares
or Warrant Shares issuable upon exercise of such rights unless and until (i) it
shall have notified the Company of the proposed disposition, and (ii) if
requested by the Company, it shall have furnished the Company with an
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opinion of counsel (which counsel may either be inside or outside counsel to the
Warrantholder) reasonably satisfactory to the Company and its counsel to the
effect that (A) appropriate action necessary for compliance with the 1933 Act
and applicable "blue sky" regulations has been taken, or (B) an exemption from
the registration requirements of the 1933 Act and applicable "blue sky"
regulations is available. Notwithstanding the foregoing, the restrictions
imposed upon the transferability of any of its rights to acquire Warrant Shares
or Warrant Shares issuable on the exercise of such rights do not apply to
transfers from the beneficial owner of any of the aforementioned securities to
its nominee or from such nominee to its beneficial owner, and shall terminate as
to any particular Warrant Share when (1) such security shall have been
effectively registered under the 1933 Act and sold by the holder thereof in
accordance with such registration or (2) such security shall have been sold
without registration in compliance with Rule 144 under the 1933 Act, or (3) a
letter shall have been issued to the Warrantholder at its request by the staff
of the Securities and Exchange Commission or a ruling shall have been issued to
the Warrantholder at its request by such Commission stating that no action shall
be recommended by such staff or taken by such Commission, as the case may be, if
such security is transferred without registration under the 1933 Act in
accordance with the conditions set forth in such letter or ruling and such
letter or ruling specifies that no subsequent restrictions on transfer are
required. Whenever the restrictions imposed hereunder shall terminate, as
hereinabove provided, the Warrantholder or holder of a Warrant Share then
outstanding as to which such restrictions have terminated shall be entitled to
receive from the Company, without expense to such holder, one or more new
certificates for the Warrant or for such Warrant Shares not bearing any
restrictive legend.
(d) FINANCIAL RISK. The Warrantholder has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of its investment, and has the ability to bear the economic risks of its
investment.
11. TRANSFERS.
Subject to the terms and conditions contained in Section 10 hereof, this
Warrant Agreement and all rights hereunder are transferable in whole or in part
by the Warrantholder and any successor transferee. The transfer shall be
recorded on the books of the Company upon receipt by the Company of a notice of
transfer in the form attached hereto as APPENDIX III (the "Transfer Notice"), at
its principal offices and the payment to the Company of all transfer taxes and
other governmental charges imposed on such transfer.
12. MISCELLANEOUS.
(a) EFFECTIVE DATE. The provisions of this Warrant Agreement shall be
construed and shall be given effect in all respects as if it had been executed
and delivered by the Company on the date hereof. This Warrant Agreement and the
Warrant granted hereunder and evidence hereby shall be binding upon any
successors or assigns of the Company.
(b) ATTORNEY'S FEES. In any litigation, arbitration or court proceeding
between the Company and the Warrantholder relating hereto, the prevailing party
shall be entitled to reasonable attorneys' fees and expenses and all costs of
proceedings incurred in enforcing this Warrant Agreement.
(c) GOVERNING LAW; JURISDICTION. This Warrant Agreement shall be
governed by and construed for all purposes under and in accordance with the
internal laws of the Commonwealth of Massachusetts. The Company hereby submits
to the non-exclusive jurisdiction of any state or federal court of competent
jurisdiction of the Commonwealth of Massachusetts or the State of California for
the purpose of any suit, action or other proceeding arising out of, or with
respect to this Warrant Agreement, and expressly waives any and all objections
it may have as to venue in any of such courts or as to inconvenient forum.
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(d) COUNTERPARTS. This Warrant Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) NOTICES. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effectively given upon personal delivery, upon
confirmed receipt if sent by facsimile transmission, three (3) days after
deposit in the United States mail, first class, postage prepaid or one (1) day
after delivery by overnight courier, addressed (i) to the Warrantholder at
Wellesley Office Park, 40 William Street, Suite 350, Wellesley, Massachusetts
02181, Attention: David B. Fischer, Senior Vice President (and/or, if by
facsimile, 617/431-9906) and (ii) to the Company at 8 New England Executive
Park, Burlington, Massachusetts 01803, Attention: Frederick H. Phillips (and/or
if by facsimile, 617/229-9864) or at such other address as any such party may
subsequently designate by written notice to the other party).
(f) REMEDIES. In the event of any default hereunder, the non-defaulting
party may proceed to protect and enforce its rights either by suit in equity
and/or by action at law, including but not limited to an action for damages as a
result of any such default, and/or an action for specific performance for any
default where the Warrantholder will not have an adequate remedy at law and
where damages will not be readily ascertainable.
(g) NO IMPAIRMENT OF RIGHTS. The Company will not, by amendment of its
Articles of Organization or through any other means, 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 actions as may be necessary or appropriate in order to
protect the rights of the Warrantholder against impairment.
(h) SURVIVAL. The representations, warranties, covenants and conditions
of the respective parties contained herein or made pursuant to this Warrant
Agreement shall survive the execution and delivery of this Warrant Agreement.
(i) SEVERABILITY. In the event any one or more of the provisions of this
Warrant Agreement shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Warrant Agreement shall be
unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a mutually acceptable valid, legal and enforceable provision, which
comes closest to the intention of the parties underlying the invalid, illegal or
unenforceable provision.
(j) AMENDMENTS. Any provision of this Warrant Agreement may be amended
by a written instrument signed by the Company and by the Warrantholder.
* * * * * * *
E-87
10
CAYENNE SOFTWARE, INC.
WARRANT AGREEMENT
SIGNATURE PAGE
--------------
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be executed by its officers thereunto duly authorized as of the
Effective Date.
CAYENNE SOFTWARE, INC.
By:
-------------------------------------
Its Chief Financial Officer
Warrantholder:
SILICON VALLEY EAST
By:
-------------------------------------
David B. Fischer,
Senior Vice President
SILICON VALLEY BANK
(signed at Santa Clara, CA)
By:
-------------------------------------
Name:
S-1
11
APPENDIX I
NOTICE THAT WARRANT IS ABOUT TO EXPIRE
--------------------------------------
Silicon Valley Bank
Wellesley Office Park
40 William Street, Suite 350
Wellesley, MA 02181
Attn: Chief Financial Officer
Dear:______________________
This is to advise you that the Warrant issued to you described below
will expire on ______________ __, ______.
Issuer: Cayenne Software, Inc.
Issue Date: December , 1996
Class of Security Issuable: Common Stock
Exercise Price per Share: ____________________
Number of Shares Issuable: ___________________
Procedure for Exercise: ______________________
Please contact [name of contact person at (phone number)] with any
questions you may have concerning exercise of the Warrant. This is your only
notice of pending expiration.
Cayenne Software, Inc.
By:
------------------------------
Its:
12
APPENDIX II
NOTICE OF EXERCISE
------------------
[Strike paragraph that does not apply.]
1. The undersigned hereby elects to purchase ________ shares of the
Common Stock of Cayenne Software, Inc. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
1. The undersigned hereby elects to convert the attached Warrant
into Shares/cash [strike one] in the manner specified in the Warrant. This
conversion is exercised with respect to of the Shares covered by the Warrant.
2. Please issue a certificate or certificates representing said
shares in the name of the undersigned or in such other name as is specified
below:
__________________________________________________________________________
(Name)
__________________________________________________________________________
_____________________________________
(Address)
3. The undersigned represents it is acquiring the shares solely for its
own account and not as a nominee for any other party and not with a view toward
the resale or distribution thereof except in compliance with applicable
securities laws.
_________________________ ____________________________________
(Date) (Signature)
13
ACKNOWLEDGMENT OF EXERCISE
The undersigned ________, hereby acknowledges receipt of the "Notice of
Exercise" from Warrantholder, to purchase ________shares of the Common Stock of
Cayenne Software, Inc., pursuant to the terms of the Warrant Agreement, and
further acknowledges that ________ shares remain subject to purchase under the
terms of the Warrant Agreement.
Company: Cayenne Software, Inc.
By:_______________________________
Title:____________________________
Date:_____________________________
14
APPENDIX III
TRANSFER NOTICE
---------------
(To transfer or assign the foregoing Warrant Agreement execute this form
and supply required information. Do not use this form to purchase
shares.)
FOR VALUE RECEIVED, the foregoing Warrant Agreement and all rights
evidenced thereby are hereby transferred and assigned to
_________________________________________
(Please Print)
whose address is ________________________
_________________________________________
Dated _______________________________________
Holder's Signature __________________________
Holder's Address ____________________________
____________________________
Signature Guaranteed: _______________________________________
NOTE: The signature to this Transfer Notice must correspond with the
name as it appears on the face of the Warrant Agreement, without
alteration or enlargement or any change whatever. Officers of
corporations and those acting in a fiduciary or other
representative capacity should file proper evidence of authority
to assign the foregoing Warrant Agreement.