EXHIBIT 4.1
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND SUCH MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED UNLESS THERE IS A REGISTRATION STATEMENT IN
EFFECT COVERING THIS WARRANT OR THERE IS AVAILABLE AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED.
WARRANT TO PURCHASE COMMON UNITS
Date of Issuance: August ___, 2000 Certificate No. W-1
FOR VALUE RECEIVED, Micrografx, Inc., a Texas corporation (the
"COMPANY"), hereby grants to Prentiss Properties Trust, a Maryland real estate
investment trust ("PRENTISS"), or its registered assigns (the "REGISTERED
Holder") the right to purchase from the Company one hundred thousand (100,000)
shares of common stock, par value $0.01 per share, of the Company (the "COMMON
STOCK") at an exercise price of $1.03 per share, all as set forth in SECTION 1
hereof. The number of shares purchasable upon exercise of this warrant
("WARRANT") and the exercise price are subject to adjustment as provided in
SECTION 2 hereof. This Warrant is issued by the Company pursuant to the
Termination of Lease and Release Agreement, dated of even date herewith, between
the Company and Prentiss (the "AGREEMENT"). Certain capitalized terms used
herein are defined in SECTION 3 hereof.
This Warrant is subject to the following provisions:
Section 1. EXERCISE OF WARRANT.
1A. EXERCISE PERIOD. The Registered Holder may exercise, in
whole or in part, the purchase rights represented by this Warrant, at any time
and from time to time commencing on the Date of Issuance and shall remain
exercisable until 5:00 p.m., Texas time, on the seventh anniversary of the Date
of Issuance or, if such day is not a Business Day, on the next preceding
Business Day (the "EXERCISE PERIOD").
1B. PURCHASE OF COMMON STOCK. Subject to the terms and
conditions hereinafter set forth and set forth in the Agreement, the Registered
Holder is entitled, upon receipt by the Company of the items specified in
SECTION 1D hereof, to purchase from the Company up to one hundred thousand
(100,000) shares of Common Stock. The number of shares of Common Stock issuable
pursuant to this SECTION 1B are subject to adjustment pursuant to SECTION 2
hereof (such number of shares of Common Stock, as adjusted from time to time, is
herein referred to as the "PURCHASABLE COMMON STOCK").
1C. EXERCISE PRICE. The purchase price for the Common
Stock upon exercise of this Warrant shall be $1.03 per share. Such price shall
be subject to adjustment pursuant to SECTION 2 hereof (such price, as
adjusted from time to time, is herein referred to as the "EXERCISE PRICE").
1D. EXERCISE PROCEDURE.
(i) CASH EXERCISE. This Warrant shall be deemed to
have been exercised when the Company has received all of the following items
(the "EXERCISE TIME"):
(a) a completed Exercise Agreement, as
described in paragraph 1E below, executed by the Person exercising all
or part of the purchase rights represented by this Warrant
(the "PURCHASER");
(b) this Warrant;
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(c) if this Warrant is not registered in
the name of the Purchaser, an Assignment or Assignments in the form
set forth in EXHIBIT A hereto evidencing the assignment of this
Warrant to the Purchaser, in which case the Registered Holder
shall have complied with the provisions set forth in SECTION 6 hereof;
and
(d) a check payable to the Company
in an amount equal to the product of the Exercise Price multiplied
by the number of shares of Common Stock being purchase upon such
exercise (the "AGGREGATE EXERCISE PRICE").
(ii) NET ISSUANCE. In lieu of exercising thiS
Warrant pursuant to SECTION 1D(I), the Purchaser may elect to receive,
without the payment by such Purchaser of any additional consideration,
shares of Common Stock equal to the value of thisWarrant (or the portion
thereof being canceled) by surrender of this Warrant at the principal office of
the Company together with notice of such election on the Exercise Agreement,
in which event the Company shall issue to the Purchaser hereof a number of
shares of Common Stock computed using the following formula:
(A - B)
X = ____________ * Y
A
Where: X = The number of shares of Common Stock
to be issued to the Purchaser pursuant to
this net exercise;
Y = The number of shares of Common Stock
in respect of which the net issue
election is made
A = The Fair Market Value of one share of
Common Stock at the time the net issue
election is made;
B = The Exercise Price (as adjusted to the
date of the net issuance).
(iii) Certificates for the shares of Common Stock
purchased upon exercise of this Warrant shall be delivered by the Company to
the Purchaser within ten (10) Business Days after the date of the Exercise Time.
Unless this Warrant has expired or all of the purchase rights represented
hereby have been exercised, the Company shall prepare a new Warrant,
substantially identical hereto, representing the rights formerly represented
by this Warrant which have not expired or been exercised and shall within
such ten (10) day period, deliver such new Warrant to the Person designated
for delivery in the Exercise Agreement.
(iv) The shares of Common Stock issuable
upon the exercise of this Warrant shall be deemed to have been issued to the
Purchaser at the Exercise Time, and the Purchaser shall be deemed for all
purposes to have become the record holder of such shares of Common Stock at the
Exercise Time.
(v) The issuance of certificates for the
shares of Common Stock upon exercise of this Warrant shall be made without
charge to the Registered Holder or the Purchaser. Each share of Common Stock
issuable upon exercise of this Warrant shall upon payment of the Exercise
Price therefor be fully paid and nonassessable and free from all liens and
charges with respect to the issuance thereof other than state and federal
securities laws restrictions.
(vi) The Company shall not close its books
against the transfer of this Warrant or of any share of Common Stock issued
or issuable upon the exercise of this Warrant in any manner which interferes
with the timely exercise of this Warrant.
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(vii) Notwithstanding any other provision
hereof, if an exercise of all or any portion of this Warrant is to be made in
connection with a registered public offering, a sale of the Company or any
transaction or event, such exercise may, at the election of the Registered
Holder hereof, be conditioned upon the consummation of such transaction or
event in which case such exercise shall not be deemed to be effective until the
consummation of such transaction or event.
(viii) The Company shall at all times reserve and
keep available out of its authorized but unissued shares of Common Stock
solely for the purpose of issuance upon the exercise of the Warrants, such
number of shares of Common Stock issuable upon the exercise of all outstanding
Warrants. All shares of Common Stock which are so issuable shall, when
issued, be duly and validly issued, fully paid and nonassessable and free
from all taxes, liens and charges, other than state and federal securities
laws restrictions. The Company shall take all such actions as may be necessary
to assure that all shares of Common Stock may be so issued without violation
of any applicable law or governmental regulation or any requirements of any
domestic securities exchange upon which the shares of Common Stock may be listed
(except for official notice of issuance which shall be immediately
delivered by the Company upon each such issuance). The Company shall
not take any action which would cause the number of authorized but unissued
shares of Common Stock to be less than the number of such shares required to be
reserved hereunder for issuance upon exercise of the Warrants.
1E. EXERCISE AGREEMENT. Upon any exercise of this Warrant, the
Exercise Agreement shall be substantially in the form set forth in EXHIBIT B
hereto, except that if the shares of Common Stock are not to be issued in the
name of the Person in whose name this Warrant is registered the Exercise
Agreement shall also state the name of the Person to whom the certificates for
the shares of Common Stock are to be issued and if the number of shares of
Common Stock to be issued does not include all the Purchasable Common Stock, it
shall also state the name of the Person to whom a new Warrant for the
unexercised portion of the rights hereunder is to be delivered. Such Exercise
Agreement shall be dated the actual date of execution thereof.
1F. FRACTIONAL STOCK. If a fractional share of Common Stock
would be issuable upon exercise of the rights represented by this Warrant, the
Company may, at its option, within ten (10) Business Days after the date of the
Exercise Time, deliver to the Purchaser a check payable to the Purchaser in lieu
of such fractional share in an amount equal to the difference between Fair
Market Value of such fractional share as of the date of the Exercise Time and
the Exercise Price of such fractional share.
Section 2. ADJUSTMENT OF EXERCISE PRICE AND PURCHASABLE COMMON
STOCK. In order to prevent dilution of the rights granted under this Warrant,
the Exercise Price shall be subject to adjustment from time to time as provided
in this SECTION 2, and the Purchasable Common Stock shall be subject to
adjustment from time to time as provided in this SECTION 2.
2A. SUBDIVISION OR COMBINATION OF COMMON STOCK. If the Company
at any time subdivides (by any stock split, stock dividend. recapitalization or
otherwise) one or more classes of its outstanding Common Stock into a greater
number of shares, the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced and the Purchasable Common Stock
shall be proportionately increased. If the Company at any time combines (by
reverse stock split or otherwise) one or more classes of its outstanding Common
Stock into a smaller number of shares, the Exercise Price in effect immediately
prior to such combination shall be proportionately increased and the Purchasable
Common Stock shall be proportionately decreased.
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2B. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. Any recapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the Company's assets or other
transaction, in each case which is effected in such a way that the holders of
Common Stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
Common Stock is referred to herein as "ORGANIC CHANGE". Prior to the
consummation of any Organic Change, the Company shall make appropriate
provision, in the sole and reasonable discretion of the Board, to insure that
each of the Registered Holders of the Warrants shall thereafter have the right
to acquire and receive, in lieu of or in addition to (as the case may be) the
shares of Common Stock immediately theretofore acquirable and receivable upon
the exercise of such holder's Warrant, such shares of stock, securities, cash or
other assets as may be issued or payable with respect to or in exchange for the
number of shares of Common Stock immediately theretofore acquirable and
receivable upon exercise of such holder's Warrant had such Organic Change not
taken place. In any such case, the Company shall make appropriate provision, in
the sole and reasonable discretion of the Board, with respect to such holders'
rights and interests to insure that the provisions of this SECTION 2 shall
thereafter be applicable to the Warrants (including, (i) in the case of any such
consolidation, merger or sale in which the successor entity or purchasing entity
is other than the Company, an immediate adjustment of the Exercise Price to the
value for the Common Stock reflected by the terms of such consolidation, merger
or sale, and a corresponding immediate adjustment in the Purchasable Common
Stock, if the value so reflected is less than the Exercise Price in effect
immediately prior to such consolidation, merger or sale or (ii) canceling the
Warrant in exchange for replacement warrants or cash). The Company shall not
effect any such consolidation, merger or sale, unless prior to the consummation
thereof, the successor entity (if other than the Company) resulting from
consolidation or merger or the entity purchasing such assets assumes by written
instrument, in the sole and reasonable discretion of the Board, the obligation
to deliver to each such holder such shares of stock, securities, cash or other
assets as, in accordance with the foregoing provisions, such holder may be
entitled to acquire.
2C. ADJUSTMENTS FOR DIVIDENDS OR OTHER SECURITIES OR PROPERTY.
If while this Warrant, or any portion hereof, remains outstanding and unexpired
the holders of the securities as to which purchase rights under this Warrant
exist at the time shall have received, or, on or after the record date fixed for
the determination of eligible holders of membership interests, shall have become
entitled to receive, without payment therefor, other or additional shares of
Common Stock or other securities or property (other than cash) of the Company by
way of dividend, liquidation of otherwise, then and in each case, this Warrant
shall represent the right to acquire, in addition to the number of Purchasable
Common Stock receivable upon exercise of this Warrant, and without payment of
any additional consideration therefor, the amount of such other or additional
shares or other securities or property (other than cash) of the Company that
such holder would hold on the date of such exercise had it been the holder of
record of the security receivable upon exercise of this Warrant on the date
hereof and had thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and/or all other
additional shares available by it as aforesaid during such period, giving effect
to all adjustments called for during such period by the provisions of this
SECTION 2.
2D. CERTAIN EVENTS. If any event occurs of the type
contemplated by the provisions of this SECTION 2 but not expressly provided for
by such provisions, then the Board shall make an appropriate adjustment in the
Exercise Price and in accordance with the essential intents and principles of
the provisions of this SECTION 2, so as to protect and preserve the rights of
the Registered Holders.
2E. NOTICES.
(i) Promptly upon any adjustment of the Exercise Price,
the Company shall give written notice thereof to the
Registered Holder, setting forth in reasonable detail
and certifying the calculation of such adjustment.
(ii) The Company shall give written notice to the
Registered Holder at least ten (10) days prior to the
date on which the Company closes its books or takes a
record (A) with respect to any dividend or
distribution upon the Common Stock, (B) with respect
to any pro rata subscription offer to holders of
Common Stock or (C) for determining rights to vote
with respect to any Organic Change, dissolution or
liquidation.
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(iii) The Company shall also give written notice to the
Registered Holders at least ten (10) days prior to
the date on which any Organic Change, dissolution or
liquidation shall take place.
Section 3. DEFINITIONS. The following terms have meanings set
forth below:
"BOARD" means the board of directors of the Company.
"BUSINESS DAY" means any day other than a Saturday, a Sunday
or a day on which banks in Dallas, Texas are authorized or obligated by law or
executive order to close.
"COMMON STOCK" has the meaning set forth in the introductory
paragraph of this Warrant.
"EXERCISE PRICE" has the meaning set forth in SECTION 1B of
this Warrant.
"FAIR MARKET VALUE" means as to any security the average of
the closing prices of such security's sales on all domestic securities exchanges
on which such security may at the time be listed, or, if there have been no
sales on any such exchange on any day, the average of the highest bid and lowest
asked prices on all such exchanges at the end of such day, or, if on any day
such security is not so listed, the average of the representative bid and asked
prices quoted in the Nasdaq Stock Market System as of 4:00 P.M., New York time,
on such day, or, if on any day such security is not quoted in the Nasdaq Stock
Market System, the average of the highest bid and lowest asked prices on such
day in the domestic over-the-counter market as reported by the National
Quotation Bureau, Incorporated, or any similar successor organization, in each
such case averaged over a period of twenty-one (21) days consisting of the day
as of which "Fair Market Value" is being determined and the twenty (20)
consecutive Business Days prior to such day. If at any time such security is not
listed on any domestic securities exchange or quoted in the Nasdaq Stock Market
System or the domestic over-the-counter market, the "Fair Market Value" shall be
the fair value thereof determined by the managing members of the Company in its
sole and reasonable good faith judgment.
"PERSON" means an individual, a partnership, a joint venture,
a corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
Section 4. NOTICE OF MEETINGS; LIMITATIONS OF LIABILITY. The
Registered Holders of the Warrants shall be entitled to notice of all meetings
of stockholders of the Company in accordance with the Company's bylaws. No
provision hereof, in the absence of affirmative action by the Registered Holder
to purchase Common Stock, and no enumeration herein of the rights or privileges
of the Registered Holder shall give rise to any liability of such Registered
Holder for the Exercise Price acquirable by exercise hereof or as a stockholder
of the Company.
Section 5. WARRANT TRANSFERABLE. Subject to the transfer
conditions referred to in the legend endorsed hereon, this Warrant and all
rights hereunder are transferable, in whole or in part, without charge to the
Registered Holder, upon surrender of this Warrant with a properly executed
Assignment (in the form of EXHIBIT A hereto) at the principal office of the
Company. Such transfer shall be recorded on the books of the Company. In the
event of a partial transfer, the Company shall issue to the holders one or more
appropriate new warrants.
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Section 6. WARRANT EXCHANGEABLE FOR DIFFERENT DENOMINATIONS.
This Warrant is exchangeable, upon the surrender hereof by the Registered Holder
at the principal office of the Company, for new Warrants of like tenor
representing in the aggregate the purchase rights hereunder, and each of such
new Warrants shall represent such portion of such rights as is designated by the
Registered Holder at the time of such surrender. The date the Company initially
issues this Warrant shall be deemed to be the "DATE OF ISSUANCE" hereof
regardless of the number of times new certificates representing the unexpired
and unexercised rights formerly represented by this Warrant shall be issued. All
Warrants representing portions of the rights hereunder are referred to herein as
the "WARRANTS."
Section 7. REPLACEMENT. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing this Warrant, and in the case of any such loss, theft
or destruction, upon receipt of an unsecured indemnity agreement of the
Registered Holder in form reasonably satisfactory to the Company, or, in the
case of any such mutilation upon surrender of such certificate, the Company
shall (at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the same rights represented by such lost,
stolen, destroyed or mutilated certificate and dated the date of such lost,
stolen, destroyed or mutilated certificate.
Section 8. NOTICES. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by hand or mailed by first class certified or registered mail, return receipt
requested, postage prepaid to the following addresses or at such other address
or addresses as may have been furnished in writing:
If to the Company:
John Carradine
8144 Walnut Hill Lane, Suite 1050
Dallas, Texas 75231
If to Prentiss:
Prentiss Properties Trust
3890 West Northwest Hwy., Suite 400
Dallas, Texas 75220
Attention: Kevan Dilbeck, Esq.
Any notice to any other Registered Holder shall be to such Registered Holder's
address or telecopy as it appears in the records of the Company (unless
otherwise indicated in writing by any such Registered Holder). Notices provided
in accordance with this SECTION 8 shall be deemed delivered upon personal
delivery or two business days after deposit in the mail.
Section 9. AMENDMENT AND WAIVER. Except as otherwise provided
herein, the provisions of the Warrants may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
Registered Holders of Warrants representing a majority of the Common Stock
obtainable upon exercise of the Warrants; provided, that no such action may
change the Exercise Price of the Warrants or the number of shares or class of
shares obtainable upon exercise of each Warrant without the written consent of
the Registered Holders of Warrants representing 100% of the Common Stock
obtainable upon exercise of the Warrants.
Section 10. WARRANT REGISTER. The Company shall maintain at
its principal executive offices books for the registration and the registration
of transfer of Warrants. The Company may deem and treat the Registered Holder as
the absolute owner hereof (notwithstanding any notation of ownership or other
writing hereon made by anyone) for all purposes and shall not be affected by any
notice to the contrary.
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Section 11. DESCRIPTIVE HEADINGS. The descriptive headings
of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant.
Section 12. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Texas or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Texas.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers under its corporate seal and to be
dated the Date of Issuance hereof.
MICROGRAFX, INC.
By: /S/ JOHN M. CARRADINE
-----------------------
Name: John M. Carradine
Title: Chief Financial
Officer:
Attest:
By: /S/GRETA WALLACE
----------------
Name: Greta Wallace
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