EXHIBIT 10.30
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK UNDERLYING THIS WARRANT OF
DESIGN AUTOMATION SYSTEMS, INC. ("COMPANY") HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), NOR UNDER ANY STATE SECURITIES
LAW AND MAY NOT BE PLEDGED, SOLD, ASSIGNED OR TRANSFERRED (i) UNTIL (A) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAW OR (B) THE COMPANY RECEIVES AN OPINION OF
COUNSEL TO THE COMPANY OR COUNSEL TO THE HOLDER OF SUCH WARRANT (PROVIDED SUCH
OTHER COUNSEL IS REASONABLY SATISFACTORY TO THE COMPANY) THAT SUCH WARRANT MAY
BE PLEDGED, SOLD, ASSIGNED OR TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES LAW.
Right to Purchase up to 25,000 shares of the
Outstanding Common Stock of Design
Automation Systems, Inc.
DESIGN AUTOMATION SYSTEMS, INC.
COMMON STOCK PURCHASE WARRANT
Design Automation Systems, Inc., a Texas corporation (the "Company"), hereby
certifies that, for value received, FINOVA Capital Corporation (the "Holder") is
entitled, subject to the terms set forth below, to purchase from the Company at
any time, or from time to time, before 5:00 p.m., Eastern time, on December 29,
2004, 25,000 shares of fully paid and non-assessable shares of Common Stock of
the Company (the "Warrant Shares"), at an exercise price of $11.70 per share
(the "Exercise Price"). The number and character of such shares of Common Stock
and the Exercise Price are subject to further adjustment as provided herein.
This Warrant is the Common Stock Purchase Warrant (the "Warrant") evidencing the
right to purchase shares of Common Stock of the Company, issued pursuant to a
certain Common Stock Warrant Purchase Agreement (the "Agreement"), dated as of
December 29, 1999, among the Company and the Holder and subject to the
Registration Rights Agreement, copies of which agreement are on file at the
principal office of the Company, and the holder of this Warrant shall be
entitled to all of the benefits of the Agreement and the Registration Rights
Agreement, as provided therein.
As used herein the following terms, unless the context otherwise requires, have
the following respective meanings:
(a) The term "Common Stock" means the Company's Common
Stock, $.001 par value per share, as authorized on the date of
the Agreement.
(b) The term "Company" shall include any corporation
which shall succeed or assume the obligations of the Company
hereunder.
(c) The term "Current Market Price" shall mean, in
respect of any share of Common Stock on any date herein
specified, the higher of (a) the appraised value per share of
Common Stock as at such date, or if there shall then be a
public market for the Common Stock, (b) the average of the
daily market prices for 15 consecutive trading days commencing
20 days before such date. The daily market price for each such
trading days shall be (i) the closing sale price on such date
or, if there is no such sale price, the average of the last
reported closing bid and asked prices on such day, as
furnished by the American Stock Exchange, the National
Association of Securities Dealers Automatic Quotation System
or the National Quotation Bureau, Inc., (ii) if none of such
corporations at the time is engaged in the business of
reporting such prices, as furnished by a similar firm then
engaged in such business, or (iii) if there is no such firm,
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as furnished by any member of the NASD selected mutually by
the Holder and the Company or, if they cannot agree upon such
selection, as selected by two such members of the NASD, one of
which shall be selected by the Holder and one of which shall
be selected by Company.
(e) The term "Other Securities" refers to any stock
(other than Common Stock) and other securities of the Company
or any other person (corporate or otherwise) which the holders
of the Warrants at any time shall be entitled to receive, or
shall have received, on the exercise of the Warrants, in lieu
of or in addition to Common Stock, or which at any time shall
be issuable or shall have been issued in exchange for or in
replacement of Common Stock or other Securities pursuant to
Section 3 or otherwise.
(f) The term "Outstanding" shall mean, when used with
reference to Common Stock, at any date as of which the number
of shares thereof is to be determined, all issued shares of
Common Stock, except shares then owned or held by or for the
account of the Company thereof, and shall include all shares
issuable in respect of outstanding scrip or any certificates
representing fractional interests in shares of Common Stock.
All capitalized terms used herein without specific definition shall have the
meanings assigned to such terms in the Agreement.
Exercise of Warrant.
FULL EXERCISE. THIS WARRANT MAY BE EXERCISED IN FULL BY THE HOLDER HEREOF BY
SURRENDER OF THIS WARRANT, WITH THE FORM OF SUBSCRIPTION AT THE END HEREOF DULY
EXECUTED BY SUCH HOLDER, TO THE COMPANY AT ITS PRINCIPAL OFFICE, ACCOMPANIED BY
PAYMENT, IN CASH OR BY CERTIFIED OR OFFICIAL BANK CHECK PAYABLE TO THE ORDER OF
THE COMPANY, IN THE AMOUNT OBTAINED BY MULTIPLYING THE NUMBER OF SHARES OF
COMMON STOCK FOR WHICH THIS WARRANT IS THEN EXERCISABLE BY THE EXERCISE PRICE
THEN IN EFFECT.
PARTIAL EXERCISE. THIS WARRANT MAY BE EXERCISED IN PART (IN LOTS OF NOT LESS
THAN 1,000 OF THE THEN OUTSTANDING SHARES OF COMMON STOCK THE COMPANY OR, IF
THIS WARRANT IS THEN EXERCISABLE FOR A LESSER AMOUNT, IN SUCH LESSER AMOUNT) BY
SURRENDER OF THIS WARRANT IN THE MANNER AND AT THE PLACE PROVIDED IN SUBSECTION
2.1 EXCEPT THAT THE AMOUNT PAYABLE BY THE HOLDER ON SUCH PARTIAL EXERCISE SHALL
BE THE AMOUNT OBTAINED BY MULTIPLYING (A) THE NUMBER OF SHARES OF COMMON STOCK
DESIGNATED BY THE HOLDER IN THE SUBSCRIPTION NOTICE IN THE FORM ANNEXED HERETO
BY (B) THE EXERCISE PRICE THEN IN EFFECT. ON ANY SUCH PARTIAL EXERCISE THE
COMPANY AT ITS EXPENSE WILL FORTHWITH ISSUE AND DELIVER TO OR UPON THE ORDER OF
THE HOLDER HEREOF A NEW WARRANT OR WARRANTS OF LIKE TENOR, IN THE NAME OF THE
HOLDER HEREOF OR AS SUCH HOLDER (UPON PAYMENT BY SUCH HOLDER OF ANY APPLICABLE
TRANSFER TAXES) MAY REQUEST, CALLING IN THE AGGREGATE ON THE FACE OR FACES
THEREOF FOR THE AMOUNT OF SHARES OF COMMON STOCK FOR WHICH SUCH WARRANT OR
WARRANTS MAY STILL BE EXERCISED.
COMPANY ACKNOWLEDGMENT. THE COMPANY WILL, AT THE TIME OF THE EXERCISE OF THE
WARRANT, UPON THE REQUEST OF THE HOLDER HEREOF ACKNOWLEDGE IN WRITING ITS
CONTINUING OBLIGATION TO AFFORD TO SUCH HOLDER ANY RIGHTS TO WHICH SUCH HOLDER
SHALL CONTINUE TO BE ENTITLED AFTER SUCH EXERCISE IN ACCORDANCE WITH THE
PROVISIONS OF THIS WARRANT. IF THE HOLDER SHALL FAIL TO MAKE ANY SUCH REQUEST,
SUCH FAILURE SHALL NOT AFFECT THE CONTINUING OBLIGATION OF THE COMPANY TO AFFORD
TO SUCH HOLDER ANY SUCH RIGHTS.
NO RIGHTS AS STOCKHOLDER. THIS WARRANT DOES NOT ENTITLE THE HOLDER HEREOF TO ANY
VOTING RIGHTS OR OTHER RIGHTS AS A STOCKHOLDER OF THE COMPANY PRIOR TO ITS
EXERCISE.
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Delivery of Stock Certificate, etc. on Exercise. As soon as practicable after
the exercise of this Warrant in full or in part and in any event within 10 days
thereafter, the Company at its expense (including the payment by it of any
applicable issue taxes, but not income taxes of the holder) will cause to be
issued in the name of and delivered to the holder hereof, or as such holder
(upon payment by such holder of any applicable transfer taxes) may direct, a
certificate or certificates for the number of fully paid and nonassessable
shares of Common Stock (or Other Securities) to which such holder shall be
entitled on such exercise, plus, in lieu of any fractional share to which such
holder would otherwise be entitled, cash value to such fraction multiplied by
the then Current Market Value of one full share, together with any other stock
or other securities and property (including cash, where applicable) to which
such holder is entitled upon such exercise pursuant to Section 1 or otherwise.
Adjustments.
The number of shares of Common Stock for which this Warrant is exercisable, or
the price at which such shares may be purchased upon exercise of this Warrant,
shall be subject to adjustment from time to time as set forth in this Section 4.
The Company shall give each holder notice of any event described below which
requires an adjustment pursuant to this Section 4 at the time of such event.
STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. IF AT ANY TIME THE COMPANY
SHALL:
take a record of the holders of its Common Stock for the purpose of entitling
them to receive a dividend payable in, or other distribution of, additional
shares of Common Stock,subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock, or combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock, then, (i) the
number of shares of Common Stock for which this Warrant is exercisable
immediately after the occurrence of any such event shall be adjusted to equal
the number of shares of Common Stock which a record holder of the same number of
shares of Common Stock for which this Warrant is exercisable immediately prior
to the occurrence of such event would own or be entitled to receive after the
happening of such event, and (ii) the Exercise Price shall be adjusted to equal
(A) the Exercise Price multiplied by the number of shares of Common Stock for
which this Warrant is exercisable immediately prior to the adjustment divided by
(B) the number of shares for which this Warrant is exercisable immediately after
such adjustment.
CERTAIN OTHER DISTRIBUTIONS. IF AT ANY TIME THE COMPANY SHALL TAKE A RECORD OF
THE HOLDERS OF ITS COMMON STOCK FOR THE PURPOSE OF ENTITLING THEM TO RECEIVE ANY
DIVIDEND OR OTHER DISTRIBUTION OF:
any shares of its stock or any other securities or property of any nature
whatsoever (other than cash, Convertible Securities or additional shares of
Common Stock), or any warrants or other rights to subscribe for or purchase any
shares of its stock or any other securities or property of any nature whatsoever
(other than cash, Convertible Securities or additional shares of Common Stock),
the holder shall be entitled to receive such dividends or distributions as if
the holder has exercised the Warrant. A reclassification of the Common Stock
(other than a change in par value, or from par value to no par value or from no
par value to par value) into shares of Common Stock and shares of any other
class of stock shall be deemed a distribution by Company to the holders of its
Common Stock of such shares of such other class of stock within the meaning of
this Section 4.2 and, if the outstanding shares of Common Stock shall be changed
into a larger or smaller number of shares of Common Stock as a part of such
reclassification, such change shall be deemed a subdivision or combination, as
the case may be, of the outstanding shares of Common Stock within the meaning of
Section 3.2.
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No Dilution or Impairment. The Company will not by any action, including,
without limitation, by amending its Articles 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 the Warrants, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of such action as may be necessary or appropriate in order to protect the
rights of the holders of the Warrants against dilution or other impairment, but
only as provided herein. Without limiting the generality of the foregoing, the
Company (a) will not increase the par value of any stock receivable on the
exercise of this Warrant above the amount payable therefor on such exercise, (b)
will take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
stock on the exercise of this Warrant and (c) will use its best effects to
obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof as may be necessary to enable
Company to perform its obligations under this Warrant.
Upon the request of the holder, the Company will at any time during the period
this Warrant is outstanding acknowledge in writing, in form satisfactory to the
holder, the continuing validity of this Warrant and the obligations of the
Company hereunder.
Certificate as to Adjustments. In each case of any adjustment or readjustment in
the shares of Common Stock issuable on the exercise of the Warrants, the Company
at its expense will compute such adjustment or readjustment in accordance with
the terms of the Warrants and prepare a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. If requested by the holder hereof, the
Company will provide an accountant's certificate verifying the accuracy of the
adjustments. The Company will forthwith mail a copy of each such certificate of
each holder of a Warrant, and will, on the written request at any time of any
holder of a Warrant, furnish to such holder a like certificate setting forth the
Exercise Price at the time in effect and showing how it was calculated.
Notices of Record Date, etc. 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 or other distribution, or 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, or any capital reorganization of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any transfer of all or substantially all the assets of the Company to
or consolidation or merger of the Company with or into any other person, or any
voluntary or involuntary dissolution, liquidation or winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to each
holder of a Warrant a notice specifying (i) the date on which any such 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, (ii) the date
on which any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holders of record of Common
Stock shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable on such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up, and (iii) the amount and character of any stock or other securities,
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or rights or options with respect thereto, proposed to be issued or granted, the
date of such proposed issue or grant and the persons or class of persons to whom
such proposed issue or grant is to be offered or made. Such notice shall be
mailed at least 10 days prior to the date specified in such notice on which any
such action is to be taken. Notwithstanding the foregoing, failure to give such
notice or any defect in such notice shall not effect the validity or legality of
any such transaction.
Reservation of Stock, etc. Issuable on Exercise of Warrants. The Company will at
all times reserve and keep available, solely for issuance and delivery on the
exercise of the Warrants, all shares of Common Stock from time to time issuable
on the exercise of the Warrants.
Exchange of Warrants. On surrender for exchange of any Warrant, properly
endorsed, to the Company, the Company at its expense will issue and deliver to
or on the order of the holder thereof a new Warrant and Warrants of like tenor,
calling in the aggregate on the face or faces thereof from the number of shares
of Common Stock called for on the face or faces of the Warrant or Warrants so
surrendered.
Replacement of Warrants. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of any Warrant and, in the
case of any such loss, theft or destruction of any 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.
Negotiability, etc. This Warrant is issued upon the following terms, to all of
which each holder or owner hereof by the taking hereof consents and agrees:
Upon (and not before) the occurrence of an Exercise Event, title to this Warrant
may be transferred by endorsement (by the holder hereof executing the form of
assignment at the end hereof) and delivery in the same manner as in the case of
a negotiable instrument transferable by endorsement and delivery; and subject to
(a) above, any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is empowered to
transfer absolute title thereto by endorsement and delivery hereof to a bona
fide purchaser hereof for value; each prior taker or owner waives and renounces
all of his equities or rights in this Warrant in favor of each such bona fide
purchaser, and each such bona fide purchaser shall acquire absolute title hereto
and to all rights represented hereby.
Notices, etc. All notices and other communications from the Company to the
holder of this Warrant shall be mailed by first class registered or certified
mail, postage prepaid, at such address as may have been furnished to the Company
in writing by such holder or, until any such holder furnishes to the Company an
address, then to, and at the address of, the last holder of this Warrant who has
so furnished an address to the Company.
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Miscellaneous. This Warrant and any term hereof may be changed, 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. Any
covenant or provision hereof may be omitted or waived with the written consent
of the holder or holders of at least fifty percent (50%) of the Common Stock
issued and issuable upon exercise of the Warrant. This Warrant shall be
construed and enforced in accordance with and governed by the laws of the State
of Texas. The headings in this Warrant are for purposes of reference only, and
shall not limit or otherwise affect any of the terms hereof. This Warrant is
being executed as an instrument under sale. The invalidity or unenforceability
of any provision hereof shall in no way affect the validity or enforceability of
any other provision.
Expiration. The right to exercise this Warrant shall expire at 5:00 p.m.,
Eastern time, December 29, 2004.
IN WITNESS WHEREOF, the Company has executed this Warrant under seal as of the
date first written above.
DESIGN AUTOMATION SYSTEMS, INC.
BY: /s/ Charles H. Leaver, Jr.
--------------------------
Name: Charles H. Leaver, Jr.
Title: President
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FORM OF SUBSCRIPTION
[To be executed only upon exercise of Warrant]
TO DESIGN AUTOMATION SYSTEMS, INC.
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 DESIGN AUTOMATION SYSTEMS, INC. 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
__________________. If said number of shares shall not be all the interest
issuable upon exercise of the attached Warrant, a new Warrant is to be issued in
the name of the Undersigned for the balance remaining.
Dated:
---------------------------------
(Signature must conform to
name of holder as specified
on the face of the Warrant)
--------------------------------
(Address)
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FORM OF ASSIGNMENT
(To be executed only upon 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 DESIGN AUTOMATION SYSTEMS, INC. to
which the within Warrant relates, and appoints ______________ Attorney to
transfer such right on the books of DESIGN AUTOMATION SYSTEMS, INC. with full
power of substitution in the premises.
Dated:
------------------------------
(Signature must conform to
name of holder as specified
on the face of the Warrant)
------------------------------
(Address)
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