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Exhibit 4.10
WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE WARRANT UNDER SUCH ACT AND APPLICABLE LAWS OR SOME
OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE
LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED.
No. W-CS1 Warrant to Purchase Shares of
Common Stock (subject to adjustment)
WARRANT TO PURCHASE COMMON STOCK
OF
TVIA, INC.
This certifies that, for value received, WIND RIVER SYSTEMS, INC., or its
permitted assigns ("Holder") is entitled, subject to the terms set forth below,
to purchase from TVIA, INC., a California corporation (the "Company"), such
number of shares of the common stock of the Company equal to the quotient of
Five Hundred Thousand Dollars ($500,000.00) divided by the IPO Price (as defined
below) rounded down to the nearest whole number (the "Warrant Shares") at a
purchase price per share (the "Exercise Price") as is determined in accordance
with Section 2 below. The "IPO Price" shall mean the price per share at which
the Company's common stock is sold to the public in the Company's initial public
offering made pursuant to the Registration Statement on Form S-1 under the
Securities Act of 1933, as amended (File No. 333-34024) (the "IPO"). The
number, character and Exercise Price of such shares of Common Stock are subject
to adjustment as provided below and all references to "Warrant Shares" and
"Exercise Price" herein shall be deemed to include any such adjustment or series
of adjustments. The term "Warrant" as used herein shall mean this Warrant, and
any warrants delivered in substitution or exchange therefor as provided herein.
This Warrant is being issued in connection with that Common Stock and
Warrant Purchase Agreement dated July 27, 2000 (the "Purchase Agreement").
1. Term of Warrant. Subject to the terms and conditions set forth herein,
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this Warrant shall be exercisable, in whole or in part, during the term
commencing on the date hereof and ending at 5:00 p.m., Pacific standard time, on
the third anniversary of the date hereof and shall be void thereafter (the
"Exercise Period").
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2. Exercise Price. The Exercise Price at which this Warrant may be exercised
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shall be the IPO Price, as adjusted from time to time pursuant to Section 11
hereof.
3. Exercise of Warrant.
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(a) Cash Exercise. This Warrant may be exercised by the Holder by (i) the
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surrender of this Warrant to the Company, with the Notice of Exercise annexed
hereto duly completed and executed on behalf of the Holder, at the office of
the Company (or such other office or agency of the Company as it may designate
by notice in writing to the Holder at the address of the Holder appearing on
the books of the Company) during the Exercise Period and (ii) the delivery of
payment to the Company, for the account of the Company, by cash, wire transfer
of immediately available funds to a bank account specified by the Company, or
by certified or bank cashier's check, of the Exercise Price for the number of
Warrant Shares specified in the Exercise Form in lawful money of the United
States of America. The Company agrees that such Warrant Shares shall be deemed
to be issued to the Holder as the record holder of such Warrant Shares as of
the close of business on the date on which this Warrant shall have been
surrendered and payment made for the Warrant Shares as aforesaid. A stock
certificate or certificates for the Warrant Shares specified in the Exercise
Form shall be delivered to the Holder as promptly as practicable, and in any
event within ten (10) days, thereafter. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of the
stock certificate or certificates, deliver to the Holder a new Warrant
evidencing the rights to purchase the remaining Warrant Shares, which new
Warrant shall in all other respects be identical with this Warrant. No
adjustments shall be made on Warrant Shares issuable on the exercise of this
Warrant for any cash dividends paid or payable to holders of record of Common
Stock prior to the date as of which the Holder shall be deemed to be the
record holder of such Warrant Shares.
(b) Net Issue Exercise. Notwithstanding any provisions herein to the
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contrary, if the fair market value of one share of Common Stock is greater
than the Exercise Price (at the date of calculation as set forth below), in
lieu of exercising this Warrant for cash, the Holder may elect to receive
shares equal to the value (as determined below of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant at the principal office
of the Company together with the properly endorsed Notice of Exercise and
notice of such election in which even the Company shall issue to the Holder a
number of shares of Common Stock computed using the following formula:
X = Y(A-B)
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A
Where X = the number of shares of Common Stock to be issued to the
Holder
Y = the number of shares of Common Stock purchasable under the
Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being canceled (at the
date of such calculation)
A = the fair market value of one share of the Company's Common
Stock (at the date of such calculation)
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B = Exercise Price (as adjusted to the date of such calculation)
For purposes of the above calculation, fair market value of one share of Common
Stock shall be the average of the closing bid and asked prices of the Company's
Common Stock quoted in the Over-The-Counter Market Summary or the last reported
sale price of the Common Stock or the closing price quoted on the NASDAQ
National Market or on any exchange on which the Common Stock is listed,
whichever is applicable, as published in the Western Edition of the Wall Street
Journal for the five (5) trading days prior to the date of determination of fair
market value.
(c) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of Common Stock
issuable upon such exercise shall be treated for all purposes as the holder of
record of such shares as of the close of business on such date. As promptly as
practicable on or after such date and in any event within ten (10) days
thereafter, the Company at its expense shall issue and deliver to the person
or persons entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise. In the event that this Warrant
is exercised in part, the Company at its expense will execute and deliver a
new Warrant of like tenor exercisable for the number of shares for which this
Warrant may then be exercised.
4. No Fractional Shares or Scrip. No fractional shares or scrip
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representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise
be entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
5. Replacement of Warrant. On receipt of evidence reasonably
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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 reasonably satisfactory in form and substance to the
Company or, in the case of mutilation, on surrender and cancellation of this
Warrant, the Company at its expense shall execute and deliver, in lieu of this
Warrant, a new warrant of like tenor and amount.
6. Rights of Stockholders. Subject to Sections 9 and 11 of this
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Warrant, the Holder shall not be entitled to vote or receive dividends or be
deemed the holder of Common Stock or any other securities of the Company that
may at any time be issuable on the exercise hereof for any purpose, nor shall
anything contained herein be construed to confer upon the Holder, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders 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 as provided herein.
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7. Transfer of Warrant.
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(a) Warrant Register. The Company will maintain a register (the "Warrant
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Register") containing the names and addresses of the Holder or Holders. Any
Holder of this Warrant or any portion thereof may change his address as shown
on the Warrant Register by written notice to the Company requesting such
change. Any notice or written communication required or permitted to be given
to the Holder may be delivered or given by mail to such Holder as shown on the
Warrant Register and at the address shown on the Warrant Register.
(b) Warrant Agent. The Company may, by written notice to the Holder,
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appoint an agent for the purpose of maintaining the Warrant Register referred
to in Section 7(a) above, issuing the Common Stock or other securities then
issuable upon the exercise of this Warrant, exchanging this Warrant, replacing
this Warrant, or any or all of the foregoing. Thereafter, any such
registration, issuance, exchange, or replacement, as the case may be, shall be
made at the office of such agent.
(c) Transferability and Nonnegotiability of Warrant. This Warrant may
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not be transferred or assigned in whole or in part without compliance with all
applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Company, if such are requested
by the Company). Notwithstanding the foregoing, no investment representation
letter or opinion of counsel shall be required for any transfer of this
Warrant (or any portion thereof) or any shares of Common Stock issued upon
exercise hereof (i) in compliance with Rule 144 or Rule 144A of the Securities
Act of 1933, as amended (the "Act"), (ii) by gift, will or intestate
succession by the Holder to his or her spouse or lineal descendants or
ancestors or any trust for any of the foregoing or (iii) to an affiliate of
the Holder; provided that in each of the foregoing cases the transferee agrees
in writing to be subject to the terms of this Section 7(c). In addition, if
the holder of the Warrant (or any portion thereof) or any Common Stock issued
upon exercise hereof delivers to the Company an unqualified opinion of counsel
that no subsequent transfer of such Warrant or Common Stock shall require
registration under the Act, the Company shall, upon such contemplated
transfer, promptly deliver new documents/certificates for such Warrant or
Common Stock that do not bear the legend set forth in Section 3.8 of the
Purchase Agreement. Subject to the provisions of this Warrant with respect to
compliance with the Act, title to this Warrant may be transferred by
endorsement (by the Holder executing the Assignment Form annexed hereto) and
delivery in the same manner as a negotiable instrument transferable by
endorsement and delivery.
(d) Exchange of Warrant Upon a Transfer. On surrender of this Warrant for
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exchange, properly endorsed on the Assignment Form and subject to the
provisions of this Warrant with respect to compliance with the Act and with
the limitations on assignments and transfers contained in this Section 7, the
Company at its expense shall issue to or on the order of the Holder a new
warrant or warrants of like tenor, in the name of the Holder or as the Holder
(on payment by the Holder of any applicable transfer taxes) may direct, for
the number of shares issuable upon exercise hereof and shall promptly record
such transfer in the Warrant Register.
8. Reservation of Stock. The Company covenants that during the term this
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Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a
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sufficient number of shares to provide for the issuance of Common Stock upon
the exercise of this Warrant and, from time to time, will take all steps
necessary to amend its Articles of Incorporation, as amended (the "Articles")
to provide sufficient reserves of shares of Common Stock, issuable upon
exercise of the Warrant. The Company further covenants that all shares that
may be issued upon the exercise of rights represented by this Warrant, upon
exercise of the rights represented by this Warrant and payment of the Exercise
Price, all as set forth herein, will be free from all taxes, liens and charges
in respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously or otherwise specified herein). The Company agrees
that its issuance of this Warrant shall constitute full authority to its
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of Common Stock upon
the exercise of this Warrant.
9. Notices.
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(a) Whenever the Exercise Price or number of shares purchasable
hereunder shall be adjusted pursuant to Section 11 hereof, the Company shall
issue 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, and the
Exercise 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 Holder of this Warrant.
(b) In case:
(i) the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time receivable upon
the exercise of this Warrant) for the purpose of entitling them to
receive any dividend or other distribution, or any right to subscribe for
or purchase any shares of stock of any class or any other securities, or
to receive any other right;
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation
or merger of the Company with or into another corporation or other
entity, or any conveyance of all or substantially all of the assets of
the Company to another corporation or other entity;
(iii) of any voluntary dissolution, liquidation or winding up
of the Company; or
(iv) of any redemption or conversion of all outstanding
Preferred Stock or Common Stock;
then, and in each such case, the Company will mail or cause to be mailed to the
Holder or Holders a notice specifying, as the case may be, (A) the date on which
a record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right or
(B) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation, winding up, redemption or
conversion is to take place, and the time, if any is to be fixed, as of which
the holders of record of
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Common Stock (or such stock or securities at the time receivable upon the
exercise of this Warrant) shall be entitled to exchange their shares of Common
Stock (or such other stock or securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding up. Such notice shall be
mailed at least fifteen (15) days prior to the date therein specified.
(c) All such notices, advices and communications shall be deemed to have
been received (i) in the case of personal delivery, on the date of such
delivery and (ii) in the case of mailing, on the third business day following
the date of such mailing if sent to a U.S. address and on the tenth business
day following the date of such mailing if sent to an address outside the U.S.
10. Amendments. This Warrant and any term hereof may be changed, waived,
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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.
11. Adjustments. The Exercise Price and the number of shares purchasable
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hereunder are subject to adjustment from time to time as follows:
(a) Merger, Sale of Assets, etc. Subject to the provisions of Section 1
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hereof, if at any time while this Warrant, or any portion thereof, is
outstanding and unexpired there shall be (i) a reorganization (other than a
combination, reclassification, exchange or subdivision of shares otherwise
provided for herein), (ii) a merger or consolidation of the Company with or
into another corporation or other entity in which the Company is not the
surviving entity, or a reverse triangular merger in which the Company is the
surviving entity but the shares of the Company's capital stock outstanding
immediately prior to the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise, or (iii)
a sale or transfer of the Company's properties and assets as, or substantially
as, an entirety to any other person, then, as a part of such reorganization,
merger, consolidation, sale or transfer, lawful provision shall be made so
that the holder of this Warrant shall thereafter be entitled to receive upon
exercise of this Warrant, during the period specified herein and upon payment
of the Exercise Price then in effect, the number of shares of stock or other
securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or transfer if
this Warrant had been exercised immediately before such reorganization,
merger, consolidation, sale or transfer, all subject to further adjustment as
provided in this Section 11. The foregoing provisions of this Section 11(a)
shall similarly apply to successive reorganizations, consolidations, mergers,
sales and transfers and to the stock or securities of any other corporation
that are at the time receivable upon the exercise of this Warrant. If the per
share consideration payable to the holder hereof for shares in connection with
any such transaction is in a form other than cash or marketable securities,
then the value of such consideration shall be determined in good faith by the
Company's Board of Directors. In all events, 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 with respect to the rights
and interests of the Holder after the transaction, to the end that the
provisions of this Warrant shall be applicable after that event, as near as
reasonably may be, in relation to any shares or other property deliverable
after that event upon exercise of this Warrant.
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(b) Reclassification, etc. If the Company, at any time while this
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Warrant, or any portion thereof, remains outstanding and unexpired, by
reclassification of securities or otherwise, shall change any 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, this
Warrant 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 that were subject to the purchase rights under this
Warrant immediately prior to such reclassification or other change and the
Exercise Price therefor shall be appropriately adjusted, all subject to
further adjustment as provided in this Section 11.
(c) Split, Subdivision or Combination of Shares. If the Company at any
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time while this Warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which
purchase rights under this Warrant exist, into a different number of
securities of the same class, then (i) in the case of a split or subdivision,
the Exercise Price for such securities shall be proportionately decreased and
the securities issuable upon exercise of this Warrant shall be proportionately
increased, and (ii) in the case of a combination, the Exercise Price for such
securities shall be proportionately increased and the securities issuable upon
exercise of this Warrant shall be proportionately decreased.
(d) Certificate as to Adjustments. Upon the occurrence of each
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adjustment or readjustment pursuant to this Section 11, the Company at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each Holder of this Warrant a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon
the written request, at any time, of any such Holder, furnish or cause to be
furnished to such Holder a like certificate setting forth: (i) such
adjustments and readjustments; (ii) the Exercise Price at the time in effect;
and (iii) the number of shares and the amount, if any, of other property that
at the time would be received upon the exercise of the Warrant.
(e) No Impairment. The Company will not, by any voluntary action, avoid
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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 of this Section 11 and
in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Holder of this Warrant against impairment.
12. Miscellaneous.
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(a) This Warrant shall be governed by the laws of the State of Delaware
as applied to agreements entered into in the State of Delaware by and among
residents of the State of Delaware.
(b) In the event of a dispute with regard to the interpretation of this
Warrant, the prevailing party may collect the cost of attorney's fees,
litigation expenses or such other expenses as may be incurred in the
enforcement of the prevailing party's rights hereunder.
(c) This Warrant shall be exercisable as provided for herein, except
that in the event that the expiration date of this Warrant shall fall on a
Saturday, Sunday or United States federally
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recognized Holiday, this expiration date for this Warrant shall be extended to
5:00 p.m. Pacific standard time on the business day following such Saturday,
Sunday or recognized Holiday.
IN WITNESS WHEREOF, TVIA, INC. has caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated: July 27, 2000.
TVIA, INC., a California corporation
By /s/ Jack Guedj
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Its President
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NOTICE OF EXERCISE
To: TVIA, INC.
(1) The undersigned hereby (A) elects to purchase _________ shares of
Common Stock of TVIA, Inc., pursuant to the provisions of Section 3(a) of the
attached Warrant, and tenders herewith payment of the purchase price for such
shares in full, or (B) elects to exercise this Warrant for the purchase of
_____________ shares of Common Stock, pursuant to the provisions of Section 3(b)
of the attached Warrant.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock are being acquired solely for the
account of the undersigned and not as a nominee for any other party, or for
investment, and that the undersigned will not offer, sell or otherwise dispose
of any such shares of Common Stock except under circumstances that will not
result in a violation of the Securities Act of 1933, as amended, or any
applicable state securities laws.
(3) 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:
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(Name)
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(Name)
(4) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is specified
below:
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(Name)
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(Date) (Name)
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under the within Warrant, with respect to the number of shares
of Common Stock set forth below:
Name of Assignee Address No. of Shares
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and does hereby irrevocably constitute and appoint Attorney to make such
transfer on the books of TVIA, INC., maintained for the purpose, with full power
of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof or conversion thereof are being acquired for investment and that
the Assignee will not offer, sell or otherwise dispose of this Warrant or any
shares of stock to be issued upon exercise hereof or conversion thereof except
under circumstances which will not result in a violation of the Securities Act
of 1933, as amended, or any applicable state securities laws. Further, the
Assignee has acknowledged that upon exercise of this Warrant, the Assignee
shall, if requested by the Company, confirm in writing, in a form satisfactory
to the Company, that the shares of stock so purchased are being acquired for
investment and not with a view toward distribution or resale.
Dated: ______________, 200__
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Signature of Holder
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